Lords Sitting of 13 February 1979

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.

TAIWAN: UK RELATIONSHIP
Lord MONSON: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether, in view of recent developments, they will give the fullest moral support to the people of Taiwan in their efforts to maintain their prosperity and freedom.
The MINISTER of STATE, FOREIGN and COMMONWEALTH OFFICE (Lord Goronwy-Roberts): My Lords, Her Majesty's Government acknowledge the position of the Chinese Government that Taiwan is a Province of the People's Republic of China. It has noted that Vice-Premier Deng Xiaoping has said that China will fully respect the present realities on Taiwan and that there will be no change in the social system on Taiwan after reunification, unless the people want it.
Lord MONSON: My Lords, I thank the noble Lord for his reply. Of course I recognise that diplomatic niceties necessitate a certain circumspection on his part. Nevertheless, would he not agree that even if one disregards the moral aspect—which one ought not to do—it is still extremely foolish from the point of view of coldblooded real politik to give one's friends and allies, and, even more important, one's potential friends and allies, the impression that the West is prepared to jettison, at the drop of a hat, a small, friendly country which has done us no harm and which has pulled itself up largely by its own unaided efforts, for the sake of possibly transient commercial and strategic advantage elsewhere?
Lord GORONWY-ROBERTS: My Lords, the noble Lord saw this in most unexceptionable terms. We certainly intend no harm to Taiwan. We enjoy a substantial trade. It is somewhat adverse to us at the moment but the terms are gradually improving in our favour. We propose—and the People's Republic expect this—to continue to have normal relations on the basis of commercial and other transactions. We have of course taken a stand from as early as Cairo and Potsdam that Taiwan is a part of mainland China. It is a very great gain that, on the occasion of his visit to the United States, the Chinese Vice-President should once more have emphasised that the People's Republic do not intend to start anything which would imperil the position of Taiwan as it now is. My own view is that the Chinese Government will continue to assert its claim to sovereignty over the Taiwan Province—as they regard it—but to maintain the present method of dealing with that Province. We for the past 30 years have done precisely that.
Lord SEGAL: My Lords, is my noble friend aware that if ever Taiwan loses her independence, it will only create another vast refugee problem similar to the one now existing in Vietnam, with all its appalling international complications? Is it not our duty, even on humanitarian grounds alone, to try to forestall the vast amount of human suffering that would inevitably ensue?
Lord GORONWY-ROBERTS: My Lords, certainly, as always, we shall do everything we can to forestall unnecessary suffering. We cannot of course intrude or interfere in every part of the world, and I sometimes feel that the period of automatic European intervention is long over. What I think we should bear in mind is that the Chinese Government in Peking, through its Vice-Premier in particular, have made a very helpful, very forthcoming series of statements in relation to Taiwan. I think that we can leave it there. I think we may expect that the Chinese, while asserting their claim to sovereignty, which we and others in the West have accepted for many years, will nevertheless avoid any action which will create new difficulties in that part of the world.
The Earl of SELKIRK: My Lords, can the noble Lord say whether our Ambassador in Peking will be going to Taiwan?

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Would that not make our relations with Taiwan rather closer?
Lord GORONWY-ROBERTS: My Lords, an Ambassador from Peking to Taiwan? I have no idea. I must ask the Chinese, as no doubt the noble Earl will.
Lord HAILSHAM of SAINT MARY-LEBONE: My Lords, lest there be any mistake, I thought that my noble friend was asking a somewhat different question from that to which the noble Lord answered. I believe that if he had heard it correctly the noble Lord would probably have wished to answer the question in the negative.
Lord GORONWY-ROBERTS: My Lords, in vain is the snare spread before the watchful bird! Before I return any answer to the noble Earl, knowing his background and experience, I should wish to hear the question again.
The Earl of SELKIRK: My Lords, the question that I asked the noble Lord was whether our Ambassador in Peking will be visiting Taiwan? I suppose that might add to the closer relations of this country with Taiwan.
Lord GORONWY-ROBERTS: I am most grateful to the noble Earl for repeating his question, and indeed for the timely assistance from the Conservative Front Bench—which is very acceptable, at least these days. I have no knowledge of any plans by our Ambassador to visit Taiwan from Peking. If it is of particular interest to the noble Earl and others, I will look into the matter.
Lord SEGAL: My Lords, would my noble friend agree that the inhabitants of Taiwan are entitled to the same rights of self-determination as those of any other independent territory, not excluding Gibraltar and the Falkland Islands?
Lord GORONWY-ROBERTS: Certainly, my Lords; all composite communities on a territorial basis are entitled to assert their wishes. I was rather encouraged when the Vice-Premier, speaking, I think, in the United States, said there would be no change in the internal
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policy of Taiwan, even after the reunification and without self-determination of the Taiwanese.

SOCIAL WORKERS: NATIONAL JOINT COUNCIL
2.45 p.m.
Baroness VICKERS: 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, in view of the fact that probation officers, police, teachers and firemen have separate negotiating machinery, whether they consider that the National Joint Council is itself an appropriate body to determine the salaries and service conditions of social workers; and whether they will consider providing separate negotiating machinery, as the different nature of their job calls for distinct salary and service conditions.
The PARLIAMENTARY UNDERSECRETARY of STATE, DEPARTMENT of the ENVIRONMENT (Baroness Stedman): My Lords, the scope and constitution of the National Joint Council for Administrative, Professional, Technical and Clerical Services is determined by agreement between the local authorities as employers and the unions representing their white collar staff, including social workers. It would be for the parties to that agreement to consider whether changes in the negotiating machinery for social workers were to be appropriate.
Baroness VICKERS: My Lords, while thanking the noble Baroness for that reply, may I ask whether she intends giving any guidance, or having any discussions with them to see if this very difficult problem can be settled? Also, could she tell me how many are still on strike and what action the Government propose to take?—because this is a very important service and much needed.
Baroness STEDMAN: My Lords, in so far as the negotiating machinery is concerned, this is not a matter in which the Government can intervene. It is a matter between the local authorities and the white collar workers themselves. If they come

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to us jointly and say that is how they want things, we would raise no objections. In so far as the present situation is concerned, I am not able at this moment to give the noble Baroness figures. What I can say is that a new national framework for the grading of individual social workers was agreed by the National Joint Council last week. We hope that this will lead to a quick return to work of those social workers who are still on strike, and the Secretary of State for Social Services is considering whether there are ways in which he can help social workers and the agencies within which they work to get over the bitterness and the damage which industrial action so often causes.
Baroness FAITHFULL: My Lords, may I ask the Minister whether that means that her right honourable friend is likely to set up a committee of inquiry into the structure and management of the social workers, in view of the disturbance and distress both on the part of the public and those receiving the service? May I further ask the Minister whether her right honourable friend could not intervene, perhaps on a voluntary basis, in the present negotiating machinery?—which I think perhaps is not very satisfactory in view of the fact that those on the councils are not social workers and do not know the work.
Baroness STEDMAN: My Lords, to take the second part of the question first, the social services functions, as the noble Baroness knows, are exercised by the local authorities under the general guidance of the Secretary of State for Social Services. He has no statutory responsibilities or powers for any specific functions to be performed by himself, save in certain cases under default powers. The local authorities are also wholly responsible for the pay and conditions of service of their own workers. Therefore it is for them, in consultation with their staff, to determine the most appropriate negotiating arrangements. Negotiations covering this group of staff in the National Joint Council for the Administrative, Professional, Technical and Clerical Services has now teached a successful conclusion. As I said earlier, we hope this will mean that the social workers will go back.
Regarding the earlier question asked by the noble Baroness, my right honour-
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able friend has not decided to have a committee of inquiry. He feels it would be a very serious matter to take negotiations out of the hands of the negotiators within the existing machinery, however inadequate noble Lords may think that machinery is. A new national framework for the grading of the individual social workers was agreed by the National Joint Council last week. We hope this means that they are soon going back to work, and the Secretary of State is considering whether there are ways in which he can help the social workers and also the relationship between the social workers and the public. The public's expectation of what they think they ought to get from the social service is obviously a related matter, but my right honourable friend does not think it right for a committee of inquiry.
Lord DERWENT: My Lords, there was one statement made by the noble Baroness which I did not quite understand: it may be my ignorance. She said that the Government have no right to interfere in the negotiations between the parties concerned. She went on to say that, if they came to an agreement, the Government would not interfere—but have they the right to interfere, if they cannot do so at the beginning?
Baroness STEDMAN: My Lords, we have no statutory right to intervene, save in the question of default powers; and we do not consider that the current situation of industrial action calls for default powers. It is a matter between the local authorities and the employers themselves. We have no statutory powers in that respect.
Lord ROCHESTER: My Lords, can the noble Baroness go a little further and, contrary to the suggestion put forward by the noble Baroness, Lady Vickers, agree that, far from there being need for even more separate negotiating procedures within the machinery for pay determination in the public services, there is room for a more unified approach to these matters?
Baroness STEDMAN: No, my Lords. I should not want to go as far as that, because there are differences in all local authority areas. There are differences in the social strains and in the demands that

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are made on the social services. The new salary range, and the new structure for the three grades of social workers, takes into account the level of duties and responsibilities. It gives scope for re-grading which we have said need not wait until the annual pay talks in July, but can take place right away. We hope that it will be possible for local authorities to slot their present social workers into these three gradings, to give them job satisfaction and, also, to have regard to the type of circumstances in which they have to work within the individual local authorities.
Lord BALOGH: My Lords, will my noble friend agree that a fractioning of the negotiating agency makes for leap-frogging inflation?
Baroness STEDMAN: My Lords, there are historical reasons why teachers, firemen, police, probation officers and other people have their own negotiating machinery. But the scope and constitution of the administrative, professional, technical and clerical services are, at this point of time, all in one. If the two sides to the argument came to the Government and said: "Yes, this is how we should like it to be," and asked for separate negotiating machinery, we should agree to that if it were the wish of both sides. But at the moment that suggestion has not come forward from the social workers.
Lord BALOGH: My Lords, will my noble friend read the paper called A Better Way, which is admirably subscribed to by five or six trade union leaders?
Baroness STEDMAN: My Lords, I think I should want notice of that question. It goes rather wider than the original Question.

CHARITIES AND TAX CONCESSIONS
2.52 p.m.
Baroness SHARPLES: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will accept the recommendations of the Goodman Committee to make specified tax concessions in order to encourage donations to charity.
The SOLICITOR-GENERAL for SCOTLAND (Lord McCluskey): My Lords, I am unable to say whether or not the Government will accept the recommendations referred to, as they and other aspects of the law affecting charities are still being considered.
Baroness SHARPLES: My Lords, I thank the noble and learned Lord for that not entirely satisfactory Answer. I am sure he knows that there are nine Western European countries that give tax concessions in this way. May I ask him one further question? Are the Government considering changing from a seven-year covenant to, possibly, a four-year covenant for individuals?
Lord McCLUSKEY: My Lords, as those who are familiar with the report will be aware, this is one of the recommendations and it is one which is to be considered by Ministers. But Ministers will take the opportunity of considering not simply the recommendations which have been made by the Committee headed by the noble Lord, Lord Goodman, but also the Tenth Report of the Expenditure Committee and, indeed, the Charity Law Reform Committee. In other words, a very wide-ranging review of the law relating to charity is to be made and it is that which Ministers will consider. In the context of that review, this recommendation will, of course, be looked at.
Lord CRAIGTON: My Lords, I agree with everything that the Minister said, except for the fact that this review "is to be made". Is he aware that this has been going on for a very long while, and it is time that something was done about it?
Lord McCLUSKEY: My Lords, if the noble Lord is referring to the law relating to charities, it has been going on since at least 1601. But the report which is referred to in the Question was published in 1976. It contains a number of recommendations which are not entirely at one with the recommendations of the Tenth

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Report of the Expenditure Committee. Indeed, one of the problems is that all these different recommendations have to be looked at to see whether they can be reconciled, and whether the law which has been standing since 1601, and which has been modified by a number of cases since, can be improved by consideration and perhaps by the publication of a Green or White Paper.
Baroness MACLEOD of BORVE: My Lords, is the noble and learned Lord aware—I am sure that he is—that these days many charities are suffering from lack of funds? But there was a recommendation in the Goodman Report that charities should be free to reclaim VAT in excess of £25 on their expenses, which would help charities enormously. I, for one, would be most grateful if the noble and learned Lord could give us some idea of when we are likely to have the results of the report.
Lord McCLUSKEY: My Lords, as to the value added tax recommendation, that does not fall specifically within the terms of this Question, because it does not relate to encouragement of donations to charity. But, of course, that recommendation must be looked at along with others. This matter has been raised in the House earlier and there have been previous discussions about it. It would be dishonest of me to say that we shall come to the matter soon. I can say that we hope to come to it before very long.
Lord HAILSHAM of SAINT MARY-LEBONE: My Lords, while not pursuing this fine Scottish legal distinction, may I ask the noble and learned Lord, when he reports to his colleagues, to tell them to bear in mind that charities save the Exchequer a lot of money by doing work which is of a public nature and which would otherwise have to be undertaken at the expense of the taxpayer?
Lord McCLUSKEY: My Lords, I certainly acknowledge that, and indeed that view is made very apparent in even clearer terms by the noble Lord, Lord Goodman, and his Committee in the report referred to. That is well understood, and I am sure that it is an important consideration that must lie behind any scheme.
Viscount MONCKTON of BRENCH-LEY: My Lords, will the noble and learned Lord have a look at the American system of annuities for charities? I know that this is outside the immediate scope of this Question, but hospitals and churches in the United States can take capital sums, usually from those who are unmarried or without children, and in return give annuities with tax advantages and benefits to the charities concerned.
Lord McCLUSKEY: My Lords, I will draw the attention of my right honourable and honourable friends in another place to what the noble Viscount has said.

COAL: CONVERSION TO LIQUID FUELS
2.57 p.m.
Lord THOMAS: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they are satisfied that sufficient effort is being applied in the United Kingdom to the development of processes for the conversion of coal into oils suitable for use in internal combustion engines, especially those operating on the compression ignition (i.e. diesel) principle.
Lord STRABOLGI: My Lords, the Government are satisfied that sufficient work is being done in the United Kingdom on the conversion of coal into liquid fuels for internal combustion engines. The Department of Energy is to support the National Coal Board in design studies on two 25 tonne per day coal liquefaction pilot plants aimed at the production of the full range of transport fuels and chemical feedstocks. If the design studies are encouraging, the Government are prepared to provide up to £20 million towards the £30 million expenditure for the construction and operation of these plants.
Lord THOMAS: My Lords, I thank the noble Lord for that helpful and courteous Answer. Is he aware that there is great development taking place in Japan, America and Europe in the manufacture

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of small-bore diesel engines which run on this kind of fuel? Would not an easement of taxation on diesel fuel, whether produced from coal or otherwise, be a helpful move in obtaining energy conservation in future years?
Lord STRABOLGI: My Lords, coal conversion processes, which we are dealing with now, generally produce a spectrum of products and present evidence suggests that it would be neither efficient nor economic to concentrate upon a single product.
Lord SHINWELL: My Lords, is my noble friend aware that there is no difficulty at all, so far as the technical aspects are concerned, in transforming coal into oil? There have been in the possession of various Governments since the First World War hundreds of schemes, some of them very efficient. The trouble is that it is so expensive, and therefore it does not possibly compete with oil that is produced in places such as Saudi Arabia, Iran and elsewhere.
Lord STRABOLGI: My Lords, the present position is that, using coal at £25 a tonne, the projected total cost of synthetic oil would be about £90 to £101 a tonne, including the cost of the coal. This is about double the present cost of natural crude oil, but if the crude goes up in price then the gap might be narrowed.
Lord HALE: My Lords, is my noble friend aware that the prospects of heavy increases in oil prices are apparently imminent, that the House has already committed itself on the Wynne-Jones Motion to a massive extra production of oil, and that all these proposals were included in the Lloyd-George programme upon which I fought my election exactly 50 years ago?
Lord STRABOLGI: My Lords, I am sure that is very interesting. The forecast submitted to the Energy Commission suggests that synthetic liquid fuels should begin to be required soon after the turn of the century.
Lord GLENKINGLAS: My Lords, does not the noble Lord agree that the
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events of the last month have totally changed the outlook for oil not only for Britain but for the world as a whole, and that the price of light crude has gone up something like 50 per cent. in a very, very short period of time? If I am roughly correct about the price which the noble Lord quoted for the conversion of coal into oil, I believe he will find that it is almost exactly the same as the present price in this country of light crude from Arabia.
Lord STRABOLGI: My Lords, we are well aware of the need to press on with coal utilisation and conversion into transport fuels and also into feedstocks. What we are doing is outlined in full in the paper Coal Technology, and I shall put a copy of it in the Library. There is no dragging of feet here.
The Earl of HALSBURY: My Lords, can the noble Lord give an undertaking that when the time is ripe to advance from the pilot plant stage to a full-scale demonstration stage, costing not tens of millions but possibly hundreds of millions, the necessary finance will be forthcoming, promptly and effectively?
Lord STRABOLGI: My Lords, I should not like to commit the Government of the day, particularly in a House which is not responsible for finance. However, I can assure the noble Earl that it would certainly be this Government's policy to press on with this very important conversion.
Lord JANNER: My Lords, as one who also fought some 50 years ago on the same issue, would my noble friend give some indication of when we are likely to get an opinion on what is going to be done, if anything? It is an extremely important matter. Certainly in the days when we were fighting, people thought that there was a very fair possibility of something being done in that direction. And that, as I say, was 50 years ago.
Lord STRABOLGI: My Lords, meetings between design contractors and the National Coal Board are presently taking place. If the design phase is encouraging, the construction phase could begin in about 18 months' time.

EDUCATION: DISRUPTION OF EXAMINATIONS
3.3 p.m.
Lord BELSTEAD: My Lords, I beg leave to ask Her Majesty's Government a Question of which I have given Private Notice. The Question is as follows:
"To ask Her Majesty's Government what advice they have given to local education authorities so as to safeguard the position of children taking 'O' and 'A' levels and CSE examinations from the disruption of their education as a result of industrial action."
Baroness LLEWELYN-DAVIES of HASTOE: My Lords, with the leave of the House, my noble friend Lady David will, at a convenient moment after 3.30, answer this Question in the form of a Statement.

RHODESIA: AIRLINER CRASH
Baroness ELLES: My Lords, I beg leave to ask Her Majesty's Government a Question of which I have given Private Notice. The Question is as follows:
"To ask Her Majesty's Government whether they will make a Statement about the shooting down of the Viscount airliner at Kariba in Rhodesia yesterday evening."
Baroness LLEWELYN-DAVIES of HASTOE: My Lords, with the leave of the House, my noble friend Lord Goronwy-Roberts will, at a convenient moment after 3.30, answer this Question in the form of a Statement.

INTERNATIONAL MONETARY FUND BILL [H.L.]
The LORD CHANCELLOR (Lord Elwyn-Jones): My Lords, I beg to move that this Bill be now read a second time. The Bill consolidates the Bretton Woods Agreement Act 1945, which gave effect to the agreement setting up the International Monetary Fund and succeeding legislation relating to the Fund. It makes no alteration to the existing law. If read a second time, the Bill will be referred to the Joint Committee on Consolidation Bills. 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.

EXCHANGE EQUALISATION ACCOUNT BILL [H.L.]
The LORD CHANCELLOR: My Lords, I beg to move that this Bill be now read a second time. It consolidates legislation, beginning with the Finance Act 1932, relating to the Exchange Equalisation Account. This, as your Lordships know, is an account which is set up for the purpose of mitigating the effect of fluctuations in the exchange value of sterling and for various other purposes connected with international payments. The Bill is pure consolidation and makes no changes in the existing law. It will be referred to the Joint Committee on Consolidation Bills if read a second time by your Lordships. 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.

AGRICULTURAL STATISTICS BILL [H.L.]
Read 3a, with the Amendments.
Clause 8 [Citation, etc.]:
The LORD CHANCELLOR The LORD CHANCELLOR moved the following Amendments en bloc:
Page 6, leave out lines 25 and 26.
Page 7, line 6, leave out from ("words") to ("there") in line 7 and insert ("eighty of the Agriculture Act 1947")
Page 7, line 8, leave out ("and section")
Page 7, line 9, leave out ("(restrictions on disclosure of information)")
Page 7, line 22, leave out ("or section")
Page 7, line 24, leave out (", section 80 of the Agriculture Act 1947 or section").
The noble and learned Lord said: My Lords, all six Amendments form one single group of Amendments. They are all minor drafting Amendments to make it clearer that the Bill is intended to extend only to England and Wales and not to

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Scotland. With leave, I propose to move the Amendments en bloc. If any noble Lord wishes to raise a question with regard to any of them, I shall do my best to answer him. I beg to move.
On Question, Amendments agreed to en bloc.
Moved, That the Bill do now pass.—(The Lord Chancellor.)
On Question, Bill passed, and sent to the Commons.

INVERCLYDE DISTRICT COUNCIL ORDER CONFIRMATION BILL
Considered on Report.
SOLICITORS IN THE SUPREME COURTS OF SCOTLAND (AMENDMENT) ORDER CONFIRMATION BILL
Considered on Report.

MARRIAGE (ENABLING) BILL [H.L.]
3.8 p.m.
Baroness WOOTTON of ABINGER: My Lords, I beg to move that this Bill be now read a second time. The Bill does not, as the media would sometimes try to persuade your Lordships, herald a radical moral or social revolution. It attempts only to bring to its logical conclusion a development in our marriage laws which has been going on throughout the greater part of this century and, in a sense, for a good many centuries before, but in slow motion. In so doing, I hope that it will bring comfort and happiness to a number of distressed individuals, at practically no financial cost to the community and without any damage but rather with benefit to the institutions of marriage and the family.
The content of the Bill is contained entirely in the single sentence which gives it its title. It is a Bill which would enable any person to marry the former spouse of any of his relatives, or any relative of his former spouse. While your Lordships are working that out, may I say that this
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enables persons to marry anybody who is not a blood relation. The Bill leaves all blood relationships exactly as they are, so far as marriage is concerned. There will be no alteration to that part of the law. However, it would remove the restrictions which are now imposed on marriage between affinities, by which I mean persons who are connected by marriage and not by blood.
As your Lordships are well aware, this list of what are known as the prohibited degrees goes back to the Old Testament and to the Book of Leviticus, where they are very eloquently set out. But they remained matters of ecclesiastical law only in this country until the time of Henry VIII, who after all had a good deal of practical experience of marriage. They were then incorporated into our Statute Law in an Act of 1540.
If I may now jump four centuries we come to the first important change that affects us and that was the Act of 1907 which allowed a man to marry his deceased wife's sister but gave no similar privilege to a woman to marry her deceased husband's brother. For that we had to wait another 14 years and when that change came it was not expressed in the same terms as the privilege conferred upon a man, because at that time men always married women but women never married men. The Act which therefore should have been the deceased husband's brother Act was the deceased brother's widow Act which, if we turn it round, comes to exactly the same thing if the marrying is done by the man and not by the woman.
Next, an Act of 1931 allowed marriage with the spouse of a deceased niece or nephew, aunt or uncle, and in 1949 a consolidating Act set out the whole marriage law with the prohibited degrees of both blood relations and affinities. As soon as that tidying up had been done it was immediately untidied because the Government proceeded to appoint the Morton Royal Commission on Marriage and Divorce, which considered the whole question of marriage, including such matters as property, nullity, the insanity of one partner and so forth. That Commission received evidence from the British Medical Association, pointing out that there could be no possible biological objection to marriage between any affini-

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ties since they were not blood related. Similarly, they received evidence from the Haldane Society through Professor Glan-ville Williams, advocating the abolition of all prohibitions on marriage between affinities, and similar evidence was given by the Fabian Society. It is fair to say that none of these witnesses elaborated their evidence; neither did the Commission examine them at length. In that context the Commission was much more concerned with the question of whether those privileges of marrying the relatives of former spouses should be extended to cases where the spouses had been divorced as well as to those cases where the marriage was ended by death. Eventually, after long and eloquent argument the Commission decided to recommend that relaxation and they reported, with three dissentients, in favour of it and it was subsequently embodied in the Marriage (Enabling) Act 1960, which permits marriage with the relative of any divorced spouse as well as of any deceased spouse, with certain limitations. At that time it was not all relatives.
Finally, in 1970 the marriage laws in general were reconsidered by the Law Commission. Contrary to their usual custom they treated this aspect of the subject somewhat cursorily. First they found—and I quote—that the "historical objection" to the marriage of affinities was
"based on the ground that husband and wife were one, so that relationship by marriage was equivalent to relationship by blood. This reasoning"—
they added—
"is unlikely to appeal today, so one must ask whether there exist social or moral reasons against such unions".
However, having posed this question the Commission made no attempt whatever to answer it. They circulated a working paper to certain professionally interested people and this paper stated that,
"There are people who feel that unions between step-relations are immoral and should not be permitted".
But they added, without further comment, that a few witnesses before the Morton Commission had recommended the abolition of all prohibitions on the marriage of relations by affinity. However, no attempt was made, either by the Commission or in the working paper, to evaluate either the social or moral im-
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plications of these conflicting views or their acceptability to the general public. In their report the Commission recommended—and again I quote—that since they had
"no evidence that public opinion has changed since 1955 and now desires a revision of the existing prohibited degrees"
the law should stay as it was.
To assess public opinion objectively is a highly technical and expensive matter and neither the Law Commission nor a private person like myself is in a position to do it, but I would produce such evidence as I have of the change since the Morton Commission's recommendation. Of the scores of people to whom I have put the simple question: "Do you think a man should be allowed to marry his stepdaughter?"—people of all grades in life and of all kinds of political or religious persuasions—the vast majority, in fact all but about two or three, have replied with astonishment that such marriages were not already legal, adding such comments as: "Why ever not? They are not blood related". Nor I think will it be disputed that in the two decades since the Morton Commission reported there has been a marked change in public opinion generally and public attitudes towards matters of sex and marriage. Rightly or wrongly, divorce has become much more frequent and more socially acceptable. An increasing number of couples now live together without marriage, either because they wish to evade or postpone the obligations of matrimony or sometimes because one (or even both of them) is still married to someone else.
Against that background, my Lords, does it not seem ironic that the proposal to allow the marriage of couples who earnestly wish to be married, are free of all marital ties and are not related by blood, should be condemned as a threat to the stability of family life? Surely there is a much greater threat in the temptation to such couples to live together as man and wife without the legal or religious sanction of marriage, and against that course neither the civil nor the criminal law will raise any objection. But of course any children of such a union will be permanently illegitimate and cannot be legitimated by the subsequent marriage of their parents, as can other illegitimate children, although they

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might conceivably be the subject of parental adoption.
Moreover, in such a case, in the event of the man's death the woman will get no widow's pension, either from the State or from his previous occupation and there may be trouble, in the case of those who have houses, in the matter of capital transfer tax. It was one such case which first attracted my attention to the hardships caused by the present law. A man's wife had died, leaving him with two young children of their marriage and a grown-up step-daughter of a previous marriage of hers. After this bereavement it appeared in course of time that the best and happiest solution for all concerned would be for the step-daughter to take over the running of the household and the care of the younger children, which accordingly she did. Not surprisingly, in course of time a growing attachment arose between the father and the step-daughter, culminating now in 20 years of a shared life together, but the goal of marriage is still unattainable.
Since then a number of other cases have been brought to my attention. I have cases of couples who have travelled round the world in search of a country where they could be married, only to find when they get home that the marriage is not valid here. I know of the case of one couple who got so far as advertising their marriage in church (because the clergy do not always know the details of the law) and inviting the guests, only to discover at the last moment that the marriage would not be valid. Not surprisingly, this couple decided to behave as though the marriage had been solemnised and to live together and not to deny themselves the pleasures and responsibility of parenthood. But, of course, the children they have produced are, as I said, illegitimate. I have the case of a man whose wife deserted him eight years ago and dumped a step-child on him. Although the difference in age is quite wide, he is very anxious to marry the step-daughter. He is embarrassed by the fact that, when they travel abroad, he cannot have her name on his passport and she cannot have her passport in his name.
I should like particularly to mention one case of deeply religious people, well
1112
on in years, both of whom have been married and widowed, who are devoted to each other and would like to spend their declining years together. Because of their religious convictions they think it would be wrong even to live under the same roof. They were in fact, before they heard of this Bill coming before your Lordships, proposing to revive the long since discarded procedure of petitioning Parliament to accept a personal Bill to legalise their case alone. They are therefore pinning their hopes upon the success of this Bill.
My Lords, the cases I have quoted mainly relate to step-parent relationships because those are, I think, in practice the ones that are likely to cause the most interest and practical concern. Not many of us presumably are consumed with a passion to marry our fathers or mothers-in-law or the former spouses of our grandparents or grandchildren, but I have included these also, partly for the sake of logical completeness and partly because the Statute Book would look absurd if the only people who were forbidden to marry were people we are not going to be anxious to marry.
I have also, with some hesitation, followed the more controversial precedent set by the 1960 Act by proposing that anyone whose marriage has been ended not by death but by divorce should be permitted to marry any relative of his or her former spouse during the lifetime of that spouse. The 1960 Act did allow this extension in all cases of marriage with such affinities as were then legal; namely, the divorced spouse's sister or brother, aunt or uncle, nephew or niece. All I have done is to extend this relaxation to the remaining affinities listed in Clause 1(2)(a) and (b) of the Bill.
There remains, however, the fear in some hearts that the right to marry a divorced wife's daughter may lead a man to get rid of his wife in order to substitute a younger and possibly more attractive edition of her mother, or even because she stands to inherit money from her own father. While I have lived long enough to know that there are people who will do anything for sex or money, to this hypothesis I would reply, first, that a family in which the husband casts lustful eyes upon his step-daughter while he is still married to her mother is not exactly

1113
a stable family anyhow. Secondly, I would call in aid the report of the Morton Commission, which pointed out that under the existing law the cases of hardship are fact and the cases of what people might do in order to obtain certain sexual or financial advantages are hypothetical. I would also mention that the Morton Commission did have brought to their notice that if a man was forbidden to marry his step-daughter he might be more rather than less disposed to attempt to seduce her, on the ground that she could not afterwards turn round and say: "Now you can marry me". So we may be making it less probable that illicit unions of this kind will occur. In the end, I came round to the view that it would be illogical to exempt one particular class of relationship from the conditions which appertain to all the other affinities already covered where a divorced spouse's relatives may be married. It does seem absurd that a man can marry, as he can now, his divorced wife's niece or sister, but if he wishes to marry her daughter he has got to wait until mum dies.
The British people have a reputation for always taking two steps to reach an objective where one would do, and the history of prohibited degrees fully confirms this reputation. It took 53 years for the right of a widower to marry his late wife's sister to be extended to cases where the marriage had been ended not by death but by divorce. But things move faster now, and I have no doubt that if the law were to be relaxed now only so far as to permit marriage with a deceased spouse's son or daughter or parent the same right would before long be conferred upon a person whose marriage had been dissolved. If, however, any noble Lord takes a different view on this point, it is, of course, open to him or her to move an Amendment at a later stage imposing particular restrictions in the case of a step-daughter. But, in the meantime, I greatly hope that the many Members of your Lordships' House who have expressed agreement with this Bill in principle will, for the sake of compassion for the cases I have quoted, accept the principle so far as to support the Second Reading of this Bill, which I now move.
Moved, That the BH1 be now read 2a.—(Baroness Wootton of Abinger.)
3.27 p.m.
Viscount LONG: My Lords, may I first say that the noble Baroness's Bill is one that will definitely and utterly amaze one in trying to get the equation right in one way or another. If I may say so to her, I much admire her bravery in your Lordships' House; I much admire the way she and others with her have tried to bring Bills before your Lordships' House in order that we might have a fresh look at what is going on within certain parts of our lives. In saying this, I hope she will not feel that I am being very Right Wing or being very dictatorial in any way, because I feel that this is the most delicate and sensitive subject that we are approaching at this moment. The Bill itself, however good it looks on paper, must raise some very ugly heads underneath it. I think the noble Baroness has been trying to describe those ugly heads during her speech a moment ago.
Like others of your Lordships, we will be trying to delve into this Bill, but I only hope that we will deliberate very carefully on what the Bill is about. For instance, I believe it is, if you really start to work it out, the most technical mathematical equation that exists, and whichever way you are likely to go harm could possibly be done. It can turn many corners; it can even by the equation go on like the universe, for ever and ever Amen. Therefore, I hope that we will, all of us independently, deliberate on this subject and try to get the right answer to what the noble Baroness is saying. To me it becomes almost a nightmare. To me it could be an embarrassment. It could also, to a family man, become a mockery. It can go further; it can ridicule the family. My remarks today are concerned not so much with statistics, as with the family which has always had a moral code and standard of living. If we are not very careful as regards this Bill, we shall create another difficulty within the family.
About a year ago, if not more, the most reverend Primate the Archbishop of Canterbury instigated in your Lordships' House a very fine debate on the family. Many of your Lordships spoke about the family, its problems and difficulties. The debate was inspiring and continued for many hours, and many experts took part. Now we are considering what will happen to the family

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if we accept a Bill that deals with relations other than blood relations.
Too much has been eating at the heart of the family. Too many strains and problems place upon it in different ways the difficulties of life. I am the father of a family of three and I have found it very difficult, as one of the older generation, to deal with the permissive society in which we live. I find it increasingly difficult to understand a matter which the noble Baroness, Lady Wootton of Abinger, mentioned very briefly—namely, the divorce laws. Divorce is now too easy. Too many hearts are broken not in the adult's mind but in the children's minds. There are new ideas as regards teaching. My children are so advanced that I find it very difficult at times to keep up with them. I admire their education and the educational standards of today, but that is yet another aspect of the difficulties of the family.
The Church has decided to introduce new versions of the Bible. I find that difficult to understand because I do not understand the modern version of English. I like the mystery of the Old Testament and the old writings. The Church is about to set course on a new Communion service and so on. As a father, I find it extremely difficult to keep up with all these matters. There is no consolidation. We just go onwards eroding the love of the family. I am sure that I am right in saying that this Bill is concerned with nothing other than the family. It is difficult to impose discipline on my children because the schooling does not allow the strict discipline that I was used to. We are finding it extremely difficult within the family. Now, the noble Baroness, Lady Wootton, whom I much respect and understand, has put before your Lordships a Bill to alter the family balance once again. I hope that the noble Baroness does not feel that I am being particularly ugly about the situation, but I cannot understand it. What has worked in the past for the safety of good conduct and standards of life must surely be fairly safe to continue today.
Turning to the provisions of the Bill, for a man who has lost his wife to be allowed to marry his wife's mother's mother seems to me most extraordinary. In other words, he will be allowed to
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marry his grandmother. All right, there is no harm in that as it stands, but for a child to be told that his aunt is now his mother—
Baroness WOOTTON of ABINGER: My Lords, I am not sure whether the noble Viscount has fully understood that under the Bill you cannot marry your aunt because there is a blood relationship. You can marry only your aunt's previous spouse.
Viscount LONG: My Lords, I am most grateful to the noble Baroness for correcting me. Indeed, I stand to be corrected. This is the most difficult equation with which I have ever had to deal from this Box and if I am wrong in any way I ask your Lordships to correct me. I admit that I find the matter intensely difficult.
Under the Bill, a husband will be able to marry his ex-wife's sister's daughter's daughter. Am I right about that? Can noble Lords work out that equation? There is even a greater danger. I am speaking slowly because I feel as if I am under the influence of alcohol when it comes to this equation. Will it not be the case that a husband will be able, if I have understood the Bill aright, to marry his ex-wife's sister and then live with his ex-wife's sister's daughter in order to get divorced? I see that your Lordships are all studying me very carefully, but I apologise for saying that I find the situation very difficult. I believe that this equation is like the universe—it can go on and on.
Over the generations we have lived with very difficult situations. I noticed in a parish magazine an article headed "Scandal in the Chancel or the Heathfield Mural Monument" and perhaps I may read it to your Lordships. It says:
"Those of you who sit in the Heathfield choirstalls contemplating the calm countenance of Margaret Hadley opposite, little realise the traumatic experience she suffered in her life. Engaged to Thomas Luttrell of Dunster Castle when a baby, they were married in due course, thus fusing two valuable estates.
Then it was discovered that Thomas's mother was Margaret's godmother and, in the eyes of the then Roman Catholic church, this was incest for they were ' brother and sister'. (Worse still, they were very distant cousins). So, they were excommunicated and forcibly divorced!
Eventually they were allowed to re-marry and this took place at East Quantoxhead Church in 1560. They then produced six children. Thomas, however, died in 1571: she married a John

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Strode in 1572 and upon his death she married her agent, Richard Hill, in 1587. She herself died at Luxborough in 1607".
I have the strongest feeling that if we are not very careful as regards the Bill, we shall go backwards and not forwards and involve ourselves with the reverse situation. We must be extremely careful.
As I have said, I believe that the most sensitive area is the family; the family will suffer most if the Bill is passed as it stands. However, another sensitive area concerns the priest in charge of his parish. With his training and experience he will encounter total embarrassment and difficulty in trying to cope with a family that is going wrong within marriage. Yet, if the Bill goes through he will have no chance, other than by directing the matter to his bishop—and his bishop will find that the law is not even in his hands—to save the family from an embarrassing situation. I do not think that the Bill is being in any way fair at the grass roots, to those who go about their parishes trying to set standards, particularly moral standards, among their flocks. It certainly will not be easy for such people if we involve them in roundabout questions of who may marry whom when people are not blood related.
I find this Bill extremely complicated and I look forward to hearing noble Lords who wish to speak on it. If I have said anything, either one way or the other, and it is wrong, I must of course stand to be corrected. I should like to ask the noble Baroness whether the statistics really show that a great deal of hardship is affecting families in this area. I should like to know much more than she has already told us about the advice she received. There must be further figures. If the statistics show that only a minority group is affected, then I do not think that her Bill is being at all fair to the family. I repeat, I find myself in a very difficult situation; to me the whole Bill is an equation. Would it not be advisable—and I beg the noble Baroness to consider my feelings, not in theory but in practice—to withdraw the Bill in order that an inquiry could be set up to study this particular problem and take evidence from various bodies?
At this stage I do not believe that it is at all fair to the family to have to cope with yet another piece of legislation, in addition to all the other legislation, taxes,
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et cetera, which I have already mentioned. It is not fair that the family should have this Bill thrown at it. I would certainly be prepared to serve on an inquiry if one were set up. If hardship within the family is demonstrated, I should be quite willing—and I know that there would be others outside the Church who also would be willing—to look at this situation. As it stands, the Bill looks all right, but underneath there is only one part of the community that will suffer, and that is the family—and within the family it will once again be the children.

EDUCATION: DISRUPTION OF EXAMINATIONS
3.44 p.m.
Baroness DAVID: My Lords, with the leave of the House, I shall now repeat a Statement being made in another place in answer to a Private Notice Question on the disruption of children's education as a result of industrial action. The Statement is as follows:
"About 1,200 schools are closed, that is 4·6 per cent. of over 26,000 schools in England. Two-thirds are in the areas of seven local education authorities in Greater London and the North-East. My aim is to get normal education restored for all children as soon as possible, but those taking public examinations this year deserve priority. At the outset of the present dispute, following representations from me, the public sector unions agreed together to give guidance to their members under which they would give 48 hours' notice of any industrial action, use their good offices to call off unauthorised local action of which such notice had not been given, and refrain from any action which would impede the conduct of public examinations. I asked them to extend similar protection to all teaching of examination classes, but they were unwilling to do so. Nevertheless, most of the authorities badly affected are managing to provide some teaching for examination classes, often in schools or on restricted time-tables, in makeshift accommodation.
"My Department is in regular touch with all the local education authorities affected, who have been asked to supply

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details of any breaches of the unions' guidance. Any reports of breaches are taken up immediately, locally or if necessary nationally, with the trade unions concerned.
"Yesterday, I held a meeting with the chairmen and the chief education officers of the 12 authorities which had been hardest hit, or threatened. I asked them to make every effort to keep schools open and where this proved impossible to take immediate steps to mitigate the consequences of the closure of schools on children's education, especially that of young people in their examination years. They told me at first hand about the situation in their areas, and the steps they were taking to deal with it. I promised that if necessary I would call them together again to discuss further action".
My Lords, that completes the Statement.
Lord BELSTEAD: My Lords, I am grateful to the noble Baroness, Lady David, for the very clear way in which she has answered my Question, but I am afraid that I cannot thank her for the content of what she said because it paints a very black picture indeed. Is the noble Baroness aware that the Answer which she has had to give to your Lordships today contains absolutely nothing in answer to the specific Question which I have asked—namely, what are the Government able to do in order to protect the interests of examination pupils? If I may remind the noble Baroness, in case she thinks that I am being unfair, embedded in her Answer is this sentence: The Secretary of State asked the public service unions
"to extend similar protection"—
that means refraining from action—
"to all teaching of examination classes, but they were unwilling to do so".
Arising from that, I should like to ask the noble Baroness two questions, one specific and one general. Among the many local education authorities, totalling up to 1,200 schools which are closed in England, as recorded in the Answer, there is the London Borough of Haringey, which, in a public statement, has taken it upon itself to say that because it is in sympathy with the National Union of
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Public Employees and the other public service unions, it will close its schools. Those schools have been closed since 22nd January. What is the right honourable friend of the noble Baroness doing with regard to the London Borough of Haringey, either specifically to warn that borough of its dereliction, or possible dereliction, of its statutory duty to provide sufficient education? Alternatively, what is the Secretary of State possibly planning that she may have to do under her duties under the Education Act 1944?
My general question is this: If strike action continues or, as the National Union of Public Employees threatened at the weekend, if strike action increases, what do the Government intend to do to protect examination candidates?—who, after all, are entirely innocent in this matter and whose exam prospects are daily becoming bleaker.
Lord BYERS: My Lords, I should like to follow the noble Lord, Lord Belstead, and I am tempted to ask what sort of people are they in the public service unions who will prevent children being taught for examinations, the results of which may well affect the whole of their lives thereafter. I should also like to support what has been said about the statutory duty of the Secretary of State under the Education Act 1944. She has a statutory duty to perform, to provide comprehensive education in all areas where there is a demand, and so have the local education authorities. Will the noble Baroness represent to her right honourable friend the Secretary of State that this is a matter where the law should be brought into force and where a mandatory injunction should be sought in the courts against those who are preventing teaching for examinations?
Baroness DAVID: My Lords, after having taken advice, my right honourable friend is satisfied that at present there is no case for the use of her default powers under Section 99 or for directions on gounds of unreasonable action under Section 68 of the Education Act against any local education authority. Noble Lords will be aware that since the Tame-side judgment it is much more difficult for a Secretary of State to make a case for unreasonable action. My right honourable friend is very aware of the crisis

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circumstance for certain children, and I shall certainly bring to her attention what has been said in this House. She will no doubt be meeting again very shortly with the authorities where the most difficulties have been experienced. I am quite certain that she will ensure that these children suffer as little as possible.
Lord BYERS: My Lords, arising out of that answer, may I ask the noble Baroness how much dereliction is required before the default powers are triggered? How much longer have we to wait?
Baroness DAVID: My Lords, I think that my right honourable friend can only go by the best legal advice she has been given at the moment. I think from the point of view of the teachers' unions there is being a change of heart here. We have had the NAHT and the NUT rather reversing their earlier position of not going into the schools. For the most part they are now doing this and teaching, if not doing the duties of the caretakers, and so on. I am quite sure that my right honourable friend is as distressed as any noble Lord here about what is going on and will not let the situation run on indefinitely.
3.52 p.m.
Lord HAILSHAM of SAINT MARY-LEBONE: My Lords, as one who has held the office of Secretary of State and as one who has some experience of the law, may I ask the noble Baroness whether she is aware that the Tameside judgment has nothing whatever to do with the default powers, but had to do with something absolutely different? Can she not inquire of the local authorities whether they cannot get an injunction to stop people interfering with the performance of their statutory duties? Do not the great majority of the country know that we have been in a state of emergency ever since the beginning of the road hauliers' strike and have had absolutely no leadership from the Government at all?
Baroness DAVID: My Lords, I shall certainly bring to the attention of the Secretary of State what the noble and learned Lord opposite has said, but she has taken legal advice and is abiding by the advice she has had for the moment.
Baroness SEEAR: My Lords, may I ask the noble Baroness a question, to which she may quite reasonably not have an answer to give straight away but which perhaps she could answer at a later date? She said in the Statement that breaches of the agreement had been taken up and reported. That means that there have been breaches. May we have information as to what has happened after they have been taken up?
Baroness DAVID: My Lords, when breaches have been reported it is hoped that, first of all, action will be taken locally, and only nationally in the last resort. These are being reported, daily I think, and if the noble Baroness would like it I have a list of the authorities where breaches have taken place. I could give her further information in a letter if she would like it, or personally later, about the actual breaches that have happened.
Lord ROBBINS: My Lords, might I ask the noble Baroness to give me personal advice? I am the fortunate grandfather of a grand-daughter who is due to take her O-levels this summer, and she is shut out of her school in Haringey. I would ask the noble Baroness what should be my attitude to the Haringey authorities? Should it be one of hatred and contempt, which I now feel? Further, what should be my attitude to the Secretary of State for her complacence in this iniquitous state of affairs?
Baroness DAVID: My Lords, I can assure you that the Secretary of State, with whom I was talking earlier this afternoon, is far from complacent about the situation as it is now. I think I must leave it to the noble Lord to make up his own mind about what he says to his family.
Lord TAYLOR of BLACKBURN: My Lords, may I say—
Several noble Lords: Ask!
Lord TAYLOR of BLACKBURN: I apologise. May I ask this question? What are the associations of the local education authorities doing to try to persuade teachers to go back into schools, and so on? We on this side—I am sure the majority of Members on all sides of

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the House—feel exactly the same way about this. But are we getting any leadership? Are we getting any guidance from the associations on this? Is the Secretary of State getting any guidance from the associations on this? The answer is, No. No, they are not. It is all very well my—
Several noble Lords: Speech!
Baroness DAVID: My Lords, apparently my noble friend has answered his own question.
Baroness WARD of NORTH TYNE-SIDE: My Lords, coming, as I do, from the North-East, which is badly affected, may I ask whether the noble Baroness, or the Secretary of State, has a list of the children who are prevented from taking their examinations at the proper time? The noble Baroness has made a general statement, but I want to know how many children are really affected, because it affects them both now and in the future? I should like to have a list of the children who are in this position. She has not mentioned, so far as I can make out, the numbers of children who are concerned.
Baroness DAVID: My Lords, I have a list of actions that have been taken in some of the authorities in the North-East. For instance, in North Tyneside the special schools are open; the fifth and sixth forms can enter schools, and other years have access for four hours a week. At Newcastle, Sunderland and Durham the fifth and sixth forms are being educated. I have further details that I could give to the noble Baroness if she wishes them later.
Baroness WARD of NORTH TYNESIDE: My Lords, while thanking the noble Baroness for her answer, I should like the information put in Hansard so that everybody can see. She has not given me any names. I want to know the names of the children.
Baroness DAVID: My Lords, I think that the names of the children would probably be rather too much. If the noble Baroness put down a Question for Written Answer, I have a lot of information which she would like to have.
Lord NUGENT of GUILDFORD: My Lords, would the noble Baroness tell us
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what consideration the Secretary of State has given to mobilising voluntary help to assist in this serious crisis for our school-children? If she has given that consideration, what conclusions has she reached?
Baroness DAVID: My Lords, I do not know what the Secretary of State has done herself about voluntary help, but what I do know is that certain LEAs have been using some voluntary help. I think it is up to the LEAs to organise that themselves, and it seems to me that it is not a job that the Secretary of State could manage. This is something which obviously is within the province of the local education authorities.
Lord NUGENT of GUILDFORD: My Lords, does the noble Baroness mean that the Secretary of State has taken no view about using voluntary help in this matter?
Baroness DAVID: My Lords, I am sure she is not against using volunteers.
Lord ROCHESTER: My Lords, may I revert to a question which I asked in a more general context last week, but to which I got no answer from the Government as such? Where people employed, for example, as caretakers in schools decide to remain at work, will they be afforded full protection by the Government as to their continued employment in cases where a closed shop is in operation?
Baroness DAVID: My Lords, I cannot answer for the Government on that, and I think I can only do what my noble friend did before; namely, to say that personally I hope no action would be taken against them.
Lord BELSTEAD: My Lords, the noble Baroness is not giving adequate replies to questions being asked in the House today, and while we realise that she is not personally speaking for the Department, she is speaking for the Government. Did the noble Baroness read in yesterday's Guardian the statement by the assistant general secretary of the Association of Assistant Masters and Mistresses that the members of that association were ready to do their normal duties if called upon to do so? In the light of that lead, has the time not come

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when the Secretary of State could at least gird herself up to send round a circular to local education authorities saying that schools must be kept open in order that the education of children who are about to face their examinations shall not suffer?
Baroness DAVID: My Lords, I think my noble friend the Secretary of State is doing as much as she can at the moment. She is very keen to get more schools open, but it is very difficult to take total action centrally when it is the LEAs' responsibility locally; it is the LEAs' first responsibility.
Lord SHINWELL: My Lords, everybody in your Lordships' House, I am sure, without exception, wants to put an end to this unhappy and miserable affair. However, despite all that has been said and the questions that have been asked, and even the suggestion of the noble and learned Lord, Lord Hailsham of Saint Marylebone, about an injunction—I do not believe that would have any effect in the long run—if the teachers intend to stay out and the caretakers intend to carry on with this strike we have only one remedy. These people are determined to get their own way. They want higher wages and better conditions. In the circumstances, even if it means that we must pay higher taxes and increased rates, it would be far better to bring this miserable affair to an end and accept the consequences.
Baroness DAVID: My Lords, I thank my noble friend for what he said, but I do not think there was a question to answer.
The Marquess of SALISBURY: My Lords, is it not a fact that the head teacher is responsible for the opening and closing of the school and that the authority is only delegated to the caretaker? If that is so, could not the Minister give directions that he should carry out his duties?
Baroness DAVID: My Lords, I think it is the local authority which is responsible for the opening of the schools and it is delegated to the caretakers.
Several noble Lords: No!
Baroness DAVID: My Lords, the NUT, the NAHT and other unions have said they are willing to open the schools in nearly every case, although they will not perform jobs like cleaning which are done by caretakers.
Lord LEATHERLAND: My Lords, may I ask my noble friend what I hope is a constructive question? Does she agree there will be some boys and girls who will require, say, 60 points to pass an examination but who, because of the lack of tuition in recent weeks, may manage to muster only 58 or 59 marks? Could the markers be given advice or instructions to moderate their judgment in those cases so the children are not harmfully done by?
Baroness DAVID: My Lords, having at one time worked as a marker and an awarder for one of the boards, I am sure that all those who will be marking and awarding grades this summer will know exactly what the situation has been, and I am sure that, being sensible people, they will act accordingly.
Baroness LLEWELYN-DAVIES of HASTOE: My Lords, I would remind the House that we have 24 speakers to come today and another Statement which has been made in the other House. I fully understand the feeling which is aroused in your Lordships' House, but I hope I have the feeling of noble Lords when I say that we should pass to the next Statement.

RHODESIA: AIRLINER CRASH
4.5 p.m.
Lord GORONWY-ROBERTS: My Lords, with the permission of the House, I will repeat a Statement being made in another place in answer to a Private Notice Question on the shooting down of a Viscount airliner in Rhodesia yesterday evening. The Statement is as follows:
"Fifty nine people were killed including, according to Press reports, at least two United Kingdom citizens, when a Rhodesian civilian airliner crashed near Kariba yesterday. According to the news agencies, the Patriotic Front claim to have been responsible. I am sure the whole House will deplore

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this senseless attack, involving further tragic loss of innocent lives in Rhodesia. The escalation of the war reinforces our determination to continue our efforts to bring an end to the fighting by negotiations within a framework likely to prove acceptable to the people of Rhodesia as a whole. Until that happens we fear that the drift into uncontrolled violence and chaos will continue."
Baroness ELLES: My Lords, while thanking the Minister for having read that Statement, may I tell him—I am sure he will not be surprised to learn this—that we are very dissatisfied with its tone? We on this side of the House totally condemn, as I am sure all noble Lords will, this barbarous action of shooting down a civilian aircraft containing innocent civilians who, according to the Press statement, were both black and white. This action of aggression surely confirms more strongly than ever that the liberation movements are not concerned with a struggle for legitimate rights of rule by the majority over a minority but with a struggle for personal power.
What regrettably seems to be tacitly, if not openly, encouraged by the Foreign Secretary and Her Majesty's Government is the hope that eventually the situation in Rhodesia will deteriorate to such a state that peace will be impossible. That appears to be the impression being given at the moment, and I very much hope that in this case we are misinterpreting their ultimate intentions for the fate of Rhodesia and all Rhodesians, both black and white.
Therefore, we on this side of the House would ask Her Majesty's Government seriously to consider, first, facilitating the holding of free and fair elections in April, which is the intention as stated of the present members of the internal settlement; and, secondly, that the Government should undertake to seek the support of the international community to recognise the legitimacy and outcome of the elections as an example of the democratic process which, as we know in this country, is not always implemented by other member States of the United Nations.
Lord GLADWYN: My Lords, we join S with the noble Baroness, Lady Elles, in
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condemning this outrage; naturally we do. What Mr, Joshua Nkomo thinks he can gain by this kind of atrocity I really do not know. One would have thought that surely there must be some kind of code of conduct even among guerrillas. It cannot do his own cause any good; it might even increase the present unpopularity of his rival Mr. Mugabe; but that is another matter.
With the general content of the Statement, however, we on these Benches would not quarrel so much as did Lady Elles. It says:
"The escalation of the war reinforces our determination to continue our efforts to bring an end to the fighting by negotiations within a framework likely to prove acceptable to the people of Rhodesia as a whole".
Surely there is no objection to that as such. The question is whether the Government have any present intention of recognising the internal settlement as a result of the coming elections. That, to some extent, I suppose depends on the evident support, if such emerges, from those elections, and that has to be determined. Whether it would be desirable to send out any kind of observers to those elections, to determine whether it has that over- whelming support, is another matter; but I should have thought the Government might seriously consider doing that.
4.10 p.m.
Lord GORONWY-ROBERTS: My Lords, I am grateful to the noble Baroness, Lady Elles, and the noble Lord, Lord Gladwyn, for their comments. Lady Elles used the word "condemn" whereas the Statement used the word "deplore". I would certainly go along with the noble Baroness in inserting that word, which was a word used by Lord Gladwyn. We all, irrespective of Party—here or in Rhodesia, I would hope—deeply condemn this senseless outrage. It is not the first of its kind.
However, it is not easy to charter a proper course ahead. The noble Baroness suggested—I hope that I misunderstood her—that somehow the present Prime Minister and my right honourable friend the Secretary of State were tacitly encouraging the situation to deteriorate. I thought that they were working might and main to rescue the atrocious situation which is developing and change it into a situation which would be much more

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favourable in terms of achieving a reasonable settlement.
The noble Baroness made two points about free and fair elections. Quite frankly, we do not see that the April elections are based on what could reasonably be accepted as a free and fair basis. I will not retread the reasons for this, but, equally, in the spirit of my right honourable friend's comments on the report of Mr. Hughes, we look for the earliest possible basis on which we could fruitfully and meaningfully convene a conference of all concerned.
It would I believe be most misleading—and here I join with the noble Lord, Lord Gladwyn, who made a temperate and helpful comment—to assume that resistance to an all-Party meeting on the basis, broadly speaking, of the Anglo-American proposals comes from one side more than from the other. They all have objections to this—the Salisbury group, as well as the Patriotic Front. The task of British statesmanship, from whichever side of the House it may come, is to try to get the people to come together on the basis of the proposals which still stand as the best possible basis for agreement.
With regard to elections, I join once more with the noble Lord. We are speaking of a country 90 per cent. of which is subject to martial law, and in which there is Press and radio censorship. Everyone knows this, and we must not spend too much time considering whether we could do this or that in the light of the results of those elections, if elections they are. What we need to do—and if possible to anticipate April—is to get agreement for a ceasefire, followed immediately by really free and fair elections under UN auspices.
Lord SHINWELL: My Lords, my noble friend is in some difficulty, but I should like to ask what I regard as a simple, but direct question. This involves some repetition because the matter was raised quite recently. In view of Nkomo's declaration in accepting responsibility for this terrible action, and moreover, in view of the fact that the weapon used against the Viscount aircraft was obviously provided by the Soviet Union—a SAM—how can my noble friend justify the Government's continued belief that it is possible to promote an embracing conference,
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including the Patriotic Front, of which Nkomo and Mugabe are the leaders? How is it possible to do that? Has the time not come when we must grasp the nettle, and say that the Rhodesians must have the election shortly, and that we, the British Government, must set aside all questions of legality, UDI, and all the rest of it, which I know involve difficulties, and all of which is regrettable, and must seek to help the new Rhodesians, black and white, to stabilise their country? We ought to recognise them in such a situation.
Lord GORONWY-ROBERTS: My Lords, of course what my noble friend has just said is entitled to very careful consideration, and undoubtedly it will receive precisely that. At the moment I shall address myself only to the question he put to me: how could we, I presume in any conceivable circumstances, justify inviting certain people, who are deemed to be guilty of certain acts, to a conference table? This is a question which is put to us from time to time by precisely the opposite side about the others involved. Everybody would like to select their own conferees, and looking at history one sees that this country has rather a fruitful record of convening effective conferences precisely from the ranks of those who, during hostilities, were guilty of the most appalling acts.
Viscount BOYD of MERTON: My Lords, while agreeing with all that the noble Lord, Lord Shinwell, has just said, I should like to ask the Minister, has not the time now arrived when those responsible for abominable crimes of this kind should no longer have a veto on round table talks?
Lord GORONWY-ROBERTS: My Lords, I entirely agree that no one should have a veto on round table talks; but everybody is trying to exercise a veto on round table talks, just as they are trying to select their own fellow conferees. It is said that the Salisbury Group, by refusing to accept the possibility of UN-supervised elections, and insisting upon their own, are exercising a veto; and so one goes on. I think we must agree that no one has a veto, proceed on that assumption, and watch for the earliest possible suitable circumstances in which the Prime Minister of this country can, as he said

1131
he would, take the lead in calling such a conference.
The Earl of KIMBERLEY: My Lords, would not the Minister agree that it is probably obvious that Mr. Nkomo and Mr. Mugabe, by refusing to come to the conference table until such time as the elections are held—whether or not they be free elections—are making quite certain that the elections will not be free?
Lord GORONWY-ROBERTS: My Lords, that is a speculation as to their calculations and actions. All I can say is that in April last year they came a very long way forward to meet the requirements of the Anglo-American proposals. Unfortunately, it was during last summer and well into the autumn that the Salisbury group resisted those concessions. Now the blame is not entirely on one side or the other, and I am not going to apportion blame. I agree that no one should have a veto. We must concentrate on wresting from the circumstances the earliest possible opportunity of a bold move to convene a conference, and I believe that the Prime Minister and my right honourable friend are determined to do precisely that.
Lord HOME of the HIRSEL: My Lords, from a reply given by the noble Lord last week, I got the impression that one of the main obstacles to the Government's encouragement of the provisional Government's plans for the future of Rhodesia was the arrangements for protecting the white minority. First, I wish to ask the noble Lord whether that is so. Is that the obstacle that the noble Lord sees in his right honourable friend? Secondly, does he not remember that the Sixth Principle—the protection of the white minority—was that which was added to the Five Principles by Sir Harold Wilson when he was Prime Minister?
Lord GORONWY-ROBERTS: My Lords, I should be surprised and very sorry indeed if I gave that impression. Clearly, any fair and durable solution of the Rhodesian question would have to include justice for all the minorities in that country—and they are not all simply white—and I would certainly include justice for the white element in that country. I believe that I have stressed this more than once in debates in this House. I most
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certainly hope that nothing I said last week, or at any time, has given the impression to which the noble Lord has referred. I shall be consulting Hansard very carefully in view of what the noble Lord, Lord Home of the Hirsel, has said.
Lord HAILSHAM of SAINT MARY-LEBONE: My Lords, I do not in the least impute any kind of devious motive to the noble Lord or his colleagues, and I wish to pay my continued tribute to the unfailing patience and courtesy with which the noble Lord answers every question put to him, from whatever quarter. Nevertheless, does he realise that some of us at least believe that, by appearing to be impartial between a party which offers the ballot box, however imperfectly it may be used in the circumstances, and a party which uses as a weapon the murder of innocent civilians by knocking down, by sophisticated weapons, a civilian plane, the Government may in the end find that they have betrayed the true interests of civilisation?
Lord GORONWY-ROBERTS: My Lords, I cannot agree with the full question, but I cannot take exception to what the noble and learned Lord said up to the final sentence. I hope that we will not ascribe to this or any other Government either a tacit or a deliberate intention to conduce to a deterioration of the situation. That would be an accusation of enormity which I would hope noble Lords in every part of the House would refute. As my right honourable friend and Mr. Vance decided on 2nd and 3rd February, when they last met on this matter, we intend to press forward with the Anglo-American proposals, which, in their basis and their framework, still present the best opportunity for a fair and durable solution. We are watching the situation extremely closely, precisely with a view to moving as quickly as possible to the convening of a conference.
The Earl of ONSLOW: My Lords, could the noble Lord give us an undertaking that none of the ground-to-air missiles supplied to the Zambian Government by Her Majesty's Government has in any way got into the hands of Mr. Nkomo? That is my first question. Secondly, can he also give an undertaking to bring to the attention of his right

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honourable friend the statement made by Mr. Nkomo the other day, when he said that he would turn the elections into a bloodbath? Surely, if this is the case, this underlines what my noble and learned friend Lord Hailsham has said, that being impartial between somebody who is pro an election and somebody who is pro a bloodbath is not really being impartial.
Lord GORONWY-ROBERTS: My Lords, whatever Mr. Nkomo is reported to have said now or in the past, I think it would be wise to keep in mind that, when the time comes—and I hope it will come soon—people who are now, for one reason or another, unacceptable to one side or another will need to be at the conference table. As to the noble Earl's first point, on the utilisation of Zambian missiles provided by this country, we have, of course, the Zambian Government's undertaking not to use them in any way similar to that which the noble Earl has suggested.
Lord GLADWYN: My Lords, would the Government agree that the interests of the white members of the Kenyan community are quite adequately, or seemingly adequately, protected without any constitutional or statutory representation of the white community in the local Legislature?
Lord GORONWY-ROBERTS: My Lords, on the question of minorities and the white community in particular, I think that, as I cannot recall the precise words I used last week, I should refresh my memory. I have great respect for both noble Lords who have mentioned this, and I hope they will respect my probity in at least finding out exactly what was said.
Lord GORE-BOOTH: My Lords, can the Minister give us one little extra piece of comfort, which is really based on a premise raised by the noble Lord, Lord Shinwell? Can he go so far as to tell us that the Government are in fact making studies, and indeed plans, in case the noble Lord, Lord Shinwell, is right on a point on which I agree with him; namely, that the probability is more that the Patriotic Front will use force than not? If we had some assurance of this, perhaps it would dissipate a little the feeling which the Government give, I am sure quite
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innocently, that they always believe that this negative reply on the part of the Patriotic Front will not be forthcoming. We must provide for its happening, possibly.
Lord GORONWY-ROBERTS: My Lords, I can assure my noble friend that we are in close and constant contact with everybody concerned, and that we do not ascribe to either side a monopoly of vice or of virtue in this matter. It is essential that we maintain an objective attitude if we are going to succeed in our aim of convening a conference.
Lord SOMERS: My Lords, is it not true that in this country those who are in prison for the crime of murder, or even lesser crimes, are not allowed to vote or to take any part in politics; and, if that is so, why should we consider it desirable to give that right to criminals in Rhodesia, who admittedly are not in prison but are every bit as much criminals?
Lord GORONWY-ROBERTS: My Lords, from where I am standing, all kinds of people ascribe criminality to all kinds of people. Where countries get into a situation like this—and, surely, the lessons of history bear this out—everybody is guilty of the most appalling atrocities. If, ahead of a conference, you are going to decide who is going to be allowed to attend, then you will never have a conference; you will have a condition of continuing hostility and destruction. However strongly noble Lords feel about these incidents, and whoever is the author of any given incident, I hope the House will give thought to the fact that we need to look ahead—and we may need to look ahead to, I hope, the fairly immediate future—to the necessity of getting together at a round table everybody involved in this situation.

MARRIAGE (ENABLING) BILL [H.L.]
4.27 p.m.
Second Reading debate resumed.
The Lord Bishop of LONDON: My Lords, we now return to the Marriage (Enabling) Bill. I want first to express my own gratitude, as I am sure I express

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the gratitude of the House, to the noble Baroness for bringing before it a Bill of considerable social importance, and also for the moderation and care with which she has introduced it. For myself, I am grateful to the noble Baroness for having spoken to me about the problem some months ago, and for requiring me therefore to do some research into a matter which I confess I had not had occasion to consider before. My researches have revealed that the question of who a man or woman is free to marry is one of deep and far-reaching significance. All societies impose some regulations, and, though these may not be universally the same, it is nevertheless clear that the question touches very profound emotions which, though it may be difficult to articulate them, are real and strongly held. The social taboos which control the intermarriage of certain categories of people are widespread, and they go deep into the structure of society itself.
In this country, the Table of Kindred and Affinity has provided the basis on which our society exercises its control. It is constructed, for the most part, on the code laid down in the 18th chapter of the Book of Leviticus. It has had a long and controversial history. In his book, Family Law, E. L. Johnson sums up the situation with these words:
"The prohibited degrees of the Church of England were, until 1946, based on Canon 99 of 1603, commonly called Parker's Table, and were accepted by the State until 1907".
Since then, statute law has been amended by the Deceased Brother's Widow's Marriage Act 1921, the Marriage (Enabling) Act 1960 and the Marriage (Prohibited Degrees of Relationship) Act 1931.
The first point which I suggest it is important for us to accept is the difference between kindred and affinity. Those related by kindred are blood relations. Those related by affinity are related by reason of marriage of or to others, which we term relatives in law or step relatives. As matters stand at the moment marriages within both groups are illicit.
The noble Baroness has made it clear that the Bill does not disturb the prohibition upon marriages between those closely related by blood. This I am sure, is right. I am an ignoramus in medical matters, but I am told on good authority
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that we all possess dominant and recessive genes and that the possibility of a combination of recessive genes, with unfortunate consequences, is far greater in marriage between blood relatives than it is between those not so related. But the issue is of far deeper significance than that of genetics. There is a profound replusion in most societies and most people against the possibility of sexual relationships and or marriage between very close blood relations. In her book, Family Law, Olive Stone writes:
"The incest taboo is not based wholly or even primarily on biological reasons, since primitive societies in which the biological relationship between father and child is imperfectly understood usually have prohibitions on sexual relations at least between those in the first degree of relationship. A far stronger reason seems to be that of social discipline".
This is reflected in the Sexual Offences Act 1956, which makes it a criminal offence for a man to have sexual relations with a woman he knows to be his granddaughter daughter, sister or mother; and, for a woman, mutatis mutandis. But it is a matter beyond the civil law. Most people believe such relationships to be contrary to the nature of man or, as some would say, contrary to the law of God.
But what of marriage between those not related by kindred but by affinity? As the noble Baroness has reminded us, the issue has been complicated in the past by the doctrine that by marriage the two parties become one flesh. I do not think we can possibly pursue that line today with any profit, and we should be wiser to declare that while marriages between those closely related by blood are contrary to the law of nature and must be forbidden, marriages between those related as we say "in law," or as step relatives, can properly be determined by legislators as they deem wise and proper. And that is what the noble Baroness is asking us to do in this Bill.
However, we do have to ask ourselves what are the principles upon which we ought to make our decisions. What guide lines should we follow in deciding whether it is right to legitimise some or all marriages outside the relationship of kindred? I suggest to your Lordships that the one criterion which, above all, we ought to apply is whether or not such marriages will generally contribute to the stability and happiness of family life. If they would have little or no effect on

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family life, then let us extend the range. If they would imperil further the stability of the home, then let us be very cautious before we open the door wider.
I am sure that your Lordships will need no persuasion from me in the conviction that the family is the basic unit in society and that upon its prosperity rests to a great extent the stability of society in general. Nor do you need me to remind the House of the dangers which already exist. The mounting toll of divorce, the broken homes, the un-happiness which underlies the breakdown of a marriage, the thousands of children growing up without the love and discipline and background of stable home life—all bear witness to a danger which is already a reality. These facts, therefore, compel us to examine with great care what might be the consequences of modifying the prohibitions which at present exist, and to be very cautious before we lift some or all the bans which at present apply. I would not assert that there is no case for lifting some of the prohibitions. There may well be such situations. I am, however, very doubtful about legislating in the wholesale manner presented by this Bill, without carefully weighing all the implications which, I suggest, is impossible in a debate of a few hours in your Lordships' House.
My Lords, let us look into the issue a little more closely. In Family Law, on page 3, Olive Stone writes:
"Sexual relations between members of a family other than the nuclear pair or pairs around whom the household is grouped would be disruptive, and the informality or ' familiarity ' normally existing between members of a family would quickly disappear if sexual or conjugal relations between its members were possible".
This view had been upheld earlier by the distinguished anthropologist, Professor Malinowsky, Professor of Social Anthropology at the University of London, who wrote:
"A group leading a joint life with the intimacy of daily concerns, with the need of an organized authority and unselfish devotion, cannot tolerate within its framework the possibility of sexual approaches, for these act as a competitive and disruptive force incompatible with the even tenor and stability of the family".
In other words, he held that marriage should be forbidden when a nuptial relationship is considered to be incompatible with a family relationship already in existence. Thus, in most cases, a step-
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parent is in loco parentis towards stepchildren, and has a special and particular relationship towards them. That relationship would be quite different if the stepparent regarded himself or herself not only as a parent but as a possible husband or wife. The same is true of those who adopt a child. It is true also of parents-in-law.
The issue is not so serious regarding marriage between collaterals of the same generation. The marriage with a deceased wife's sister or deceased husband's brother has not, I think, disrupted family life. But it is quite a different matter to consider marriage between those related by affinity in the ascending or descending line, and the commixture of different generations.
It needs little imagination to picture the disruption to family relationships if stepchildren, who have been brought up to know the step-parent as father or mother, and to accept the natural display of affection as that of a parent, discover that those symbols of affection are those of a suitor and not a parent. Consider the difficulties which could arise when stepchildren find that their step-father has become a brother-in-law because he has married their sister. Consider the confusion when, as so often happens, stepbrothers and sisters are brought up together and regard themselves virtually as blood relations, when the full child of one of the parents finds himself or herself a step-brother-in-law or step-sister-in-law to his or her own parent.
My Lords, there is a significant omission in the Bill. It says nothing about the possible marriage of an adopting parent and an adopted child.
Baroness WOOTTON of ABINGER: My Lords, if the right reverend Prelate would be good enough to give way, I think I am right to say that marriage is not permitted between an adopting parent and an adopted child. The adopted child is in the position of a natural child.
The Lord Bishop of LONDON: My Lords, that is exactly the point to which I am coming. The reason, I presume, why the noble Baroness has made this omission is, as she has pointed out, because, under the Adoption Act 1950, to quote Halsbury:

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"An adopter and the person he has been authorized to adopt under an adoption order are deemed to be within the prohibited degrees of consanguinity and this is so notwithstanding that some other person is authorized by a subsequent order to adopt the same infant".
Thus, although an adopter and an adopted child are not blood relatives, they are deemed by the law to be related by kindred and not by affinity. The reason presumably is that this relationship is so close that it would be entirely disruptive for the possibility of marriage to be entertained.
However, is not the relationship between a step-parent and step-children often as close if not closer than that between an adopting parent and an adopted child? Are not both in loco parentis? Would it not be as harmful to family relationships for step-parents to be able to marry their step-children as it would be for adopting parents to marry their adopted children? I think therefore that the noble Baroness has not been entirely logical. If she wants to remove all prohibition on marriages between those related otherwise than by blood, then why does she not seek to remove the prohibition between adopter and adopted child? I interpret her reluctance as a recognition of the danger to family life which her proposals involve.
The complications and the dangers are magnified by the ease of divorce. If it were possible for a son to marry his father's wife they might each obtain a divorce to do so. The husband who tires of his ageing wife might well see in his step-daughter the youthful graces which he had once seen in his wife, and divorce her in order to marry his youthful stepdaughter.
Perhaps I can sum this up by quoting a letter I have received from a lady who told me that she might be involved in this kind of complication. She and her husband have both been married before. I gather from her letter that she has divorced her husband. She points out that if her husband were free to marry her daughter, and have children, he would become step-grandfather and father to his child and he would become son-in-law to his own ex-wife. His new wife would become step-mother to his children and she would also be their step-sister.
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There are also more subtle dangers, and I remind noble Lords that I am quoting from a letter. She says:
"Women will now worry when their daughter becomes 16 if the step-father makes too much fuss of her. At the moment it is wrong for step-fathers to interfere with step-daughters. If this deterrent is taken away it will happen more and more. All young girls practise womanly wiles with fathers, and what red-blooded man is going to ignore this if he knows the girl is legally available sexually?"
That is a point of view that has been put to me. I leave it to your Lordships to work out the complications of relationships which could be created by a wholesale removal of the prohibitions on marriage between those related by affinity as is suggested in this Bill. I merely say now that it needs little imagination to picture the confusion which could be created in family relations, the distrust between parents and their children and step-children if there was to be the unfettered freedom that is suggested by this Bill.
It is true that in certain countries legislation has been introduced to remove the prohibition on marriage between those related by affinity. I understand this has been done in Australia, but I have no information as to details. In New Zealand, the Marriage Act 1955 provides that the Supreme Court, which is the equivalent of our High Court, may give consent to any marriage which would be void for affinity only, but not for consanguinity, provided that the court is satisfied that neither party has "caused or contributed to" the termination of any previous marriage by the other party. In the case Re. Hoskin 1958 New Zealand Reports 604, the Court allowed a stepfather to marry his step-daughter but laid it down that it retained a discretion which would be exercised, for instance, to prevent anyone taking advantage of a guardian-ward situation, or making a marriage with ulterior motives as to money or property.
The example of New Zealand suggests that there are considerable risks and dangers attached to relaxing the restrictions on marriage between those related by affinity, and, if it is thought desirable, there should first of all be careful examination on our part of what is involved and of the possible consequences.
May I sum up, my Lords? We are all, I take it, agreed that there are weighty

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reasons for prohibiting marriage between those closely related by consanguinity. My plea is that there are also important reasons for prohibiting or at least controlling marriage between those related by contiguity. The cases arising under this latter category are less obvious than those in the former. But I think it possible that marriage, say, between step-parents and their step-children could be as socially disruptive as would be marriage between blood relations. So we ought to proceed with great caution.
I hope that after this discussion the noble Baroness will withdraw her Bill, for I cannot accept that the issues which could have such far-reaching impact on the stability of family life should be dealt with in a private Bill and after a few hours of debate in this House. I am not satisfied that there is any widespread demand for the reforms that she is seeking, though she has given us some very touching cases, and no doubt we shall hear of other hard cases. If at a later date such a demand should become apparent, then there would be a need first of all to seek the views of the Law Commission. One would hope also that an inter-departmental committee would examine all the issues that are involved and that it would investigate the practice and the experience of countries where the law has been relaxed. I would think it essential to consult with lawyers, social scientists and theologians drawn from the different religious traditions of this country. In this way, we could inform ourselves of the possible consequences of such action as the noble Baroness proposes, and we could avoid possible dangers to the stability and happiness of family life.
If it is considered desirable to take action, I hope that it can be taken un-controversially. Therefore I plead with the noble Baroness that she should, after this full debate, withdraw her Bill, for there are many of us who would not wish to have to vote against it.
4.48 p.m.
Lord MANCROFT: My Lords, it is nearly 30 years ago since I first started to draft a Bill with exactly the same title as the Bill of the noble Baroness, the Marriage (Enabling) Bill. It took me 11 years to get it on the Statute Book. That Bill was intended to make it possible for
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a man to marry his divorced wife's sister and vice versa—not the deceased wife's sister, as the noble Baroness has begged us to bear in mind, though that took even longer to get through your Lordships' House.
I am fully aware of the difficulties of this problem, and I should like to warn the noble Baroness of one or two of them and remind the House of the views held by your Lordships in those days. The first difficulty of course is that hard cases make bad law. I shall give your Lordships the example which helped me to get my Bill on to the Statute Book, hard though it was. As most of the people concerned are well known in their own localities, I have taken the precaution of obtaining their permission to mention the case in the House today.
This was a case of a young sergeant in my regiment. He was stationed in Cairo during the war and fell in love with and married a girl who worked in the GHQ. A baby was eventually on the way and she, at the time that Rommel was threatening Cairo, was evacuated via the Cape back home to Scotland, where she went to live with her sister. In due course, having, alas! a roving eye, she took up with a Polish Air Force officer and ran away with him, leaving her young daughter to be cared for by her sister. The sergeant obtained compassionate leave, came home and tried to patch up his affairs—alas! to no avail—and the inevitable divorce ensued. His wife went off and married her Polish officer. My sergeant, however, of course went to make friends with the sister-in-law whom he had never seen before and of whose existence he hardly knew, who was mothering his child. Your Lordships can visualise the inevitable result: they wished to get married. But whereas his former wife was able to marry the Polish officer, he suddenly discovered—he did not know it beforehand—that he was not entitled and was not enabled by law to marry his sister-in-law. He did not know that was the law; nor, frankly did I, and nor did quite a few people—including one or two registrars who had accidentally married people to their sisters-in-law without realising they were doing wrong. There was one interesting aftermath concerning a lady from Manchester who had been married, wrongly, to her brother-in-law for some years. It was a marriage which was not going

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well, and the brother-in-law read of my Bill in the Manchester Guardian, folded his newspaper, heaved a sigh of relief and went off to live with a barmaid in Bridlington!
Strengthened by my sergeant's case, I launched my Bill and the objections principally raised were exactly those so cogently put before your Lordships by the right reverend Prelate the Bishop of London—the primary one, of course, being the unacceptable hazard in family circles, particularly in modest and rather crowded family circles. It was this matter that I debated long and with great difficulty with the then Archbishop of Canterbury, that most remarkable and distinguished Archbishop, Lord Fisher, who was sympathetic but took exactly the same view as the right reverend Prelate the Bishop of London now takes, which at the time I found very difficult to refute. He asked me whether I could find any evidence one way or the other as to whether such circumstances were likely to upset a home. My Lords, it is very difficult to prove a matter like this one way or the other. I know of only about a hundred cases affected by my Bill—and I suppose by the time I had finished my 10-year negotiations I knew practically all of them—and I was unable to produce any evidence one way or the other, to the Archbishop's satisfaction or dissatisfaction,
However, it did have one interesting and not entirely unpleasant postscript. I rang up the Archbishop of Canterbury's office one morning to give him some information he had asked me to seek. I realised at once that I had got a wrong number because instead of the cheerful voice of his secretary, with which I had become familiar, the telephone was answered by a very dulcet and sweet feminine voice. I was certain I had got a wrong number and I said: "I am very sorry: I think I have a wrong number. Is that the Archbishop of Canterbury's office?" And the sweet feminine voice said: "The Archbishop of Canterbury's office?—anything but!" I am happy to say that the Archbishop was delighted.
Nevertheless, in due course he relented and my Bill duly passed into law. But now appeared something which makes me strongly support the views put forward by my noble friend Lord Long and the
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right reverend Prelate the Bishop of London in favour of a further and wider inquiry into the whole matter. My couple—my sergeant and his sister-in-law—were eventually married. They were both staunch church people and would have liked to have been married in church. That, of course, was not possible. I believe it is now possible frequently for a blessing ceremony to occur after the marriage, but there is no possibility of a marriage taking place in church. I understand that is under consideration in certain circles though, not being myself a member of the Church of England, it would be impertinent for me to comment on that. They were married in a registry office and had the kindness to ask me to be their best man.
My Lords, there is nothing more arid or unhappy than a marriage in some registry offices: nothing more likely to discourage people's belief in the sanctity and importance of the promises being made. I wonder whether, when these inquiries are being made, somebody could look into some means of dignifying the ceremony which now plays so much greater a part in our marriages and our matrimonial life than it used to. I myself have made this statement once in public before—and I wished I had not, because I was immediately challenged by the Registrar-General to try to produce a better ceremony. I had not realised how complex and difficult that would prove. I would commend it to the right reverend Prelate's committee when it is finally set up.
I hope this body of inquiry will be set up and I hope it will cover a much wider sphere of interest in this most difficult and complex subject. We have learned in the past 25 or 30 years since I first introduced my Bill: the sanctity of marriage is being rapidly weakened, illegitimacy no longer carried any stigma; people, in order to satisfy their tax gatherer, live openly and cheerfully in sin and do not even call it sin. There are very much wider problems than those which are raised by the noble Baroness's Bill and although I sympathise with her naturally, having been myself successful—so I say this rather smugly—in doing the very thing she is trying to do, I think she is up against real difficulties. I hope, therefore, that she will agree to the proposals put forward by the right reverend Prelate

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the Bishop of London and my noble friend on the Front Bench to let the matter be taken further. If she does not agree, then I only hope it does not take as long as it did in my case for her to get her measure on the Statute Book. I hope that she, and indeed the House of Lords, are still here to see it successfully carried through.
4.56 p.m.
Lord SOPER: My Lords, I find myself in a certain difficulty which springs from the fact that there are undoubted and complicated issues involved, of which we can take notice and for which we ought to be prepared; but as I compare them with a number of facts which are already available, I find myself able, and enthusiastically able, to support the Bill which has been introduced by my noble friend this afternoon. I propose to adduce the various reasons why, despite the probabilities and possibilities of danger and difficulty, I feel on the whole it would be wise and proper that we should give this Bill a Second Reading. There may be Amendments and changes in Committee and I, for one, would not seek to resist them if they can be properly argued. I take note of the kind of warnings that have been uttered already so cogently in this debate.
I begin with the certainty that there can be no theological objection to this Bill once the Levitical tribal system of consanguinity allied to affinity has been breached and broken. I have nothing to add to what has already been said about consanguinity—which, by the way, has nothing to do with this Bill—but I am satisfied that there can be no theological proposition sufficient to warrant a refusal in law to allow people who are already in a state of affinity to be prevented from marriage in circumstances which are peculiar to them and therefore cannot be regarded in general terms.
That leads me to the second point. I listened with considerable interest to the problems which may arise. I have been a practising parson for more than 50 years and I must confess that I have not come across these problems. If I have come across them, they have been problems which do not relate to the particular issue in hand. For instance, if it be argued that a step-father and a step-daughter may
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engage in relationships which are dubious and sexually dangerous because the possibility later on may be that they may get married, I would ask the House to remember that my noble friend made it as clear as indeed was made in the report of 1956, that it is just as likely that theimpossibility of marriage may provoke identical relationships of a sexual and disadvantageous nature. I find it difficult—in fact impossible—to accept the proposition that the sexual practices will move in a particular direction if this Bill goes forward.
In my time, I suppose I have officiated at the marriage of hundreds of people and I reflect upon those introductory remarks which are at any rate made in the book of offices to which I am accustomed. We ask for what marriage was ordained, and the first answer is that it was ordained for the mutual society, help and comfort that the one ought to have of the other. The second is that children may be brought up in the care and nurture of the faith.
Gorer, in his anthropological efforts up to 1950, made much of the fact that marriage was largely complementary—the breadwinner on the one hand, and the housekeeper on the other. But when he returned to the theme, he introduced the idea of symmetrical marriage as being much more likely and much more common than the traditional complementary form of marriage. I do not know to what extent he is exact, but I do know out of my own experience that the idea that marriage is a very satisfactory way in which two people who are alike in many of their desires and attitudes can find happiness in the role of matrimony tends in many respects, particularly among those who are older, to be a much more potent reason for the preservation of marriage than merely the endeavour to marry rather than burn, as your Lordships will remember St. Paul said, though he was considering not faggots in Smith-field but the burning of sexual desire.
I believe that those cases which have already been advanced are much more likely to fall within the category of symmetrical marriage, and have relatively little to do with the sexual urges which are so much more dominant in earlier years. It is for that reason, among others, that I do not horrify myself by

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the prospect of an inordinate amount of moral disorder flowing from the abolition of these affinity laws. Out of my experience, which I can only offer for what it is worth, I should have thought that it would strengthen the basic concept of marriage which is, in my judgment, a theological proposition, or, if you like, a sacramental proposition based on natural reason or natural theology. But, in fact, the married state, in terms of the mutual society, help and comfort of the one for the other, is one of the basic laws of the universe in which we live, particularly in relation to the species to which we belong.
It would be pretentious of me to proclaim any expertise in this field. I can only offer my experience as a working parson over many years. But, far from the abolition of the affinity laws creating a much greater degree of disorder, and sexual disorder, in marriage, I should have thought that it might well persuade many people who today regard marriage as a very trivial occupation that it has a real context, and that this symmetrical idea of people coming together can well be the basis of the kind of society in which we perhaps hope we may be able to live, or at least see our children living in.
What we are discussing today is not some great surge of many peoples. It is very few indeed who will avail themselves of this possibility. I am reminded that it was Abraham Lincoln who, in the middle of the Civil War, is reported to have said, when he remitted the death sentence on a young deserter, "To save one life eases me". I find myself attracted to that easement of spirit, in which this relief from the prohibition and legal impossibility of affinity may well persuade a great many people not to follow the course of action which has been so luridly described—and I have no objection to the prospects being alluded to; in fact, being emphasised—but I would take a contrary view. There is the adventure in completing the dissociation between consanguinity and affinity, in which consanguinity is obviously wrong but affinity can be right. After all, this is an enabling Bill. It does not commit anybody to do anything. It is for that reason that, in principle, I would invite your Lordships to support it.
I have one last comment and I revert to what I said earlier on. I am not blind
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to the kind of problems that may, in particular cases, arise. I should be prepared to see in Committee, if this Bill should receive a Second Reading, the prolonged and careful investigation of some of those problems which have been clearly set forth in your Lordships' House this afternoon. But what I do suggest to your Lordships as I sit down is that, on the whole, I think this will do a lot of good to a few unhappy people, that it will not produce the kind of calamitous results which have been advertised, and that it will preserve rather than tend to erode the true principles that lie behind Christian marriage.
5.56 p.m.
Viscount BARRINGTON: My Lords, I understand that this is a non-Party issue. I hope that I am right, because I find myself the only speaker on this subject from the Liberal Benches, and I want to make it absolutely clear, before anything I say is heard or not heard, that I am not speaking for the Liberal Party. I know that they would prefer I said that. I am also slightly conscious that we on these Benches are one Party with three Benches, and I am speaking between two bishops and one honorary bishop, or near-bishop, if I may call the noble Lord, Lord Soper, that, all of whom have some—if I may risk an understatement—knowledge of the theological, sacramental and even symmetrical aspects of marriage. I have no knowledge of these, because I am possibly the only unmarried speaker.
Having made those remarks, I should like as quickly as possible to say how grateful I am to the noble Baroness, Lady Wootton, for having put so clearly and shortly a very interesting case. She has been warned by the noble Lord, Lord Mancroft, that things will not become easier, and I wish I could say that I will make it easier for her. My Lords, I cannot, because I have to say—I do not know whether it is once in a way, once in a right way or once in a wrong way—that I am inclined to follow the much more clear arguments put forward by the noble and right reverend Prelate of the Church of which I am a professing member.
I should like to illustrate, by an example which is half fact and half fancy, a point which I think he made, which is that we are not only considering the contracting parties who may, as in hard cases, be

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very anxious to marry, when it would be perfectly harmless in other ways if they did. I am trying to consider two other points: one is the effect on the family, and the other is the effect on the institution of marriage as a whole. To take the family first, the example that I should like to give, if I may call it that, is a fantastic one.
To come to the factual part first, my paternal grandfather went to his public school, which was Eton, at the age of eight and remained there until, I think, the age of 18. During his last years, his uncle, who was some six years younger, arrived there and became his fag. I remember my grandfather telling me with, I think, malicious glee of what he considered a triumph when he had been summoned before the headmaster for corporal punishment, which went on in those days at Eton. He was successful in fagging his uncle, who, luckily for him, had the same name, to act or suffer as a substitute. He thought that it was a great joke. I do not know what the uncle thought.
That is irrelevant to the debate, in a way, but it raises in my mind a dream or an imagination in which I am a younger man than I am now, whose nephew comes to him and says: "My dear chap, all my life I have had the greatest regard for you as an uncle. As from tomorrow's date, when I am proposing to marry your mother, I hope that I may regard you as a son and that you will regard me as a father.' It would mean a very drastic review of married relationships. That is an unlikely position, and one might say that a man of that age could look after himself.
This brings me to the much more important question of step-children. This question was raised by the right reverend Prelate the Bishop of London. Stepmothers always have a very bad press in fairy stories, but I know of many cases where step-fathers and step-mothers have behaved admirably in delicate and difficult situations and have been regarded, as they should be, as parents. We must remember, however, that fairy stories were written before the successful introduction of the Bill of the noble Earl, Lord Mansfield, which became an Act in 1960. In those days, there was only one stepmother, however wicked.
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According to that Act, it was possible for a man to marry the former wife of his brother, his uncle, or his nephew, whether or not he was living; the same applied to a man marrying the sister, aunt or niece of his former wife, whether or not she was living. In other words, it was not a question of pricking the blister about marrying a deceased wife's sister, which the noble Baroness has logically extended to pricking the current bother about marriage with a deceased wife's mother, or grandmother, or daughter-in-law. We have to add the word "divorced". Although one step-mother may be good or bad, I can imagine cases in which one would have at least two or three stepmothers. If they all intermarried, this would, as the noble Viscount, Lord Long, said, take a bit of alcohol to work out. The old-fashioned game of happy families, which I can understand, would have to be drastically revised.
I suggest that this Bill, whose intentions are admirable, could cause immense confusion, not just because it would add to the number of step-mothers or step-fathers but also because it would further complicate the relationships which children encounter. I know of cases where children are absolutely fogged about the relationships that they hold to different people, some of whom they like and some of whom they do not like. For that reason, I should very much like to support the suggestion that this matter ought to be looked into at greater length and, although perhaps it is impertinent to say so, with more expert authority than at least one of the speakers in your Lordships' House has exhibited today.
The other reason is that I believe that, in the past, the whole state of marriage has suffered some bad knocks, although often for good reasons. I do not believe that this is the moment to give it another one. When I say "a knock", it would mean excising eight of the prohibited degrees, leaving, so far as I can work out, only seven cases which are prohibited. That is, a man may not marry his mother, his sister, his daughter, his paternal grandmother, his maternal grandmother, his son's daughter, or his daughter's daughter. I do not regard these as very important, because first cousins have always been allowed to marry, although they are nearly related by blood. If one took blood

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samples, presumably one would find that each had one-quarter of the blood of his grandfather and grandmother.
In terms of pure medical logic, if I had any, I suppose that one could argue—indeed, I am quite sure that somebody will argue—that we ought to strike out the whole thing and allow anybody to marry anybody. I feel that the noble Baroness is the last person to countenance that kind of result. I say that with some conviction, because a very long time ago I had the great privilege of being a member of a delegation of four—two Members of this House and two Members of the other place—who protested against certain excesses, as we then thought, that were contained in the Abortion Bill. Our delegation was unsuccessful. I say that only to show how much I respect and sympathise with the views held by the noble Baroness. My Lords, I have spoken for 10 minutes, which is too long. I know that your Lordships want to hear other speakers, so I will sit down.
5.17 p.m.
The Lord Bishop of SOUTHWARK: My Lords, I must declare an interest—not that I want to marry my step-daughter; first, I have to find the wife before I can marry the step-daughter. Nevertheless, I have an interest, in that, as a bishop, I was confronted with this very problem. I had to give advice, which meant consulting many people, including the late Bishop of Exeter, Dr. Mortimer, who was a very wise counsellor to many in this House, and also the present Bishop of Birmingham, Dr. Hugh Montefiore, with his knowledge of Jewish law as well as Christian law. I am not going to indulge in fancy stories and half truths. I do not think that anything is furthered by supposition. Let us deal with facts, but do not let us ridicule supposed situations.
The facts are as follows. I change the names, for obvious reasons. The people concerned live in my diocese and it would be wrong to disclose their identity. Mr. and Mrs. Jones have a child. The marriage is dissolved. Mr. Jones disappears to another part of the world. The child goes into care. Mrs. Jones marries Mr. Smith. Then Mrs. Smith—who was originally Mrs. Jones—dies from cancer soon after the marriage. Mr. Smith
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has had hardly any dealings whatsoever with Miss Jones—that is to say, the daughter by the first marriage, for the girl is in the care of guardians.
Then, for educational reasons, Miss Jones, who is now 20, comes to live in the house of Mr. Smith, who is 36. She is living there with another girl who is also educationally involved. During the course of time, the step-daughter—Miss Jones—becomes attached to Mr. Smith, and vice versa. They fall in love. They go to the incumbent, who is an incumbent in my parish, who assumes that there is no reason at all why they should not be married. They go also to a lawyer who gives them the same advice. The marriage is announced. The matter is then referred to me. I consult my lawyers. I consult the Bishop of Exeter, the present Bishop of Birmingham and other lawyers, including the lawyers at Lambeth. From practically everyone I received nothing but sympathy—or, rather, Mr. Smith received nothing but sympathy. But I was told that there was only one thing I could do and that was to say that such a marriage could not take place, not because it is criminal but because it is against the civil law, although I was told that it was not against the civil law for them to cohabit and to have children.
The young man, who is a practising member of the Church of England, and to whom religion means a great deal, is faced by a serious problem. Should he go to another country where he is entitled to marry his step-daughter or should he cohabit? For reasons I need not go into—chiefly financial, though—it was impossible for Mr. Smith to go to another country and to marry Miss Jones. For that reason he remains in England, he cohabits and he has two children. These children are illegitimate and cannot be legitimised except possibly by adoption and if he should die first—and he is still a comparatively young man—the woman with whom he cohabits will get no widow's pension, either from the State or from his previous occupation.
That is the brief outline of a story in which I have been involved since 1970. It is a very human story and I know we shall be told that exceptional cases make bad law. What I would say is that if there are people who are determined to live with their step-daughters, though

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perhaps not for the honourable reasons of Mr. Smith, they will do so in any case; they will just cohabit, as people do. I therefore do not think for one moment that by throwing this out we shall safeguard the family. We are much more likely to safeguard the family if we pass something like the Bill of the noble Baroness, Lady Wootton, because it will make it possible for a family such as I have mentioned to live openly and legitimately as a family instead of having to cohabit in the way that they do today, with all that that means for the father, the mother and those two children.
Obviously I have much sympathy with much that my brother, the right reverend Prelate the Bishop of London, has said but I hope that perhaps he and others who think like him will realise that there is another side. Also, if I may say so, it always seems a little sad to me that, when matters of personal relationships, family and sex come up, the Church often seems so negative and backward looking. How much unhappiness have we brought to thousands of people by views which have recently been changed with regard to those who are homosexually orientated? We have not had a proud record—at least not a record of which I am proud—in the Church.
Again, when it comes to divorce, I should like to say to the noble Lord, Lord Mancroft, that it is not correct to say that it is against the law of the Church of England for a clergyman to marry a divorced person. He is fully entitled by the law of the land to marry a divorced person, even without consulting his bishop, if his conscience says so. He has the legal right to marry or not. It is true that the Convocations of the Church of England have asked clergy not to avail themselves of that right, but they can do no more than ask; they cannot make any law in the Convocations which is in conflict with the laws of this country, because we are the established Church. I myself have married divorced people on a number of occasions, and so have many of my clergy friends. I have done so four times in the past 40 years, which is an average of once every 10 years, and when people tell me that if we have lax laws people will all be going over London Bridge to the south side of the river in order to get married in Southwark I say it is quite untrue; they are much
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more likely to go over London Bridge to get married in a more fashionable church on the other side of the river.
But today what we are concerned with is what makes for happiness and for family contentment and, just as I believe that there are times when divorce is permissible and should be encouraged, though only on certain occasions, so I believe that, in cases like this, when it comes to the marriage of a man to a step-daughter there may be cases when it is right. I, for one, would be glad to have been able to have done something for that young man who came to me in distress. It is very sad for me to realise that he and his children have to live in an irregular situation which I think does nothing whatsoever for the honour and dignity of the married state.
5.26 p.m.
Lord HUNT of FAWLEY: My Lords, as a doctor I can tell that this Bill is more complicated and can arouse more emotion than appears at first sight. It is of great importance to some people. It has been put before us today by the noble Baroness, Lady Wootton, because she feels, as do many others, that it is rather unfair when some couples who happen by chance to be step-relatives by affinity and not by blood, fall in love and cannot marry at any time because of the provisions of our present Marriage Acts, and their children have to remain illegitimate for life, with all that that may mean to them socially or in other ways; although this may not seem so important today as it did a few years ago.
We know what some probation officers think; we have had correspondence with the National Marriage Guidance Council and I have talked with two officers of their London Branch. A number of interesting points have arisen. Families differ in the span of time that their generations cover. Before the war I delivered an English girl of 16 of a baby daughter. Her mother had been 16 when this girl was born, so the mother was a grandmother at the age of 32; if family traditions were followed she might easily have been a great-grandmother at the age of 48. It is mostly with this kind of family that we are concerned today. Under modern conditions our generation span is shortening, with changes in our way of life and

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with the introduction into our society of different ethnic groups, in some of which the children mature very early and marry early, too.
At the other end of the scale, I know one family in which three generations have already covered a span of 205 years. Before Christmas, I brought an old friend of mine, nearly 90 years old, to lunch in your Lordships' House. Her grandfather was born in 1774, 41 years before the Battle of Waterloo—almost unbelievable but possible, if one works it out, if a father and son both marry late and have children at about the age of 65, and one of their grandchildren lives to the age of 90. My old friend would never have had the wish nor the opportunity to marry her step-grandfather, had she had one! But in this Bill no fewer than 16 of the 24 provisions which the noble Baroness seeks to repeal are concerned with step-grandparents and step-grandchildren, and with other members of those generations. Even in the precocious family I have mentioned, more than 40 years separated the grandmother from her eldest grandchild by the time that child started growing up. There can be few people who want to marry someone who is 40 years older or younger than themselves.
These particular provisions of this Bill may seem at first to be somewhat ridiculous and not worth including, as my noble friend Lord Long mentioned. But I think they should be kept in, because we know that there are "sugar daddies" about, and that a few young girls and boys sometimes like to experiment and try out their sexuality on somebody they know well who is much older than they are, with no thought of marriage. In doing this they may become more emotionally involved than they had expected at first. Quite young people are sometimes tempted by the idea of marrying someone much older than themselves who has plenty of money. With most large and more or less normal families (I come from quite a big family myself; my mother and father had 27 grandchildren: and no one respects the unity and stability of a family more than I do) nature seems to endow siblings with a certain inborn resistance to making love or wanting to marry other each. I knew a girl who had 12 elder brothers. She used to say that she was the only person in England who had played cricket for 14
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years and had never batted once; she was always longstop. And she never fell in love with any of her brothers!
But with step-relations things may be very different, when generations grow up closely together, perhaps with one or two broken marriages among them, with children of former marriages being absorbed into new homes, and with step-relations of much the same age connected by affinity and not by blood living in close proximity to one another. Under these conditions they may easily fall in love. Our present Marriage Act makes some of them who are not allowed to marry, and their children, very unhappy. The circumstances of every couple are different, and even with the same couple the situation may change over the years.
For instance, a man may make a second marriage with a woman who has a daughter only a little younger than himself. If he should fall in love with that daughter and wanted to marry her, while his wife is still alive and with him, that would mean a divorce, with his wife having to cite her own daughter perhaps as co-respondent—a most unhappy situation. If, however, his wife were dead or divorced (perhaps some years before they fell in love) and he is by then in his 50s and she in her 40s, things would be very different. At that time he and the daughter would be two people of mature age related by affinity and not by blood, and with no one else involved, and she might be invaluable to him looking after his other children. To allow them to marry then most people would agree would be sensible, and I am given to understand that the Marriage Guidance Council would probably accept that.
We must consider very seriously the arguments put forward by the right reverend Prelate the Bishop of London, based partly, I think, on experience of probation officers, that a childish maternal or paternal love for an older step relative, especially for one who is in loco parentis to the child, may grow into sexual love without the child's proper understanding of this and before it is ready for it. We must all agree, surely, that such a situation may do considerable harm in a close-knit community. I am in complete agreement, too, with the right reverend Prelate that adolescents and other young people must be protected as far as possible from this

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sort of thing, especially since we have lowered the age of consent to 16. But I do not believe that the argument which has been put forward for their protection is quite as powerful as has been suggested. Our present Marriage Act may discourage but it does not prevent a couple, of whatever age, from falling in love just because the present law prevents them marrying later. One may be forgiven for thinking that in our present permissive society step-relations who live close enough and long enough together to fall in love, will make love, whatever the law says about their not being allowed to marry in future.
Later, with the passage of time, when the younger of them has reached a mature and responsible age, when they have become really fond of one another over the years, with the right kind of affection, if they are not related by blood, if no one else in the family would be hurt, and they still want to marry, it might well be asked why should they not; why should the law stop them then? We know that there are an appreciable number of couples in this position in Britain today; step-relations who may not even have met for the first time until they were both over the age of 21, whom the law as it stands prevents from marrying, and whose children must remain illegitimate. That may itself give rise to complications when entailed interests or a title are involved. Another important point, which the noble Baroness made, is that if the man dies there will be no widow's pension and perhaps not even a pension from his employer. To forbid them marrying under these conditions seems to many people to be unfair, intolerant and unreasonable. Some of these couples have gone abroad to get married, but many cannot afford to do that.
As a possible way out of our difficulties, my Lords, and as a kindly, generous and Christian compromise, I would like to propose two Amendments to the noble Baroness's Bill: (1) the introduction of an age limit—perhaps 21 or 25 or any other age which may be agreed—for both partners before such a marriage is allowed by law to take place; and (2) no such marriage may occur without the previous dispensation of a judge in chambers who will, in his wisdom, consider all the circumstances, protect the interests of the whole family, and make quite sure that no
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one is likely to be hurt or to be sufficiently involved to make the marriage undesirable.
I know that others agree with me over this. Although the noble Baroness's Bill does clear up some anomalies, it goes too far in repealing outright all the provisions mentioned in it; and I believe many people think that Amendments are necessary, as we have already heard. The Chairman of the Executive of the National Marriage Guidance Council, Professor E. J. Griew, wrote to the noble Baroness on 18th January this year, saying:
"I think that we should ask you to consider introducing some qualifications into your Bill".
And he added:
"in Australia and New Zealand there is legislation which permits marriage between persons related by affinity provided that the consent of the court is obtained".—(Cretney, S.M., Principles of Family Law, 2nd ed., Sweet amp; Maxwell, 1976, p. 39.)
For us to turn down this Bill altogether today would, I think, be a retrograde step. I would support the noble Baroness, but only if the Bill can be amended by introducing the two safeguards I have suggested. I am advised that the exact wording of these Amendments should be left until they can be suitably drafted by parliamentary counsel for the Committee stage. I hope that they will be quite short—a few words inserted after (a), meaning, "providing both parties to the proposed marriage are over the age of—" (whatever we choose) and after (b), "provided that every couple related by affinity and covered by this Bill, who wish to marry, first obtain legal dispensation from a judge in chambers".
In conclusion, may I say that the Bill is well named a "Marriage Enabling Bill" and not a "Marriage Encouraging Bill". It will go a long way towards protecting children—which is what the right reverend Prelate wants—discouraging all those step-relations who are too young to marry or who will upset others by doing so; while at the same time being generous, and enabling those of mature age and who are really fond of each other to marry and thus legitimise their children. It will give us the best of both worlds.
If no one else wishes to do so, I should be happy to propose these Amendments myself at the Committee stage when other, perhaps more adequate, Amendments might be added to the Bill and

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discussed fully. With that proviso, I should like to support the proposal that the Bill be read a second time.
5.41 p.m.
Lord ROBERTSON of OAKRIDGE: My Lords, during the relatively short time that I have had the honour to be in your Lordships' House I have come to recognise in the noble Baroness, Lady Wootton of Abinger, someone who not only takes great personal interest and concern in other people, but is prepared to take action on their behalf, and I respect her all the more for it. One could not fail to be moved by the examples which she and the right reverend Prelate the Bishop of Southwark gave us. However, I am bound to say that I am inclined to follow the line of the right reverend Prelate the Bishop of London, because I feel that in meeting some hard cases we might be opening the way to greater unhappiness elsewhere. Therefore, at the very least the subject needs further study.
The particular aspect of the Bill that concerns me most is the effects of the changes on step-children. The changes would allow someone to marry a child who had grown up in his or her household, and would be likely to produce conflicts of interest which I believe would damage family life. As has been indicated, this is not just another "deceased wife's sister", or, indeed, "divorced wife's sister"; the Bill would permit marriage between those who had previously enjoyed what was virtually a parent/child relationship.
When I began to think about the Bill I turned to the Bible to see what that said. I found that the guidance there was clear. I was left in no doubt that what is proposed by the Bill is, in fact, contrary to what is written in scripture. I remain to be convinced that, just because Leviticus was written many thousands of years ago, we can brush it aside. After all, the Ten Commandments stem from the same age. What is more, these laws have been enshrined in our Church traditions and our Prayer Books, and presumably not without good reason. Incidentally, if the Bill were to become law there would have to be provision so that clergy were not faced with a conflict of conscience. I freely acknowledge that what may be
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considered by some to be morally binding for Christians need not be enshrined in the law. However, I think that we must look at what is behind those prohibitions in scripture and their relevance in modern society.
My second point is also taken from the Bible and has been mentioned before; namely, that when two people marry they become "one flesh". We have been warned against taking that point too far and I accept that. But, whatever else the phrase involves, it surely means that, to a very considerable degree, the two persons' families become one family and the relationships and the relatives of the one partner become the relationships and relatives of the other partner. That is something I certainly have found to my joy in my own marriage. In the case of step-children, the parents of the home in which they are brought up become, in a very real sense, their father and mother even though one is, in fact, their stepparent.
When I have spoken to people about the Bill almost invariably their first reaction has been that, because no blood relationship was involved, no great issue was at stake. However, I understand that it is generally recognised in most societies that, in addition to the question of blood relationships, there are social and psychological reasons why people should not be allowed to marry within the family, and that is exemplified by our laws on adoption which forbid a man or woman to marry his or her adopted child. I have no pretension to be a psychologist, but I understand that it is considered that a child needs to attain a psychological independence of its parents as it grows up, and that parents have a duty to assist that development. In my view there would be a danger that the Bill could work against that process and indeed, in extreme cases, might lead to instances where a parent abused the child's filial obedience and trust to bring about a marriage.
As regards the relevance of the prohibitions, we live in times where there are increasing numbers of children and adolescents being brought up by stepparents. With those step-parents they need to strike up a loving, trusting, nonsexual relationship and one which will still enable them to develop their own independence and fulfilment. In my view

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the Bill would remove an important protection both for those children and for those who need it most; namely, those who are building a second marriage, absorbing children happily and safely into it. For those reasons, although we must certainly study further the problems which have been brought to our attention today, it would be a mistake—without that further study—to give the Bill a Second Reading. Therefore, I join with those who have expressed the hope that the noble Baroness will withdraw her Motion.
5.48 p.m.
Lord McGREGOR of DURRIS: My Lords, I hope that I may be forgiven if I begin by traversing some ground already covered by noble Lords. It is necessary for my argument and I shall be very brief. The degrees of affinity with which the Bill of my noble friend Lady Wootton deals, entered modern history in the later Middle Ages when their purpose was, in part, to give the practical reality of divorce a vinculo—that is, a licence to marry again—to the rich or powerful in a society which maintained that marriage was indissoluble. To the rule that certain degrees of blood relationship were barriers to marriage, the canonists added the impediments of affinity. Sexual union, they held, made man and woman one flesh and hence the blood kinswomen of a man's wife and mistresses were connected to him by way of affinity. Spiritual kinships through godparents was also held to set up similar barriers. The greatest historians of English law wrote of this system as intricate rules behind which
"there is no deep policy … no strong religious feeling"
and they stressed
"the incalculable harm done by a marriage law which was a maze of flighty fancies and misapplied logic".
Many of the wilder extravagances disappeared at the time of the Reformation, but certainty about the marriage and status of children, of persons within the prohibited degrees of affinity, was not achieved in England until 1835. Since then—but only in this century—the pro-hibitions began, as my noble friend Lady, Wootton pointed out, to be narrowed and marriage between a man and his deceased wife's sister and his deceased brother's
1162
widow and between persons and their deceased spouse's nephew, niece, uncle or aunt, and between their deceased nephews, nieces, widows or widowers, have been permitted. Restrictions on divorced persons were removed in 1960.
Thus, as she said, my noble friend's Bill would bring this history to its conclusion and remove the prohibitions upon marriage which stem from the medieval view that relationship by marriage is equivalent to relationship by blood. Assuredly, her Bill cannot be described as a sudden leap in the dark.
What then might be the objections to this final step? If it be argued that there are theological or religious difficulties, it is hard to assess their weight, because, as in all previous discussions of these issues, persons equally learned, equally pious, equally competent to interpret the will of God and equally concerned to promote the public good, have reached diametrically opposed conclusions. Indeed, during this debate we have listened to just such a conflict. Accordingly, we have no choice but to judge the Bill in terms of its likely moral and social results.
In principle the chief objection on these grounds which might be brought against the Bill is the same as that which was directed against the proposal to permit marriage with a divorced wife's sister or a divorced husband's brother. In this case the Church of England and other Churches argued—and I now quote from their evidence to the Morton Commission—that:
"the family is and ought to be a secure, stable unit from which is excluded by universal custom any sex interest between its members … The possibility of marrying a divorced partner's brother or sister casts a terrible shadow backwards. The triangle of emotions is taken into the circle of the family. Affections … are no longer suppressed as improper and incapable of fulfilment".
On those grounds the present Bill could be held to open the way to the development, for example, of such affections between a man and his step-daughter, as was envisaged in the speech of the right reverend Prelate the Bishop of London. It is to be noted that the Marriage (Enabling) Act 1960, which enabled such divorced persons to marry, has not resulted in any of the consequences feared by some of the Churches. I do not fear the aftermath of my noble friend's Bill. My confidence is based on my belief that

1163
the removal of these prohibitions will not affect people's behaviour, the growth of illicit desires or the willingness and ability to satisfy them. The record of the simpler and of advanced societies suggests that the establishment of relationships within the family, which would undermine its stability, are not so much prevented as avoided in accordance with any particular society's cultural development.
To reject the Bill would be to deny marriage in those instances to which there can be no moral or social objection and which at present suffer the hardships described by my noble friend, in the hope of avoiding behaviour which cannot be prevented and which in any case no longer attracts legal sanctions, as the right reverend Prelate the Bishop of Southwark explained.
This is not the place to embark upon an anthropological lecture, but, as someone who has to lecture students on these and related subjects, I should like to say that it is not safe for the right reverend Prelate the Bishop of London to rely in these matters upon the 50 year old book, the Sexual Life of Savages, written by the late Professor Malinowsky. Modern scholarship is set out cheaply and elegantly in the book of Professor Robin Fox, available in Pelicans on Marriage and Kinship.
Finally, if it be argued that the present law deters the development of improper relationships by serving as a means of maintaining appropriate sexual distances between members of the same household, then at the same time it must be demonstrated that those whose behaviour is alleged to be shaped in this way actually know what the law is. Like my noble friend Lady Wootton, I have been astonished to discover how many generally knowledgeable people—including, as we have been told, members of the clergy—are ignorant and muddled about the law which this Bill seeks to repeal. I conclude that legal prohibitions and restrictions play very little part in controlling the motivations of citizens in this area of life. We must not overrate the powers of law or underrate the power of cultural and moral disapproval.
I am opposed to a further inquiry by way of departmental committee or the like, for I do not believe that further study
1164
could unearth or discover evidence not already easily accessible. Sometimes, at least, life ought not to wait upon blue books. I do not agree with the noble Lord, Lord Mancroft, that this Bill can affect the sanctity of marriage for the reasons stated by my noble friend Lord Soper. I hope that noble Lords will give this necessary Bill a Second Reading.
5.59 p.m.
The Earl of LAUDERDALE: My Lords, I hope that it will not be argued further that the antiquity of a book measures its value or otherwise. There are great books of great antiquity from all the cultures of the world whose wisdom has not yet been transcended by the latest Penguin specials. I hesitate, and hesitated, to join in this debate because I have no specialist knowledge whether of anthropology or of social science. I merely happen to have been very happily married for 43 years and have a number of grandchildren and hope for more. It is because I feel deeply about this rather than knowing much about it that I speak. I hope that the noble Baroness, Lady Wootton—who is very dear indeed to all our hearts (I hope she knows that, I think she does)—will realise that, although this Bill is well meant, enough has been said to show that it is shallow in consideration and socially dangerous. Far better, in an area of this sort, to think again, to study again, to follow up the suggestions made so moderately and, I should like to say, so Christianly by the right reverend Prelate the Bishop of London.
This is not simply a matter of law. It is a matter that touches on something deep in human nature which we call shame.
"While shame keeps its watch virtue is not wholly extinguished in the heart".
It was written in the 17th century that:
"All irregularity is catching. It has a contagion in it, especially in an age so much more inclined to follow ill patterns than good ones".
The case deployed this afternoon has been that affinity does not matter, although blood relationship does. I should like to suggest to your Lordships that Britain as a neurotic, violent society—increasingly neurotic, increasingly violent, increasingly lacking in respect for authority of any kind from any source—has derived those qualities in part, at any rate, from the dissipation of family life.

1165
I was much struck by a point made by the noble Lord, Lord Hunt of Fawley, who pointd out as to the current marital situation that the generation gap is narrowing all the time. That is in practical terms one of the features which should cause us to pause. Certainly there is an increasing proportion of what I will call family set-ups where one parent is the step-parent to a step-child. Hitherto any sex relationship between the generations, whether of blood or affinity, and indeed whether the relationship be step-or not, has been taboo in order to protect the young dependants.
I was much interested in the learned summary which we had just now from the noble Lord, Lord McGregor of Durris. Whether he is a great medievalist I do not know, but if I heard him right he did use words to the effect that the medieval canonists added the impediments of affinity. Not so far as I am aware in the ancient Church. I have been instructed in these matters, it so happens, by a wife who is a member of the Orthodox Church and who comes from a part of Europe which has been torn by war since life on this planet was known. In that part of the world marriage between godparents and godchildren, or between the families of godparents and the families of their corresponding godparents' children is forbidden. The reason was simply that, if in war a father is killed, it is the godfather's job to take the children into his house and look after them, and that cannot be socially safe under circumstances where there can end up an ordinary, if I may put it that way, external sexual relationship.
It may be said that the situation in Britain today is very different. I am not so certain that it is, because the number of families in which a step-relationship exists or shall I say the number of households in which a step-relationship exists is far greater now than at any time. Surely the whole concept of taking a young person into your household, be it stepson, niece, nephew, godson, step-daughter, is to help the child to grow to emotional maturity in a situation where there is no competitive affection; where affection is de-sexualised, and where indeed the children can be assured at least by the fireside of being undistracted by overt sexuality with an elder with which a child could not emotionally cope. To permit a sex
1166
relationship here must lead to a child's greater dependence on the step parent when the child should in fact be growing up to independence.
All sorts of special cases can and have been adduced. Of course we were moved by the right reverend Prelate the Bishop of Southwark and equally by him whom I will call a pro-prelate, our great friend Lord Soper. Of course we are moved by such cases; but as we were vividly and effectively reminded by the noble Lord, Lord Mancroft, hard cases make bad law.
It can be said that there will be cohabitation anyway between or within the prohibited degrees if people want it. Nobody is saying that that is not so. What we are asking is whether society should endorse it. Embedded, as I say, in the whole issue is the deep issue of shame. This is what the ancient social taboos are about; this is what we tamper with at our peril. My Lords, man is a beast when shame stands off from him, and modesty once banished never returns.
6.8 p.m.
Lord ROBBINS: My Lords, I do not intend to take more than two minutes of your Lordships' time. It seems to me relevant to remind those of your Lordships who have, with sincere passion, defended the prohibition of affinity—in general, deriving from ancient works, as the noble Earl reminded us—that much the same case was argued with greater violence, but no doubt deep sincerity, on the prohibition of marriage with a deceased wife's sister, which was only repealed in the early years of this century. As one who happily grew up in a family in which such a marriage took place, after the deceased wife's sister had nursed my mother through a most painful kind of cancer, I remind myself that this was one of the happiest and incidentally, may I say it, one of the most pious marriages that it has been my happiness to observe.
6.10 p.m.
The MINISTER of STATE, HOME OFFICE (Lord Boston of Faversham): My Lords, I am sure that whatever decision your Lordships come to today, we are very grateful indeed to my noble friend Lady Wootton of Abinger for giving us the chance to debate this matter. She is held in high regard

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inside and outside your Lordships' House and she is widely respected for her views and great humanity, especially on social matters, and for the care and understanding and, I would add, compassion which she brings to bear on the individual cases that come her way.
Although the subject-matter of the Bill is one which the Government customarily leave to the initiative of Private Members, we have given some thought to the content and purpose of the Bill, and it may be helpful if I intervene now to put before your Lordships some considerations which it may be helpful to take into account in deciding whether the Bill should receive a Second Reading.
Baroness Wootton has given us a clear account of the purpose of the Bill and has drawn attention to the very real hardship that can arise in particular cases under the present law. Cases do from time to time come to the attention of the Home Office where men and women related by marriage wish to marry, often in circumstances where little or no harm would seem to result from their doing so, but are prevented from marrying by the present law. I certainly sympathise, and join other noble Lords in doing so, with the hardship that can be caused in such circumstances, especially where there are children involved who would be legitimised by marriage. As my noble friend has said, marriage in those cases would serve to strengthen rather than diminish the existing de facto family relationship. As the Long Title of the Bill states, this change in the law would
"enable a person to marry any kin of a former spouse, or a former spouse of any kin".
So there would no longer remain any prohibitions on marriage by reason of a relationship of affinity only. When the Law Commission, in their report on nullity of marriage published in 1970, reviewed the existing prohibitions, they found, they aid, no evidence that public opinion in England and Wales favoured, an alteration in the law. The question of the Law Commission is one of those which has been raised in the debate and reference to it was made by, among others, the right reverend Prelate the Bishop of London, and perhaps I should interpose a few additional observations on this point.
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It has been suggested by some noble Lords that the Law Commission might be asked to consider the proposals contained in the Bill. As I said, the Law Commission looked at this in 1970 in the context of nullity of marriage and the evidence available to them at that time suggested that public opinion did not desire a revision of the existing prohibited degrees. I am bound to add that the Government have not seen any sign of any significant shift in opinion since then. However, one is bound to add that the presence or absence of evidence is itself open to more than one interpretation when considering these matters, and that is something we must bear very firmly in mind. Moreover, the Law Commission is a body of lawyers and the question posed by this Bill seems to me to be one of principle which raises not merely legal issues but religious, moral and social issues too. I am very doubtful therefore whether it is a matter which we should invite the Law Commission to consider or to consider again.
There is of course the alternative—this has been mentioned by some noble Lords including the right reverend Prelate the Bishop of London—of setting up a more broadly based ad hoc committee, but I am bound to say that I wonder (this was mentioned by my noble friend Lord McGregor of Durris) whether such a committee would be any better equipped to express a view on the principles involved here than is this very House in the light of the arguments adduced in this debate. I do not think it unreasonable that noble Lords here should decide today whether or not they endorse the principles of the Bill.
I am bound to say that, in spite of the few cases that come to notice, to which I have referred, the Government have at present no real evidence of any general demand for a change in the law in this respect, but one bears in mind the dangers involved in considering and weighing that point about evidence, so we must approach this whole question with some caution involving, as it does, a proposal to alter the law in this way. In particular, we must consider whether there are other cases of a different kind from those cited by my noble friend but perhaps involving a much greater number of people in which a change in the law might do harm.
As I understand it, the historical basis for the present prohibition lies in the view

1169
that husband and wife are to be regarded as one flesh, so that relationship by marriage is equivalent to relationship by blood. Although there may be fewer people today who accept that principle in its most literal sense, I think many would still support the idea that a marriage does at the least create a special relationship—indeed, a new kind of family relationship—between members of the two spouses' families.
My noble friend has particularly in mind the possibility of marriage between step-parent and step-child, and we have heard the example of a case where a wife dies leaving her husband with small children of their marriage and a grown-up step-daughter. In the course of time, the step-daughter takes on the roles of both mother and wife, but the couple are prevented, under the present law, from legalising their relationship. This may indeed be a case which attracts considerable sympathy; but some people may also ask whether the relationship would be quite so acceptable if the step-daughter had been much younger when her mother remarried and her stepfather had therefore been standing in loco parentis to her. This is a very real problem which we, with respect, are bound to consider. It would, I am sure, be generally agreed that where any man or woman becomes the step-parent of a young child, and in effect takes on the role of a parent towards that child, the very possibility of a future marriage would be entirely at variance with the character of the relationship that ought to be established between them. There does not seem to be any way of excluding such cases from the provisions of the Bill without also excluding the sort of case of real hardship to which my noble friend referred.
If noble Lords decide that the Bill should be given a Second Reading, I think it only right to point out that the Government would wish to see one or two technical Amendments made. We feel that the Bill does not, for example, deal adequately with the often complicated situations that arise where one partner to a marriage is domiciled in a country whose marriage laws would not permit a marriage in those cases, so it would need amending there. It might also need amendment in relation to couples who are domiciled in this country
1170
but celebrate their marriage abroad. I should also mention that, on matters of consanguinity and affinity, it has hitherto been thought desirable that the marriage law of England and Wales and of Scotland should in substance be the same, so, if the House thinks the principle of the Bill should be accepted in relation to England and Wales, we ought at a subsequent stage to consider whether it should be extended to Scotland as well.
I hope this brief intervention may be of some assistance to noble Lords in coming to a decision on whether or not the enactment of this Bill would in principle constitute an improvement in our law. There are real human questions on both sides of this argument. Your Lordships' House is, if I may say so, particularly well placed to consider matters of this kind.
6.20 p.m.
Baroness WOOTTON of ABINGER: My Lords, I am most grateful to all noble Lords who have taken part in the debate and shown such thoughtful perception of the issues involved, and I am particularly grateful for suggestions that have been made for the improvement or removal of difficulties. I shall give very great consideration to what has been said in the debate. First I want to comment on some of the observations of my noble friend Lord Boston of Faversham, which are of special importance in view of the position which he holds in relation to the Government. Like many other noble Lords, he referred to the distinction between cases where a step-parent has acted in loco parentis and cases where the step-child is much older and that situation does not arise. That is a very important distinction, but there is a way of getting around the difficulty, and it is a way that ought to be widely used and adopted, though it cannot be made obligatory". It is that if a young child is brought into a family, and there are subsequently children of the new marriage not far separated in age from the step-child, it is quite possible and not uncommon for the parents immediately jointly to adopt that child. Thereafter, none of the questions about later marriage can possibly arise, because it would be as incestuous to have intercourse with the adopted child as it would be with the natural child. That seems to me to solve that point. I know that not everyone would do this, but these

1171
matters could be made widely known, and I believe that most people would be glad to do it if they understood the position about it.
My noble friend Lord Soper said that he has been a parson for 50 years. For very nearly that period of time I have been a magistrate in the county of London, and I have been the chairman of a juvenile court for a very large part of the period. I have seen a great many cases involving children in one kind of trouble or another. I have seen a great many cases of incestuous relations between parents and children. As it happens, I have never seen a single case of a relationship of that kind between a father and a stepdaughter, or vice versa involving a step-son. That may be coincidental, but I reckon that I have seen about five thousand cases of one kind or another involving juveniles, though they have not all been sexual cases.
There are risks in everything, and our task tonight is to balance the risks against the evils of which we know. I have heard one set of risks discussed over and over again. I remember as a child—the noble Lord, Lord Robbins, mentioned this point—hearing the discussions about the deceased wife's sister. I was very puzzled by what was involved, but I realised that it was something of immense importance. When it came to the repetition of those arguments about risk in the later extensions of the 1931 Act, I realised what the original arguments had been about. They are now being repeated again. In all these years I have not seen disastrous consequences follow from those risks. Perhaps there have been occasional improper things, but there have not been disastrous social consequences.
My Bill has nothing whatever to do with the very unseemly position envisaged by the noble Lord, Lord Hunt of Fawley; namely, that a mother might be in the position of having to cite her daughter as a co-respondent in a divorce case. If that occurs, it is because the step-father has had improper relations—he has committed adultery with the step-daughter—and he will do that whether or not there is the possibility of marriage. The point is quite irrelevant to the question of ultimate marriage, although as I think I said in my original speech it may be
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more likely that he will do that if he cannot marry her than if he can marry her.
The other risks have been very greatly under-estimated. I am certainly not one who wishes to destroy close and happy family relationships; but the present law does that. It makes people live lies. People who are put in this position suffer very much from having to live lies, sometimes in practical ways with regard to such matters as passports, and sometimes simply because they have to pass themselves off as man and wife when they are not.
Very little has been said about the direct inducement to what is sometimes called "living in sin" that the present law causes. Those involved cannot marry. If they do not happen to have the exceptional relationship referred to, they are perfectly free to marry. They are not blood related, they have no other marital ties, and they wish to marry. What do they do? Obviously they say, "We will behave as though we were married". The present law is a direct attack upon family life in that way. It is not least for that reason that I wish to alter it.
It is suggested by the right reverend Prelate the Bishop of London and others, who would like to see yet another inquiry, that we proceed cautiously. I was relieved to hear my noble friend Lord Boston of Faversham suggest that the Law Commission, who looked at this matter rather cursorily in 1970, and who are experts in law rather than in public opinion, might not be the appropriate body to look at the question again now. We have looked at it again and again, and every time that there has been an inquiry the prohibited degrees have been extended a little. Now there are just these few remaining affinities which are still prohibited, and it is not necessary that we should again go through all the motions of having yet another committee or commission to look at them.
Therefore, I hope that your Lordships will give a Second Reading to the Bill tonight. A great many noble Lords have told me that they are in favour of the Bill in principle, which is what a Second Reading is intended for. Noble Lords may not be in favour of the Bill in every

1173
detail, but if they are in favour of it in principle, that is an argument why it should be supported on Second Reading now. We have been talking rather as if in this restricted Assembly we were in a position to make a law which would come into force tomorrow, whereas if we approve the Bill in principle, it has to go through further stages in this House, and it also has to be subject to the wisdom of the other House where it will go through the same stages. What we are concerned with now is starting it upon a course in which all kinds of minds and experiences will be brought to bear upon it, and perhaps issues which we have not thought of will be raised. I should like to see it floated upon its course, so that it may proceed as I hope, ultimately, though possibly in a somewhat revised form, to a final conclusion.
We all think up safeguards. The noble Lord, Lord Hunt of Fawley, spoke of the safeguard that people should not be allowed to marry in the circumstances in question until they are a little older. All these safeguards are inducements to carry on as though one were married until the time comes when one is allowed to be. It is very difficult to think up safeguards which are not open to the criticism that they are encouraging the very thing which upholders of legitimate marriage wish to stop. I hope that your Lordships will give a Second Reading to the Bill tonight.
6.28 p.m.
On Question, Whether the Bill shall be now read 2a?
Their Lordships divided: Contents, 58; Not-Contents, 43.

CONTENTS

Allen of Abbeydale, L.

Gainford, L.

Pitt of Hampstead, L.

Amherst, E.

Greenway, L.

Redcliffe-Maud, L.

Ampthill, L.

Greenwood of Rossendale, L.

Ritchie-Calder, L.

Baker, L.

Hale, L.

Robbins, L.

Birkett, L.

Hamnett, L.

Rochdale, V.

Blease, L.

Hanworth, V.

Sefton of Garston, L.

Bledisloe, V.

Harris of Greenwich, L.

Segal, L.

Brockway, L.

Houghton of Sowerby, L.

Skelmersdale, L.

Brooke of Cumnor, L.

Jacques, L.

Soper, L.

Brooke of Ystradfellte, B.

Kilbracken, L.

Southwark, Bp.

Chitnis, L.

Kilmarnock, L.

Strathclyde, L.

Collison, L.

Kirkhill, L.

Taylor of Blackburn, L.

Craigavon, V.

Lee of Newton, L.

Taylor of Mansfield, L.

Craighton, L.

Lloyd of Hampstead, L.

Ullswater, V.

Cranbrook, E.

McGregor of Durris, L. [Teller.]

White, B.

Darling of Hillsborough, L.

McNair, L.

Willis, L.

Davies of Leek, L.

Mancroft, L.

Wootton of Abinger, B. [Teller.]

Dowding, L.

Monson, L.

Wynne-Jones, L.

Drumalbyn, L.

Noel-Baker, L.

Erroll, E.

Northesk, E.

NOT-CONTENTS

Abinger, L.

Halsbury, E.

Nunburnholme, L.

Barrington, V.

Hampton, L.

Rathcreedan, L.

Cathcart, E.

Hornsby-Smith, B.

Robertson of Oakridge, L. [Teller.]

Colville of Culross, V.

Hunt of Fawley, L.

Cullen of Ashbourne, L.

Hylton-Foster, B.

Rochester, Bp.

de Clifford, L.

Lauderdale, E. [Teller.]

St. Davids, V.

Elles, B.

Listowel, E.

Salisbury, M.

Ferrers, E.

London, Bp.

Sandys, L.

Fisher of Camden, L.

Long, V.

Shinwell, L.

Fortescue, E.

Lyell, L.

Somers, L.

Geddes, L.

Monckton of Brenchley, V.

Strathspey, L.

Glasgow, E.

Morris, L.

Sudeley, L.

Gray, L.

Newall, L.

Trefgarne, L.

Hailsham of Saint Marylebone, L.

Northchurch, B.

Ward of North Tyneside, B.

Nugent of Guildford, L.

Young, B.

Resolved in the affirmative: Bill read 2a, and committed to a Committee of the Whole House.

CONSERVATION OF WILD CREATURES AND WILD PLANTS (AMENDMENT) BILL [H.L.]
6.37 p.m.
Lord SKELMERSDALE: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, that the House do now resolve itself into Committee.—(Lord Skelmersdale.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD GREENWOOD of ROSSENDALE in the Chair.]
Clause 1 [Protected wild creatures to be known as endangered wild creatures]:
Lord SKELMERSDALE Lord SKELMERSDALE moved Amendment No. 1:
Page 1, line 7, leave out ("there shall be substituted the word "endangered" ") and insert ("wherever it occurs").
The noble Lord said: I appreciate that, with 36 Amendments, both numbered and unnumbered, in my name, I may well be laying myself open to the charge of having put my name indelibly upon somebody else's Bill, because, of course, this is the Bill as originally proposed last Session by my late noble friend Lord Cranbrook, as I said at length on Second Reading. In fact, I have not gone as far as this, but I have followed suggestions of the Government draftsman, as put to me by officials of the Department of the noble Baroness, Lady Stedman. The Amendments in my name have two main objects: firstly, to arrange the proposed Amendments more effectively; and, secondly, to avoid the repetition of material in the Conservation of Wild Creatures and Wild Plants Act 1975, which hereinafter I shall refer to as "the principal Act". There is, I am afraid to say, plenty of that in the Bill before your Lordships for consideration this evening.
There are also a few changes of substance, which I shall explain in detail when we get to them; but I should explain that, as I have just said, I have had countless meetings with the noble Baroness's Department, mostly, I must confess, with one particular officer, without whose help I would not be in a position to ask your
1176
Lordships' permission to improve the Bill to the extent necessary to get it in an acceptable form for the Statute Book. I have also had a meeting with the Nature Conservancy Council, and several with the amateur naturalists' umbrella organisation, the Society for the Promotion of Nature Conservation. Officers of all these bodies agree that the Amendments I am proposing will make the Bill substantially more acceptable, and, without committing themselves finally at this stage, have given me to understand that the Bill as I propose to amend it will fit the purpose for which it was originally designed, and that they will now agree with that purpose.
The main objective of my Amendment to Clause 1 is to bring together into one clause all the Amendments to the 1975 Act which are necessary to create the concept of an endangered wild creature. I am told that it is necessary to do this to achieve a distinction between creatures already protected by that Act and the new category of vulnerable wild creatures introduced by this Bill. Amendment No. 1 is a drafting Amendment. Thus, there is no parallel Amendment in the keeling Schedule to the Bill (which we shall get on to later) and which sets out the effects of this Bill on the principal Act. It is printed at the end of this Bill on page 7 onwards. I bee to move Amendment No. 1.
Baroness STEDMAN: I think that to save time over the later Amendments, it might be convenient if I were to reiterate what the noble Lord, Lord Skelmersdale, has said. He has been extremely cooperative about this Bill and we are grateful. So far as we are concerned in the Department, my officials are now satisfied that the Bill is in a fit state—or it will be so when we have finished with it tonight—to pass on to another place. We hope to give it a fair wind. For the most part, with one or two minor observations, the Government will raise no objections to the Amendments which are down.
On Question, Amendment agreed to.
Lord SKELMERSDALE Lord SKELMERSDALE moved Amendment No. 2:
Page 1, line 8, leave out from ("the") to the end of line 9 and insert ("definitions of" protected plant "and" protected wild creature "in section 15(1), there shall be substituted the word "endangered".
(2) In section 10(d) of the principal Act after the words "creature or" there shall be inserted the word "any".
(3) In section 15(1) of the principal Act—

(a) after the definition of "authorised person" there shall be inserted the following definition—

"'endangered wild creature' means a wild creature specified in Schedule 1 to this Act found living wild, and includes the eggs, larvae or pupae of any such creature;"; and

(b) the definition of "protected wild creature "shall be omitted.").

The noble Lord said: Like so many of these Amendments which have been introduced originally at the instigation of the draftsman, this covers various points. I hope to make them as clearly as possible; but if I do not do so, please interrupt me. The first paragraph of this Amendment is a purely drafting one. It is already covered in a different form in the Bill. Subsection (2) of the Amendment is a clarification of the existing Clause 8(3)(a) which it replaces; and it is paralleled by Amendment No. 27 in the Schedule. Subsection (3)(a) of the Amendment is a tidier place than that currently occupied by Clause 13 of the Bill which it now replaces and subsection (3)(b) is needed because the word "protected" disappears throughout the Bill and it is replaced where appropriate by the words "endangered" and "vulnerable". I beg to move.
On Question, Amendment agreed to.
Clause 1, as amended, agreed to.
Clause 2 [Disturbance of mammals.]:
Lord CRAIGTON Lord CRAIGTON had given Notice of his intention to move Amendment No. 3:
Page 1, line 15, after ("mammal") insert ("amphibian or reptile").
The noble Lord said: I echo what the noble Baroness, Lady Stedman, has said. I think that my noble friend has done a really magnificent job and, as I was the only person in this House to speak against this Bill on Second Reading, it is, I feel, proper for me to suggest a few minor Amendments. My Amendment arises for this reason. Under the principal 1975 Act it is illegal to kill, injure or take one of the protected wild creatures listed in Schedule I to that main Act. In this amending Bill my noble friend extends the protection from killing, injuring or taking, to "disturbance". But
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he limits the disturbance to the disturbance of mammals. Schedule I to the 1975 Act includes three animals: the sand lizard and smooth snake (which are reptiles) and the natterjack toad, which is an amphibian. All these three rare and endangered species can hardly be said to hibernate, but they go into a sort of hibernation when in winter their body metabolism slows down. During that period, for their own safety and survival, they should be left undisturbed. Having said these few words, I do not propose to move the Amendment.
On Question, Whether Clause 2 shall stand part of the Bill?
Lord SKELMERSDALE: I have been pre-empted by the happenings of the last few minutes. I was going to ask my noble friend if he would withdraw his Amendment. In the event, what he wants is an Amendment to one of my later Amendments. We will get there eventually at the next stage of the Bill. I should like to ask your Lordships' permission to withdraw Clause 2 from the Bill in favour of Amendment No. 7 (or, at least, part of it) on the Marshalled List.
Having in Clause 1, as amended, disposed completely of the endangered category I am advised that the next clause in the Bill should cover the vulnerable category which the Bill seeks to introduce. The existing Clause 2 is dealing with a completely different subject and it should therefore be after the new Clause I am proposing in Amendment No. 7—which is a neater and tidier way of saying what is in Clause 2 at the moment. It also avoids a verbal mistake. The object of the old clause was to protect a nest whether occupied or not. This was unclear in the original drafting. I am advised that the new wording, "place which is used for shelter or protection", gets over this particular problem. Head (b) of the proposed new Clause 1A tidies up the clause to the effect that it also becomes a new offence to disturb either adults or young while they are in occupation of such a refuge or nest. I beg to move.
The Earl of CRANBROOK: May I intervene to point out that the Amendment proposed by the noble Lord, Lord Craigton, is applicable to those species

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which are at present on the proposed Schedule of endangered animals. If this Bill becomes law, that proposed Schedule will potentially contain a larger range of species. Not only amphibians and reptiles go into a form of torpor in winter but also snails and other invertebrates may be found in the same state. Snails are particularly vulnerable to being disturbed from the place where they are hidden. They are sealed up in their state of hibernation and, if disturbed, they are vulnerable to predation from birds and so on. If, at a later stage, an Amendment on the lines of that suggested by the noble Lord, Lord Craigton, is adopted, I think it would be simpler if the term "creature" was used because the capacity to hibernate exists in many animals which are potentially members of the Schedule.
Clause 2 disagreed to.
Clause 3 [Restriction on sale of vulnerable wild creatures]:
6.50 p.m.
Lord CRAIGTON Lord CRAIGTON moved Amendment No. 4:
Page 2, line 5, at end insert—
("(2) In section 2(2) of the principal Act for the words" or skeletons "there shall be substituted the words "skeletons, parts or derivatives".").
The noble Lord said: I shall move this Amendment very briefly. I want to add to the word "skeletons", the words "parts or derivatives". In the May 1975 Act it is illegal to barter or exchange protected creatures alive or dead, including skeletons and skins. Since then we have had some experience of the Endangered Species (Import and Export) Act 1976. We know from the workings of the very detailed Schedule 3 to that Act that it is not difficult to make goods from parts or derivatives. We do not want such goods made out of endangered or vulnerable species scheduled in the Bill that we are discussing. I refer to such goods as brooches made from butterfly wings, ornaments made from otter fur or snail shell, necklaces or ornaments on key rings. My Amendment echoes the principles of Schedule 3 to the 1976 Act in making such trade in vulnerable and endangered species illegal. I hope that my noble friend Lord Skelmersdale will
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approve of my Amendment, in which case I shall withdraw it and put it down again at a later stage. I beg to move.
Lord SKELMERSDALE: I most certainly approve of the tenor of the Amendment. Yet again, I rather think that it is not in the right place, especially as it is in a clause which, again, I am going to ask the Committee to remove. Perhaps the noble Lord would like to withdraw it at this stage.
Lord CRAIGTON: May I have leave to withdraw the Amendment?
Amendment, by leave, withdrawn.
On Question, Whether Clause 3 shall stand part of the Bill?
Lord SKELMERSDALE: Again I am going to ask the Committee's permission to leave out Clause 3 of this Bill. I am proposing to leave it out in favour of the first part of my Amendment No. 6: in other words, subsection (2)(a), which incidentally is paralleled by Amendments Nos. 16, 17 and 18 in the Schedule. I am advised that it is far tidier to have a whole section of the Bill covering vulnerable creatures rather than to have its various parts scattered throughout the Bill as they are at the moment.
Clause 3 disagreed to.
Clause 4 [Restriction on marking or ringing]:
On Question, Whether Clause 4 shall stand part of the Bill?
Lord SKELMERSDALE: Again, I should like to ask the Committee's leave to withdraw Clause 4 for exactly the same reason as I have given. It is covered by my Amendment No. 6.
Clause 4 disagreed to.
Clause 5 [Restriction on killing etc. vulnerable wild creatures]:
On Question, Whether Clause 5 shall stand part of the Bill?
Lord SKELMERSDALE: We now have something on which I am going to have a complete volte-face. On Second

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Reading I praised one of the potential improvements which were slipped into the Bill at a late stage last year, by which I mean what is popularly referred to as the phobia clause. I shall get to that later. Let me first say what leaving out Clause 5 entails and then I shall go back to the phobia clause.
Subsection (1)(a) and paragraph (b) are, I am told, repetitious of the Act and so they are not necessary in their present form. In any case, I propose to repeat them by my new Amendment No. 6; that is to say, the word "vulnerable" will be added to the word "endangered "which has been inserted by the removal of the word "protected" by Clause 1 as amended already. Sub-paragraph (ii) is repetitious of the Act. Paragraph (b) comes into subsection (4) of my Amendment No. 6. Subsection (2) is replaced by paragraph (b) (2) in my Amendment No. 6 which leaves us with the phobia provision, which I have already mentioned, and the slightly doubtful paragraph (ii) which is covered, as I have just said, by part of my Amendment No. 6. I know that the Nature Conservancy Council for one are not too happy about having this in the Bill and I undertake to take this back and consider it. But since it is part of a very much larger Amendment, I should be grateful if your Lordships will allow me to have the Amendment as it is. I undertake to do something about it before the next stage.
Now, back to phobias, the proviso was inserted into the Bill last time to go some way to give protection to the man in the street who has a natural aversion to spiders, snakes, slugs and everything else that one can think of. It was so widely drawn that it drove a coach and horses right through the Bill and completely negatived the whole operation. It was quite unintentionally what I believe is popularly known as a wrecking Amendment. It had all the best intentions behind it. The word "phobia" could not be used because I understand that this, carried to its logical conclusion, sends people absolutely rigid and, by definition, it could not possibly cause them to kill invertebrates or any other creature.
Omitting this clause does not give the man in the street the protection which I, for one, should like to see in the Bill. I have had many sleepless nights over this
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particular matter. If any members of the Committee can suggest an improvement, I shall certainly be truly grateful even if it does nothing more than improve my sleeping habits. In the main, however, where the person who suffers is an authorised person—in other words, a landowner or a home owner—he would have a defence against injuring or killing any vulnerable creature by the provisions in my Amendment No. 6. But, as I say, this is the only piece which gives me any cause for regret. I beg to move.
Lord KILBRACKEN: May I clarify one point? Where does this clause or subsection about phobias appear?
Lord SKELMERSDALE: On page 2 of the Bill, the proviso of the new section states:
"it shall not be an offence against this section to kill or injure an invertebrate wild creature …".
This is the point which gives cause for alarm.
Lord KILBRACKEN: There is no reference to phobias.
Lord SKELMERSDALE: No, I did not say there was a direct reference to phobias. I said it was becoming popularly known as the phobia clause.
Clause 5 disagreed to.
Clause 6 [Schedule of vulnerable wild creatures]:
7 p.m.
Lord SKELMERSDALE Lord SKELMERSDALE moved Amendment No. 5:
>Page 3, line 1, leave out from ("Schedule") to end of line 3 and insert ("1 to the principal Act there shall be inserted the following Schedule:—

SCHEDULE 1A")
The noble Lord said: This again is a drafting Amendment and is repeated by Amendment No. 33 in the Schedule. The object of the exercise is to avoid a rather awkward sandwich in the Schedules to the Bill which, as printed, deal with endangered creatures, then plants and then vulnerable creatures. I am advised that it is far easier to have the first two categories of creatures followed by plants. As a "plants man", I am not sure whether

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I approve of that: nevertheless I entirely accept it. I beg to move.
On Question, Amendment agreed to.
Lord SKELMERSDALE Lord SKELMERSDALE moved Amendment No. 6:
Page 3, line 30, at end insert—
("(2) Section 1 of the principal Act shall be renumbered as subsection (1) of that section and—

(a) in that subsection as so renumbered after the word "endangered", wherever it occurs, there shall be inserted the words "or vulnerable"; and

(b) after that subsection as so renumbered there shall be inserted the following subsection—

"(2) An authorised person shall not be guilty of an offence against this section by reason only of the taking or attempted taking, for the purpose of identification or marking, of any vulnerable wild creature:

Provided that any vulnerable wild creature so taken is identified or marked without unreasonable delay and is released uninjured on the spot where it was taken immediately after the identification or marking."

(3) In section 2(1) of the principal Act after the words "Schedule 1" there shall be inserted the words "or Schedule 1A".
(4) In section 3 of the principal Act after the word "endangered", in the second place where it occurs, there shall be inserted the words "or vulnerable".
(5) In sections 6, 8, 10, 11 of the principal Act and in the definition of "authorised person" in section 15(1) of that Act after the word "endangered", wherever it occurs, there shall be inserted the words "or vulnerable".
(6) In section 15(1) of the principal Act after the definition of "uproot" there shall be inserted the following definition—
"' vulnerable wild creature ' means a wild creature specified in Schedule 1A to this Act found living wild, and includes the eggs, larvae or pupae of any such wild creature." ").
The noble Lord said: Since I started on these Amendments, I seem to have been referring almost ad lib to my Amendment No. 6. Now that we have reached it a last, I shall try to explain in detail what it actually achieves. I have spoken to all of it with the exception of subsections (5) and (6) on page 3 of the Marshalled List. We have dealt with paragraph (a) by the Amendments to the first clause, and we have dealt with (b) by leaving out Clause 2. We have just dealt with subsection (3) by Amendment No. 5. Subsection (4) starts the process of giving rise to a "vulnerable" category, which is
1184
continued in subsection (5). That again, as I say, is purely concerned with drafting. Subsection (6) replaces the existing Clause 13(1) and completes the process of putting all the cases of vulnerability into one clause. I beg to move.
The Earl of CRANBROOK: May I niggle zoologically and just draw the Committee's attention to the fact that this Bill has attempted to be zoologically accurate by listing eggs, larvae and pupae. It is a zoological fact, which the departmental pundits will confirm, that grasshoppers and crickets go through a nymphal stage and therefore have neither larvae nor pupae. I think, therefore, that at some stage, if we are to be zoologically precise all the way through the word, "nymphs" ought to be introduced.
Baroness STEDMAN: I am sure the noble Lord, Lord Skelmersdale, will take note of those comments. I should like only to refer to the comments he made earlier when he was going through this long group of Amendments. He said that, over the question of marking, the Nature Conservancy Council had expressed concern as to whether there was some inconsistency in the Bill as it stands. They would prefer the marking by the members of the public to be subject to licence by the Nature Conservancy Council, as in the case of the endangered category. The noble Lord has said he will look at this before the next stage, and we will raise no objections.
Lord SKELMERSDALE: I am grateful to my noble friend and to the noble Baroness. I shall most certainly read Hansard very carefully after today, not least to discover what I myself have actually said, because I feel I am perhaps making rather a mouthful of it! But I am certainly sensible of the fact that the word "nymphs" should be included.
On Question, Amendment agreed to.
On Question, Whether Clause 6, as amended, shall stand part of the Bill?
Viscount SIMON: I do not think I have ever been through the Committee stage of a Bill which was so difficult: I commend the noble Lord on his handling of it. I have tried to understand the two Amendments Nos. 5 and 6 as related to Clause 6. It seems to me that this long

1185
list of creatures under the heading of Schedule 3, except for the heading, is still in Clause 6: is that right?
Lord SKELMERSDALE: Yes.
Viscount SIMON: In that case, I should like to ask the noble Lord who is in charge of the Bill one question, of which I have given him notice. I was a little surprised, and so were some of my lady friends, to find among the species we were seeking to protect something called the Barberry Carpet moth. Unless its name belies its characteristics, I wonder whether it is a moth which consumes carpets and, if so, whether we are wise to give it this "endangered" qualification which will seek to ensure its survival. In any case, I would say that if anybody saw a moth eating his carpet I am afraid he would stamp on it first and find out later whether or not it was the Barberry Carpet moth. I wonder whether the noble Lord can help me?
Lord SKELMERSDALE: I am happy to relieve the noble Viscount's mind. The Barberry Carpet Moth is one which some people would have us believe looks a little like a Persian carpet and it lives on the barberry plant. The barberry plant is being removed at a rate of knots—not least, I should say, by the noble Baroness' Department in one or two of its operations. For that reason, if for no other, it needs protection under this Bill. Incidentally, should any moth shown in one of these Schedules be found to be eating a carpet, the householder would be an authorised person and would be quite at liberty to stamp on it!
Clause 6, as amended, agreed to.
Lord SKELMERSDALE Lord SKELMERSDALE moved Amendment No. 7:
After Clause 6, insert the following new clause:
Disturbance of certain wild creatures
(". After section 1 of the principal Act there shall be inserted the following section—
"Disturbance of certain wild creatures.
1A.—(1) If save as may be permitted by or under this Act any Person—

a) wilfully damages or destroys any structure or place which is used for shelter or protection by an endangered or vulnerable wild creature being a mammal; or

(b) wilfully disturbs any such creature while it is in occupation of any structure or place which is so used,

he shall be guilty of an offence.
(2) An authorised person shall not be guilty of an offence against this section by reason only of anything done—

(a) within a dwelling-house; or

(b) as an incidental result of any operation which was carried out in accordance with good agricultural or forestry practice."")

The noble Lord said: The first part of this Amendment, in other words, (1), I spoke to at the time when I asked your Lordships to leave out Clause 2. The Second part of the Amendment is also in Clause 2, but is far better drafted than we managed to achieve before. I beg to move.
On Question, Amendment agreed to.
Lord SKELMERSDALE Lord SKELMERSDALE moved Amendment No. 8:
After Clause 6, insert the following new clause:
Variation of Schedules
(".—(1) For section 7 of the principal Act there shall be substituted the following section—
"Variation of Schedules.
7.—(1) Subject to the provisions of this section, the Secretary of State may by order—

(a) add any wild creature to, or remove any wild creature from, Schedule 1 or Schedule 1A to this Act; or

(b) add any plant to, or remove any plant from, Schedule 2 to this Act.

(2) The Secretary of State shall not make an order under subsection (1) of this section except—

(a) in accordance with advice given by the Nature Conservancy Council under section 12(1) of this Act and;

(b) after consultation with such bodies appearing to him to be representative of local authorities as he considers appropriate and such other bodies or persons as he thinks fit;

and the Secretary of State shall send to any body or person consulted under paragraph (b) above a copy of the Council's advice and of the statement of their reasons for giving that advice.
(3) An order made under subsection (1) of this section shall not remove a wild creature from Schedule 1 to this Act without adding it to Schedule 1A to this Act.
(4) An order made under subsection (1) of this section may apply either generally or in relation to particular provisions of this Act, particular areas of Great Britain, particular categories of the wold creatures or plants in question or particular times

1187
of the year; and an order so made may make different provision for different circumstances."
(2) Section 14(2) of the principal Act, which is superseded by subsection (1) above, shall be omitted.").
The noble Lord said: This is another tidying-up operation, and I am glad to be able to tell you that it replaces no fewer than two of the old clauses and part of a third. Subsection (4) replaces Clause 11 and puts the duty on to the Secretary of State rather than on to the Nature Conservancy Council. The Secretary of State is in any case advised by the Nature Conservancy Council although, under the Bill as amended, he does not necessarily have to accept that advice. So this is the reason why it is better to leave this particular provision to the Secretary of State rather than to make it a duty placed upon the Nature Conservancy Council. The rest of this Amendment replaces Clauses 9 and 10. The wording is almost exactly the same as those two clauses. I beg to move.
Baroness STEDMAN: May I add to what the noble Lord has said, and say that this Amendment tidies up both the Bill and the Act, in some respects, and controls the order-making processes. May I also remind the House that in the debate on the earlier Bill I gave an undertaking from this Box that we would arrange for a Parliamentary Question to be asked, when there was an availability of statements by the Nature Conservancy Council, and that we would make those statements available in the Library. That, of course, still applies.
On Question, Amendment agreed to.
Clause 7 [Forfeitures]:
7.10 p.m.
Lord SKELMERSDALE Lord SKELMERSDALE moved Amendment No. 9:
Page 4, line 2, leave out from ("following ") to end of line 12 and insert ("subsection—
"(2) The court by which any person is convicted of an offence under this Act may order the forfeiture of—

(a) any wild creature or plant in respect of which the offence was committed; and

(b) any implement which was used for committing the offence;
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and any creature or plant so forfeited shall be dealt with as the Nature Conservancy Council may direct." ").

The noble Lord said: In this Chamber at some stage last year, my late noble friend Lord Cranbrook and I had a prolonged semantic argument, with the noble Baroness coming in and supporting the two of us at moments, and this is one of the points on which she did pre cisely that. Amendment No. 9 replaces Section 7 in the principal Act, which your Lordships will find in the keeling Schedule. It is a very much tidier way of getting at exactly the same idea. I am sorry for the delay, but—
Baroness STEDMAN: May I come to the assistance of the noble Lord, and say that this is another tidying-up operation in the Bill which, as your Lordships will have gathered by this time, has been almost completely redrafted. It enables the Nature Conservancy Council to decide how to deal with forfeited creatures, which is one of the points at issue on the last occasion.
Lord SKELMERSDALE: I am very grateful to the noble Baroness. She and I, between us, beg to move.
On Question, Amendment agreed to.
Lord SKELMERSDALE Lord SKELMERSDALE moved Amendment No. 10:
Page 4, line 12, at end insert—
("(3) In section 10(d) of the principal Act the words "or restored" shall be omitted.").
The noble Lord said: These words are not now needed, because of the complete redrafting in the last Amendment of Section 7 of the principal Act. I beg to move.
On Question, Amendment agreed to.
Clause 7, as amended, agreed to.
Clause 8 [Consequential amendments of principal Act]:
On Question, Whether Clause 8 shall stand part of the Bill?
Lord SKELMERSDALE: Again, for drafting reasons, I shall ask your Lordships to leave out Clause 8 of this Bill. Subsection (1) of the clause has already

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been covered by Amendment No. 9, to which your Lordships have agreed; subsection (2) has already been covered by subsection (5) in Amendment No. 6; subsection (3)(a)has already been covered by subsection (2) in Amendment No. 2, and subsection (3)(b) has already been covered by the last Amendment, No. 10.
Clause 8 disagreed to.
Clause 9 [Schedules to be altered only in accordance with Section 12 of principal Act]:
On Question, Whether Clause 9 shall stand part of the Bill?
Lord SKELMERSDALE: This clause was pre-empted by my Amendment No. 9, which completely replaced Section 7 of the principal Act. So that the Amendments to this section are not now needed.
Clause 9 disagreed to.
Clause 10 [Removal of creatures from Schedule 1]:
On Question, Whether Clause 10 shall stand part of the Bill?
Lord SKELMERSDALE: Again, this is drafting, and was covered by subsection (3) of Amendment No. 8. Therefore, I ask your Lordships to leave out the clause.
Clause 10 disagreed to.
7.16 p.m.
Lord CRAIGTON Lord CRAIGTON moved Amendment No. 11:
After Clause 10, insert the following new clause:
("Penalties
.In section 11 of the principal Act for the words "£200" there shall be substituted the words "£500".").
The noble Lord said: This is an Amendment which, if my noble friend will accept it, I shall not have to put down again. Before the otter was added to Schedule 1 to the principal Act as an endangered species, a live otter sold for about £600. Now they are more rare and have gone up in price. Surely, it is common sense to raise the maximum fine to £500, and
1190
so make it less worthwhile to risk being found taking an otter for sale. I beg to move.
Lord MOWBRAY and STOURTON:I should like to intervene here, and say that I strongly support my noble friend Lord Craigton. I think that this figure is much more realistic.
Lord KILBRACKEN: Can the noble Lord say how much a live otter is fetching nowadays?
Lord CRAIGTON: We have been trying to find that out, but have not been able to do so. But they are now more difficult to obtain than there were before they were made an endangered species, so we presume that it is a good deal more than £600.
Lord KILBRACKEN: In that case, is the £500 a sufficient deterrent?
The Earl of LISTOWEL: I support this new clause. I am sure that the maximum penalty should be increased, but I wonder whether £500 is sufficient. We all want to protect the otter. I think we all regard the otter as the most interesting and attractive of all the animals protected under this Bill. But we are told by the noble Lord, Lord Craigton, that it used to fetch £600 and it fetches more now. That means that a poacher could very well take an otter, sell it and make a profit after he had paid the fine imposed under the Bill. Should we not be considering an even larger fine than the maximum proposed by the noble Lord, Lord Craigton?
Lord CRAIGTON: Considerable thought has been given to this Amendment, and we feel that to over-price the otter, like making the fine £1,000, would not be a wise thing to do. The figure of £500 is about right. It has not been lightly picked upon and I hope your Lordships will accept my view, and the view of my advisers, that £500 is as much as is acceptable.
Lord SKELMERSDALE: There are several points involved here. Your Lordships will perhaps have noticed that under Amendment No. 15 to Clause 14, I am proposing to insert the relevant provisions of Schedule 6 to the Criminal Law Act 1977, which "ups" the fines chargeable all across the board from £100 to £200.

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This is all very well, but it is too low and several noble Lords have spoken to this effect. But the next stage in the Home Office's ruling of linked fines is £500, and the stage above that is £1,000. If you insert £1,000, which is the obvious thing to do, you have a problem in that, as I understand from the conservation bodies, it is likely to drive up the price of a live otter on the open market, which no one wants to do. The other point is this: Although it is marginally less than the last available price for a live otter, I would suggest that £500 is not unrealistic. Not only would you have to pay the fine of £500 but also you would have to pay for your own defence and suffer the opprobrium, as I think the Home Office describe it, of your fellows—in other words, the opprobrium of the rest of the conservation and dealing fraternity. For all these reasons, I would suggest that £500 is about the right level.
Lord MISHCON: May I ask whether I am acting under a misapprehension? Is this not a maximum penalty? In other words, cannot a lower penalty be exacted?
Lord SKELMERSDALE: Yes, it can.
Lord MISHCON: If that is so, is there any harm in having a £1,000 penalty as the maximum? Obviously, no harm would be done if a lower penalty can be exacted.
Baroness STEDMAN: May I intervene at this stage to say that earlier we had some problems with the Home Office over this Amendment. As the noble Lord, Lord Skelmersdale, has just said, it would be out of line with their very recently simplified levels of fines. There was some doubt as to whether it was appropriate to try to raise the fine in this instance so soon after the new levels had been determined, particularly in view of the fact that it will still be a criminal offence. Therefore, it will act as some deterrent. And there may well be legal costs awarded, in addition to the fine, whatever it is.
Subject to various discussions we have had with the Home Office throughout the day, the Home Office have finally agreed that they would not object to the Amendment as it stands at the moment, subject to obtaining in due course an explanatory note from the appropriate division in my
1192
Department. With that assurance, I hope that noble Lords might agree to this Amendment.
Lord KILBRACKEN: May I clarify one last point? In a case where a live otter is sold and this comes to be known, I suppose that the otter would be returned to the wild state. So a person would not make a profit on the transaction if he had to pay less than what it was worth.
Lord CRAIGTON: He would not make a profit on the transaction.
On Question, Amendment agreed to.
Clause 11 [Duty of Nature Conservancy Council]:
7.22 p.m.
Lord SKELMERSDALE Lord SKELMERSDALE moved Amendment No. 12:
Page 4, line 43, leave out from beginning to ("them ") in page 5, line 45 and insert—

("(a) to add to Schedule 1 to this Act any wild creature which, in their opinion, is in danger of extinction as a British wild creature and to remove from that Schedule any wild creature which, in their opinion, is no longer so endangered;

(b) to add to Schedule 1A to this Act any wild creature which, in their opinion, is likely to become so endangered if existing casual factors continue to operate and to remove from that Schedule any wild creature which, in their opinion, is no longer likely to become so endangered; and

(c) to add to Schedule 2 to this Act any plant which, in their opinion, is in danger of extinction as a British plant or is likely to become so endangered if existing causal factors continue to operate and to remove from that Schedule any plant which, in their opinion, is no longer so endangered or likely to become so endangered.

(2) Advice may be given under subsection (1) of this section either generally or with respect to particular provisions of this Act, particular areas of Great Britain, particular categories of the wild creatures or plants in question or particular times of the year.
(3) Any advice given by the Council under subsection (1) of this section shall be accompanied by a statement of the reasons which led them to give that advice.
(4) The Council shall include any advice so given and a statement of the reasons which led ").
The noble Lord said: Amendment No. 12 is paralleled by Amendment No. 30 in the Schedule. Again it is a question of drafting. This is infinitely better than what my late noble friend and I came up

1193
with during our debates last year. Also, it replaces Clause 12, which I think noble Lords will agree is all to the good. I beg to move.
Baroness STEDMAN: I should like to take this opportunity to say that this is the clause to which the Nature Conservancy Council feel that they can give their wholehearted support, because it removes the restriction which was placed upon them by Section 12 of the Act. It requires creatures and plants to be designated as endangered or protected only if their status has been caused by actions designated as an offence under the Act. This Amendment would allow creatures and plants to be scheduled solely on the basis of their status in the wild. The definitions of an endangered or a vulnerable wild creature more accurately reflect the internationally accepted definitions. The Nature Conservancy Council give it their wholehearted approval, as does my Department.
On Question, Amendment agreed to.
Clause 11, as amended, agreed to.
Clause 12 [Amendment of Section 14 of principal Act]:
On Question, Whether Clause 12 shall stand part of the Bill?
Lord SKELMERSDALE: I spoke to this matter when I moved Amendment No. 12; that is, Clause 12 is now superseded by that Amendment. With your Lordships' permission, I beg leave to withdraw Clause 12.
Clause 12 disagreed to.
Clause 13 [Interpretation]:
On Question, Whether Clause 13 shall stand part of the Bill?
Lord SKELMERSDALE: I should like to ask for your Lordships' permission also to leave out Clause 13. The first part of Clause 13 is covered by subsection (6) of Amendment No. 6. The second part—that is subsection (2)—is included in Amendment No. 13, when we reach it. I beg to move.
Clause 13 disagreed to.
Clause 14 [Short title, citation and extent]:
Lord SKELMERSDALE Lord SKELMERSDALE moved Amendment No. 13:
Page 6, line 16, leave out from ("The") to ("and") in line 17 and insert ("principal Act ").
The noble Lord said: I must confess that this was an oversight when the revised version of the Bill was prepared. It should, of course, have followed immediately the Amendment that was made on the last occasion by the noble Lord, Lord Wigoder. I beg to move.
On Question, Amendment agreed to.
Lord SKELMERSDALE Lord SKELMERSDALE moved Amendment No. 14:
Page 6, line 18, leave out ("to") and insert ("and")
The noble Lord said: Despite the fact that on page 6 of the Bill we read that the 1975 Act and this Bill, when it becomes an Act,
"may be cited together as the Conservation of Wild Creatures and Wild Plants Act 1975 to 1978 "
and that these words have a perfectly respectable statutory history, I am advised by the draftsman—who, it seems, is having a tidying-up session—that the word "to" implies that there are more than two. In other words, the word "to" implies that there are more than two Acts involved, whereas the word "and" makes it absolutely clear that only two Acts are involved. This will help people who are making searches in libraries. I beg to move.
Viscount SIMON: Is there not a slight slip here? Surely this is going to be not a 1978 but a 1979 Act.
Baroness STEDMAN: Eventually, yes.
Lord SKELMERSDALE: I am not sure whether the date is the date when it receives the Royal Assent or whether it is the date when it started on its course in one or other of the two Houses of Parliament. However, I shall certainly look into the noble Viscount's point and deal with the matter.
On Question, Amendment agreed to.
Lord SKELMERSDALE Lord SKELMERSDALE moved Amendment No. 15:
Page 6, line 18, at end insert—
("( ) In accordance with the preceding provisions of this Act, Schedule 6 to the Criminal Law Act 1977 (which amends section 11(1) of the principal Act), the Conservation of Wild Creatures and Wild Plants (Otters) Order 1977 (which makes an addition to Schedule 1 to the principal Act) and the Transfer of Functions (Wales) (No. 1) Order 1978 (which transfers certain functions of the Minister of Agriculture, Fisheries and Food under section 8(l)(e) of the principal Act to the Secretary of State), the principal Act shall have effect as set out in the Schedule to this Act.").
The noble Lord said: I spoke in part to this Amendment when we talked about the otter. The point is that the italicised note at the beginning of the schedule will disappear when the Bill receives the Royal Assent and is printed as an Act. It is therefore necessary to incorporate it in the main body of the Bill. The Amendment recognises that the original Act has been superseded in part by various orders over the last three or four years. In the first place Schedule 6 to the Criminal Law Act 1977, which increased the fine. It might well be that this part will have to disappear when we study this between now and the Report stage, since your Lordships have agreed to the insertion of £500 rather than £200.
In other words, this part will have nothing to do with the situation that will then obtain. The Conservation of Wild Creatures and Wild Plants (Otters) Order 1977 adds the otter—I think mistakenly—to Schedule 1 to the Act. I think that when we get a Schedule 1A or a Schedule 2 or whatever it eventually becomes, probably in the interests of science that would be a better place to put it, but I am not prepared to get into that argument this evening. Nevertheless, the order was made and it should be reflected in the Bill.
Lastly, the Transfer of Functions (Wales) (No. 1) Order 1978 which transfers the functions from the Secretary of State in the Department of the Environment to the Secretary of State for Wales. I am advised that the devolution Act for Wales does not complicate this issue any further. I beg to move.
On Question, Amendment agreed to.
Clause 14, as amended, agreed to.
Schedule [Conservation of Wild Creatures and Wild Plants Act 1975 as Amended]:
7.31 p.m.
Lord SKELMERSDALE Lord SKELMERSDALE moved Amendments Nos. 16 to 18:
Page 7, line 13, after ("endangered") insert ("or vulnerable")
Page 7, line 14, after ("endangered") insert ("or vulnerable")
Page 7, line 20, after ("endangered") insert ("or vulnerable")
The noble Lord said: I have been trying to speak to all the parallel Amendments as we have gone along. I appreciate that I may have gone rather fast on some occasions, but where my Amendments are in blocks and not separated by Amendments tabled by my noble friend Lord Craigton, unless any noble Lord objects I propose to move them en bloc. I therefore beg to move Amendments Nos. 16 to 20 inclusive.
Lord KILBRACKEN: I think there is a small slip in Amendment No. 19.
The DEPUTY CHAIRMAN of COMMITTEES (Lord Nugent of Guildford): In that case I will put Amendments 16, 17 and 18 first, and then take Amendment No. 19 separately.
On Question, Amendments Nos. 16 to 18 agreed to.
Lord SKELMERSDALE Lord SKELMERSDALE moved Amendment No. 19:
Page 7, line 22, at end insert—
("(2) An authorised person shall not be guilty of an offence against this section by reason only of the taking or attempted taking, for the purpose of identification or marking, of any vulnerable wild creature:
Provided that any vulnerable wild creature so taken is identified or marked without reasonable delay and is released on the spot where it was taken immediately after the identification or marking.")
The noble Lord said: I beg to move Amendment No. 19 which is consequential on part of Amendment No. 6, which we agreed to earlier.
Lord KILBRACKEN: I should like to point out that there seems to be a mistake in that a vulnerable wild creature has to be identified or marked "without reasonable delay". Surely the noble Lord means either "without unreasonable delay" or "with reasonable delay"?
Lord MISHCON: With respect, I was about to make the same point.
Lord SKELMERSDALE: It is perfectly correct, but I suspect that the advice from the Table would be that this is in fact a printing error. It should exactly parallel that part of Amendment No. 6(a) which mentions "unreasonable delay ", and therefore it can be corrected in the reprinting and does not need amendment.
Baroness STEDMAN: I understand that this can be corrected now, if it is moved.
Lord SKELMERSDALE: I beg to move.
The DEPUTY CHAIRMAN of COMMITTEES: Page 7, line 22, at end insert the words on the Marshalled List with the manuscript Amendment making "reasonable" into "unreasonable".
On Question, Amendment agreed to.
The DEPUTY CHAIRMAN of COMMITTEES: I should explain that, if Amendment No. 20 is agreed to, I cannot call Amendment No. 21.
Lord SKELMERSDALE Lord SKELMERSDALE moved Amendment No. 20:
Page 7, line 24, leave out from ("person") to end of line 30 and insert—

("(a) wilfully damages or destroys any structure or place which is used for shelter or protection by an endangered or vulnerable wild creature being a mammal; or

(b) wilfully disturbs any such creature while it is in occupation of any structure or place which is so used,

he shall be guilty of an offence.
(2) An authorised person shall not be guilty of an offence against this section by reason only of anything done—")
The noble Lord said: This Amendment is consequential upon part of Amendment No. 7. I beg to move.
On Question, Amendment agreed to.
[Amendment No. 21 not moved.]
Lord SKELMERSDALE Lord SKELMERSDALE moved Amendment No. 22:
Page 7, line 37, leave out ("3") and insert ("1A")
The noble Lord said: Amendment No. 22 is consequential on part of Amendment No. 6. I beg to move.
On Question, Amendment agreed to.
Lord CRAIGTON Lord CRAIGTON moved Amendment No. 23:
Page 7, line 41, leave out ("or skeletons") and insert ("skeletons, parts or derivatives ")
The noble Lord said: I beg to move Amendment No. 23.
Lord SKELMERSDALE: The noble Lord, Lord Craigton, did not move this in its parallel form in the main part of the Bill, as I remember, and therefore with respect I think he should withdraw it now.
Lord CRAIGTON: I withdrew the Amendment which amended the original Bill because the noble Lord, Lord Skelmersdale, has changed the Bill around, but this Schedule is consequential and if I moved the correct Amendment to the first part my Amendment here should still stand.
Lord SKELMERSDALE: I give way to that argument. I agree to the Amendment.
On Question, Amendment agreed to.
Lord SKELMERSDALE Lord SKELMERSDALE moved Amendments Nos. 24 to 27:
Page 8, leave out lines 1 to 26.
Page 9, leave out lines 1 to 18 and insert
Variation of Schedules.
("7.—(1) Subject to the provisions of this section, the Secretary of State may by order—

(a) add any wild creature to, or remove any wild creature from, Schedule 1 or Schedule 1A to this Act; or

(b) add any plant to, or remove any plant from, Schedule 2 to this Act.

(2)The Secretary of State shall not make an order under subsection (1) of this section except—

(a) in accordance with advice given by the Nature Conservancy Council under section 12(1) of this Act; and

(b) after consultation with such bodies appearing to him to be representative of local authorities as he considers appropriate and such other bodies or persons as he thinks fit;

and the Secretary of State shall send to any body or person consulted under paragraph (b) above a copy of the Council's advice and of the statement of their reasons for giving that advice.
(3) An order made under subsection (1) of this section shall not remove a wild creature from Schedule 1 to this Act without adding it to Schedule 1A to this Act.
(4) An order made under subsection (1) of this section may apply either generally or in relation to particular provisions of this Act, particular

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areas of Great Britain, particular categories of the wild creatures or plants in question or particular times of the year; and an order so made may make different provision for different circumstances.")
Page 10, line 10, after ("in") insert ("Wales or")
Page 10, line 43, leave out ("protected") and insert ("any")
The noble Lord said: I beg to move Amendments Nos. 24 to 27. They are all consequential.
On Question, Amendments agreed to.
Lord CRAIGTON Lord CRAIGTON moved Amendment No. 28:
Page 11, line 2, leave out ("£200") and insert ("£500")
On Question, Amendment agreed to.
Lord SKELMERSDALE Lord SKELMERSDALE moved Amendments Nos. 29 to 34:
Page 11, leave out lines 10 to 19 and insert—
("(2) The court by which any person is convicted of an offence under this Act may order the forfeiture of—

(a) any wild creature or plant in respect of which the offence was committed; and

(b) any implement which was used for committing the offence;

and any creature or plant so forfeited shall be dealt with as the Nature Conservancy Council may direct.")
Page 11, line 25, leave out from beginning to ("them") in line 7 on page 12 and insert—

("(a) to add to Schedule 1 to this Act any wild creature which, in their opinion, is in danger of extinction as a British wild creature and to remove from that Schedule any wild creature which, in their opinion, is no longer so endangered;

(b) to add to Schedule 1A to this Act any wild creature which, in their pinion, is likely to become so endangered if existing causal factors continue to operate and to remove from that Schedule any wild creature which, in their opinion, is no longer likely to become so endangered; and

(c) to add to Schedule 2 to this Act any plant which, in their opinion is in danger of extinction as a British plant or is likely to become so endangered if existing causal factors continue to operate and to remove from that Schedule any plant which, in their opinion, is no longer so endangered or likely to become so endangered.

(2) Advice may be given under subsection (1) of this section either generally or with respect to particular provisions of this Act, particular areas of Great Britain, particular categories of the wild creatures or plants in question or particular times of the year.
(3) Any advice given by the Council under subsection (1) of this section shall be accompanied by a statement of the reasons which led them to give that advice.
(4) The Council shall include any advice so given and a statement of the reasons which led ")
Page 12, leave out lines 20 to 25.
Page 13, line 25, leave out ("3") and insert ("1A")
Page 14, line 11, at end insert—

SCHEDULE 1

VULNERABLE WILD CREATURES

Common name

Scientific name

INVERTEBRATES

SPIDERS

Dolomedes plantarius

BUTTERFLIES

Chequered Skipper

Carterocephalus palaemon

Heath Fritillary

Melitaea athalia

MOTHS

Black-veined

Idaea lineata

Barberry Carpet

Pareulype berberata

Essex Emerald

Thetidia smaragdaria

BEETLES

Chrysolina cerealis

DRAGONFILES

Norfolk Aeshna

Aeshna isoscles

GRASSHOPPERS AND CRICKETS

Wart-biter

Decticus verrucivorus

Field Cricket

Gryllus campestris

Mole Cricket

Gryllotalpa gryllotalpa

MOLLUSES

Glutinous snail

Myxas glutinosa

Sandbowl snail

Catinella arenaria

Carthusian snail

Monacha cartusiana

VERTEBRATES

Fish

Burbot

Lota lota.")

Page 14, line 36, leave out from beginning to end of line 16 on page 15.
The noble Lord said: In moving Amendments Nos. 29 to 34, we have finished a steeplechase which I, for one, am very relieved to have finished. I am very pleased indeed that your Lordships have been patient when it has been necessary to be patient in order to follow me and also have accepted my remarks, on the whole, without question. I can only hope that I have not been so fast that I have made a complete nonsense of this entire Committee stage. I beg to move.
Baroness STEDMAN: I am sure that before we finish this Committee stage all the Members of the House who have sat through it would like to offer their congratulations to the noble Lord, Lord Skelmersdale. He, with the help of some of my officials, has done a major redrafting

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job. Since I have been in the House I do not think that I have seen a Bill so completely turned upside down, as this one has been, and come out the sort of Bill that we can send on its path. I should like to offer the congratulations of the House to the noble Lord.
Lord CRAIGTON: I should like to support that. I have been in this House or the other place since 1950 and I have never seen such a dog's breakfast so well handled.
Lord SKELMERSDALE: I am very grateful.
On Question, Amendments agreed to.
Schedule agreed to.
House resumed: Bill reported with the Amendments.

FILMS BILL
7.40 p.m.
Lord BIRKETT: My Lords, I beg to move that this Bill be now read a second time. In moving this Second Reading, I know that your Lordships will already be aware that an exactly identical Bill went through your Lordships' House about nine months ago. Unfortunately, it went through and reached another place just at the very end of the last Session, ran into an enormous log-jam of legislation and sank. It has, therefore, been revived as a Bill in another place and what you have before you today is the identical Bill, but travelling, as it were, in a different direction. I shall, therefore, be exceedingly brief and do no more than simply remind your Lordships of the main point of this small and, I think, helpful Bill.
The Bill sets out to amend one section of the 1960 Films Act, and that particular section dealt with quota; that is to say, the obligation laid upon cinemas to show a certain proportion of, as it was in those days, British films; nowadays, of course, that obligation refers to Common Market films as well. Until 1960, the quota period was exactly one year and all matters of quota were dealt with strictly annually. It sometimes happened, therefore, that a cinema, finding itself with a
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great success on its hands which was foreign, might be obliged to take the film off in defiance of public demand simply in order to fulfil its quota. The 1960 Act helpfully put this situation right by saying that a cinema could, if it wished, make application to the Board of Trade to have its quota obligations for two years lumped together and averaged out. That was an entirely helpful and universally welcomed provision.
Unfortunately, the Act stated that this application must be made before the film was shown. Your Lordships will immediately realise that, since it was designed to cope with surprise successes, cinemas could scarcely be expected to predict in advance which films needed the protection of this section. The upshot has been that, ever since, cinemas make application in this form for every single foreign film they show, just to be on the safe side. The resulting paperwork is enormous and most of it is sheer waste. It is a waste of time for the Department of Trade, which has to go through the papers, for the Cinematograph Exhibitors' Association, which copes with this paperwork on behalf of the cinemas, and, of course, for the cinemas themselves, which have to make out the report.
The Bill before your Lordships today very simply amends this provision by saying that the application can be made not only before the film is shown but while it is being shown. It will, therefore, save an enormous amount of time and effort on everybody's part. I believe it to be a totally uncontroversial and helpful Bill. When it came before your Lordships before, it was, I believe, warmly received. I hope it will again be warmly received and I commend it to your Lordships. I beg to move.
Moved, That the Bill be now read 2a.—(Lord Birkett.)
7.43 p.m.
Lord REDESDALE: My Lords, I think we should all thank the noble Lord, Lord Birkett, not only for putting the case so very clearly but also for tenaciously bringing back the Bill and seeing it through a second time in this House. I noticed that he laid great emphasis on saving time. The last time he spoke for six minutes and this time he spoke for three minutes, so that shows a net saving of 50 per cent.

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I should like only to say that from these Benches we welcome the Bill wholeheartedly. It is a great pity that it got lost last time in the Commons, and I hope that it will now pass through this House very quickly. I am sorry to repeat myself, but the point I raised last time was that, at the most, you could expect only 30 per cent. of films to be runaway successes; in fact, it is far lower than that. On this basis, the Bill should save 70 per cent. of the time spent on applications, which is quite considerable. Therefore, I welcome this Bill and wish it a speedy passage.
Lord JACQUES: My Lords, as the noble Lord, Lord Birkett, has said, this Bill will avoid unnecessary applications and will, therefore, save time on the part of all concerned. It continues to have the support of the Government and of all interested parties. I therefore strongly commend it to the House.
Lord BIRKETT: My Lords, I am most obliged to both noble Lords who have spoken, and would again commend the Bill to your Lordships.
Lord STONE: My Lords, before we conclude, may we put this into the Guinness Book of Records?
On Question, Bill read 2a, and committed to a Committee of the Whole House.

DEER BILL [H.L.]
7.46 p.m.
Lord NORTHFIELD: My Lords, I beg to move that this Bill be now read a third time.
Moved, That the Bill be now read 3a—(Lord Northfield.)
On Question, Bill read 3a.
Schedule 2 [Prohibited Firearms and ammunition]:
Viscount THURSO Viscount THURSO moved the following Amendment:
Page 15, line 46, at end insert—
("Supplemental
10. In their application to any Muntjac deer or Chinese Water deer—

(a) paragraph 1 above shall have effect as if there were added at the end the words "of less calibre than 12 bore"; and

(b) paragraph 7 above shall have effect as if there were added at the end the words "other than a cartridge purporting to contain shot none of which is less than ·203 inches (5·16 millimetres) in diameter (that is to say size AAA or any larger size)".")

The noble Viscount said: My Lords, this Bill has indeed been unfortunate in one respect, and that is that it has always managed to come on at a very late hour in your Lordships' House. I am, however, most grateful to the Whips for bringing it on a little earlier tonight, because we shall at least get a fair chance to end the matter. Again, something else unfortunate has taken place, and I must ask the leave of the House to take my Amendment slightly differently, because there is a misprint in it. I asked the Public Bill Office to put down an Amendment similar to the one which I had down at Report but changing the shot size from BB to AAA, with the appropriate change of measurements. Unfortunately, one word also got changed in the process and this word is in paragraph 10(a), which, as the Amendment stands reads:
"paragraph 1 above shall have effect as if there were added at the end the words ' of less calibre than 12 bore '",
whereas it should have read "of less gauge than 12 bore". This is in fact a misprint, one of which I was not aware until I was already down here in your Lordships' House, and one which is unfortunate in that it reads wrongly in the context of the rest of the Bill. I am therefore advised by the Public Bill Office that I should ask leave of your Lordships' House for this Amendment to be taken as though the word "calibre" had been printed as the word "gauge".
The PARLIAMENTARY UNDERSECRETARY of STATE, DEPARTMENT of HEALTH and SOCIAL SECURITY (Lord Wells-Pestell): My Lords, it is an unusual procedure for this to happen, but it is, as the noble Viscount quite rightly says, in the hands of your Lordships to decide. If your Lordships decide that it is a reasonable thing to do, it can be done.
Viscount THURSO: My Lords, I am very grateful to your Lordships for allowing me to proceed in this manner, because it was something which I am quite sure nobody involved wished to see happen. I argued this particular Amendment at fairly considerable length at Report stage and I do not think that it would be right or necessary for me to argue it at quite the same length at this stage, because I hope that we may be approaching agreement between those with differing views upon this matter in the Bill. The point which I was trying to make, and the point which this Amendment is designed to deal with, is that there are two exotic species of deer which have escaped from deer parks or zoos or elsewhere and established themselves in the wild in various parts of England, and which are spreading. These are the muntjac and the Chinese water deer.
The Bill, which is designed to provide for a number of matters as regards deer, should also in my view be providing circumstances in which wild populations of animals like deer can be properly controlled. These particular small species of deer are normally found in woodlands and in fairly dense cover and are not to be found roaming on wide open spaces like the moors of Yorkshire, or Scotland, or somewhere like that. They are also to be found fairly close to human habitation—to villages, towns and so on. In those circumstances, to specify for the control of those deer—and the control of those deer will be necessary because there are no wolves now native in Britain—a high velocity rifle is, in my view, first unnecessary; secondly, undesirable from the point of view of the circumstances in which the deer are likely to be pursued; and, thirdly, dangerous to the general public.
I put those points at much greater length when I spoke to this Amendment on Report. I put it to the noble Lord, Lord Northfield, at that time that we were all relying upon something which had been promised during the course of debate on the Bill; namely, the provision of an interdepartmental review of suitable weaponry for the pursuit of deer. We were promised a proper and full interdepartmental review of suitable weaponry for the pursuit of different forms of deer and for the control of those deer. There are two points arising from that. First,
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there is the pursuit of deer from the point of view of the sportsman, and secondly, their control from the point of view of the people who are responsible for having these populations of deer on their ground and who are therefore responsible for keeping them at a stable level so that they do not go out and colonise other people's ground uninvited.
We are trying to get suitable weaponry for that and we have been promised an interdepartmental review. Until that takes place I put it to your Lordships that it would be unwise to do away with the shotgun altogether. I believe that to be so because of the conditions in which the deer will have to be culled and controlled. I think that the shotgun will be a better weapon for the purpose. Also, I think that it would be advisable, from the point of view of public safety, because I do not want to see immediately, and without due thought—and without interdepartmental thought—everyone with deer on their ground given the right to demand a firearms certificate for the control of those deer.
Since the Report stage I have had support for that from the National Farmers' Union, who see the force of the argument for giving people the proper tools wherewith to control deer populations so that there is no unwarranted spread of species. I have also spoken to the Red Deer Commission and have found the interesting point that the Red Deer Commission in Scotland has bought shotguns and SG wherewith to shoot red deer in woodlands, because they consider that in certain circumstances it may be desirable to use shotguns rather than rifles in woodland conditions.
Therefore, I find myself not alone, at any rate among those who have the responsibility for the management of these herds of wild deer, in believing that the retention of the shortgun at this stage, until the case is fully proved otherwise, is desirable.
The noble Lord, Lord Northfield, has added an Amendment to the Amendment standing in my name and that of the noble Lord, Lord Stanley of Alderley, which he quite fairly will, I am sure, state to your Lordships is more consistent with the other parts of the Bill, as the Bill now stands. That, I am prepared to accept.

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He has gone to some considerable lengths to meet me over this matter, and when he puts his case to your Lordships I am sure that your Lordships will agree with me that he has a case for his Amendment. Indeed, I would be going against my own argument were I to argue against accepting his Amendment to my Amendment.
My argument is really that, at the end of the day, the interdepartmental review should be wiser than both of us, and that I am prepared to accept. However, at this stage, I still feel that we should retain at any rate the right to use a shotgun with the appropriate load for these smaller type of deer, largely so as not to proliferate the right to demand firearms certificates and to use high velocity rifles in our woodlands in densely populated areas. Therefore, I can confirm to the noble Lord, Lord Northfield, that I shall, when he moves it, accept his Amendment but I hope he will also accept the spirit of mine. I beg to move.
7.58 p.m.
Lord NORTHFIELD Lord NORTHFIELD moved as an Amendment to the Amendment:
Leave out sub-paragraph (b) and insert—
("(6) paragraph 7 above shall have effect as if there were added at the end the words "other than a cartridge—

(a) containing a single non-spherical projectile weighing not less than 350 graines (22·68 grammes); or

(b) purporting to contain shot each of which is ·203 inches (5·16 millimetres) in diameter (that is to say, size AAA)".")

The noble Lord said: My Lords, as I understand the procedure of your Lordships' House I think that we now deal simply with the Amendment to the Amendment and dispose of that, and then resume a general debate on the Amendment as amended. In that case I can be very brief. I am grateful to the noble Viscount, Lord Thurso, for saying that he will accept this Amendment. The simple justification is that this is the kind of weapon and shot which we have specified in the early parts of the Bill as being able to be used, for example, by farmers protecting crops from marauding deer, and it seems sensible not to litter the Bill with all kinds of different provisions regarding different shot and so on. If we are to make an exception in the case of these particular deer, it seems sensible
1208
to use the same definitions. For that reason, and without more ado, perhaps I may simply move the Amendment to the Amendment. I beg to move.
Lord MOWBRAY and STOURTON: My Lords, we have heard the Amendment moved and we have heard the Amendment to the Amendment moved. I think that noble Lords would be well advised to accept the Amendment in the name of the noble Lord, Lord Northfield. Of course, one should add the qualifying rider that one would hope that no noble Lord or person in the country will try to add to these two types of deer. Therein lies the danger of doing this. I appreciate the point raised by the noble Lord, Lord Northfield, and I think we must emphasise that we are doing this as a very special exception.
8.1 p.m.
Lord DULVERTON: My Lords, I disagree with practically all the arguments that the noble Viscount, Lord Thurso, has adduced for his Amendment. However, I think that we must let this Bill leave this House with some consensus. I appreciate his feelings about this. Of course, I understand that the Amendment of the noble Lord, Lord Northfield, is proposed in order to keep the Bill more consistent throughout. However, knowing as I do a little, although not much—but I venture to say I have a little more first-hand knowledge than the noble Viscount possesses—about these deer, I would point out that they are not always walking about in thick cover in woods and therefore cannot be shot with rifles. Unfortunately, I have the little invaders around my own home in Gloucestershire. Certainly in the day-time they live in thick cover in the woods, but many times when I get up in the morning, or sometimes when I am walking round in the evening, I see them in the full open country. It is just as easy to deal with them with a rifle as it is to deal with the roe deer, which come out of the woods at dusk and dawn, with a rifle.
I cannot understand why the National Farmers' Union is quite so perturbed about them because of all the kinds of deer that we have recited so often in this House in connection with this Bill, I should have thought that the muntjac was, on the whole, of absolutely no concern

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to farmers. It lives mainly in the woods; it may do a little damage there—not a great deal—but it does not frequent farm crops in the normal course of events, although I have seen it in open glades, and so on.
However, as my noble friend Lord Mowbray and Stourton has just said, I am concerned that if we agree this Amendment, we must somehow assure ourselves that it will not be extended in another place to other forms of deer. I do not think we can be sure of that, and that is the worry. Although it might be acceptable to shoot muntjac deer and Chinese water deer at very close range with shotguns, it would not be acceptable so to shoot any of the larger classes of deer from roe deer upwards. Nevertheless, if it wins the goodwill of the noble Viscount for this most important Bill from a countryside point of view, I must support the Amendment and rely on the interdepartmental committee or inquiry to sort this matter out and reach some sensible judgment on the situation.
Lord STANLEY of ALDERLEY: My Lords, I should like to support this complete Amendment. As my noble friend Lord Dulverton has said, muntjac deer wandering about outside woods can always be shot—and, indeed, should be shot—with a rifle. However, a question arises when they are in woods and I must admit that I have only seen them in woods. Therefore, I must support the noble Viscount and agree that perhaps the shotgun is a better weapon.
I, too, would be very sorry to see this Amendment extended to other types of deer. I know nothing about the feelings of the National Farmers' Union on this matter, but I am sure that they would agree. If another place so decide—and I must not say what I had in mind—in their wisdom to include other species, I should be most distressed. But I think that fear is unjustified. If another place wish to lose the Bill altogether, there is nothing that we can do here. I do not think that we are putting any temptation whatever in their way. Therefore, I am glad to see that the consensus of the House so far is that this Amendment should be agreed.
On Question, Amendment to the Amendment agreed to.
Lord NORTHFIELD: My Lords, at this stage I should like to make one remark because I accept that the House is now moving towards a final decision on this very difficult matter. I have told the noble Viscount, Lord Thurso, that I do not see any blacks and whites here and that it is of marginal difference between us. However, there are matters that fill me with considerable concern. I shall repeat just two of them because it should be on the record that it is only with enormous misgivings that I accept this final amended Amendment.
The first point—and I have made it before—is that the great danger lies in the intermixing of roe deer and muntjac deer. Once we make in an Act of Parliament what in effect becomes a legitimate defence for some action, it is a very strong defence. In other words, a man can go before the magistrates having shot a roe deer and say that he was aiming at a muntjac, that the two deers mix, and are mixed in that particular part of the country. That is a great danger. He will be in a much better position to defend himself before the courts because there will be an Act which says that one cannot use a shotgun on the muntjac, and he can say "I thought I was aiming at the others". If it was not in the Act he would not have that defence. That is the point I want to make. Therefore, the possibility of a statutory defence for someone taking pot shots with a shotgun at roe deer is opened up. I cannot emphasise that strongly enough. It would not be a statutory defence if it were not in the Bill.
My second point is one that I did not make during the Report stage. It concerns the problem of the trajectory of the rifle. On Report the noble Viscount was very concerned about the use of the rifle. We know that ·22 rifles are used on rabbits, and if we said that that was a legitimate point to make, we should have to reopen the whole issue of on what size of small animals rifles are used anyway. Therefore, we are not breaking new ground by trying to insist that the shotgun be phased out and replaced by the rifle for control of all kinds of deer.
I have made my points. I have made my protest. I believe that this Amendment is misguided for all the reasons which I gave on Report and which I shall not repeat. However, I suppose that if

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we accept the Amendment as amended, as the noble Viscount said we must await the advice of the inter-departmental committee. After the Bill becomes law, as I hope it will, I shall press the Government to set up that committee very quickly and to ask it to report as soon as possible on this issue of appropriate weapons, shot, and so on, for the species of deer, or any other matter. That is the only way we can leave it. I am very sad about the whole thing because I recognise the dangers that were mentioned by the noble Lord, Lord Dulverton, about what happens once the door of exceptions is opened and the possibility of other kinds of deer being pushed through that door by people who do not especially like the Bill anyway. However, as I understand it, the House seems prepared to accept this amended Amendment, and therefore I do not think that I should resist.
Viscount THURSO: My Lords, I am grateful to the noble Lord, Lord North-field, for his qualified acceptance of this Amendment. I should like to give him an answer on his two points, not in any way to put him down but, I hope, to give him comfort. He is stating that this Amendment will in some way establish a legitimate defence for shooting roe deer. With the greatest respect, it will not. It only establishes a legitimate defence for shooting the species specified. If somebody is going to tell a tall story to the magistrates he will tell a tall story. He will say, "I thought it was a rabbit". This sort of thing has happened before. People have been shot in these sorts of circumstances, let alone deer. There are unfortunately, and there always will be, careless shots, but I do not think they constitute a major menace in this case.
The other point was the question of the trajectory of the rifle. There is a world of difference between the lead bullet in a ·22 and the cased bullet in the ·236. If the noble Lord were to consult people who know about ranges he would find that half a mile is sufficient backing for a ·22 whereas a mile would be required for the ·236. I think that I have a point here, in that there is a considerable difference in the danger which would be inflicted upon the unsuspecting public by the rather higher velocity weapon. I do not want to go on arguing technical points before
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your Lordships at Third Reading. I am grateful to the noble Lord, Lord North-field, for yielding over this. I am even more grateful, in a sense, for the fact that this may produce a quick inter-departmental committee, which I think is most important.
On Question, Amendment, as amended, agreed to.
8.12 p.m.
Lord NORTHFIELD: My Lords, I beg to move that this Bill do now pass.
Moved, That the Bill do now pass.—(Lord Northfield.)
Lord STANLEY of ALDERLEY: My Lords, I shall delay the House only for a brief moment to raise two points. One is to correct an unfortunate error on my personal behalf. I am reported as saying on Report on 8th February, in column 951:
"I… am very much opposed to it"—
it being the Bill. I hope that your Lordships will realise by what I have said that what I meant to say was "I … was … opposed to it". I mention this point partly to correct the record but mainly to draw your Lordships' attention to what I believe has been the happy path that has been taken by all noble Lords who have taken part in the Deer Bill, Marks 1 and 2, in getting agreement on the matters raised. I should like to mention in particular the noble Lords, Lord Northfield and Lord Wells-Pestell, with whom I have not always agreed. At times I may have treated them rather like recalcitrant cows, or even deer (they can choose which they like to call themselves), but I am most grateful for their tolerance and kindness.
The other point I should like to take up has been brought up once or twice by my noble friend Lord Mansfield, and concerns his mythical Auntie Aggie who goes out hunting with staghounds and, in pursuit of deer, by mistake or possibly because she gets out of control, crosses land that she should not be on. My noble friend Lord Mansfield raised this question once or twice and asked what would be the legal position of this mythical aunt if she strayed on to this land, and I should like to repeat this question.
Viscount THURSO: My Lords, may I add one word to what the noble Lord, Lord Stanley of Alderley, has said. I

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thank the noble Lord, Lord Northfield, for his courtesy throughout this Bill. We may have been struggling like a couple of old stags, but I think we can stand back and say that neither of us was thrown. I wish him the greatest success with the Bill in another place, and I hope that we may soon see it back in your Lordships' House. I should also like to thank the noble Lord, Lord Wells-Pestell, for his help, and for the help of others from his Department who gave me advice for which I was extremely grateful. May I also thank the Whips for at last bringing us to the light of day. It has been very useful, and I wish the Bill every success. Anything I can do to help it at any later stage I shall be only too willing to do.
8.15 p.m.
Lord WELLS-PESTELL: My Lords, may I respond to what the noble Lord, Lord Stanley of Alderley, said to me. I never take personally any criticism that he makes in which I am involved. I know that he dislikes Ministers on this side of the House and dislikes the Government even more, but we do not hold that against him at all. In fact, I have always found him very helpful when the occasion has arisen.
At Report stage, the noble Earl, Lord Mansfield, asked a number of questions which were essentially legal questions which I did not feel able to answer because I had no competence to do so. However, I promised that I would go into the matter and write to him with regard to the effect on hunts and hunt followers of Clause 7 of my noble friend Lord North-field's Deer Bill. I am quoting from the letter, and if Lord Stanley of Alderley does not mind I shall quote the essential points rather than detain your Lordships unnecessarily. I said in the letter:
"My understanding is that the case is established that, to be guilty of aiding and abetting, a person must be proved to have intentionally encouraged the offence and to have had knowledge of the facts which go to constitute the offence."
I gave the noble Earl, Lord Mansfield, a number of cases and quoted from the various reports.
"Thus a hunt follower who trespasses on another's land whether it is open country or a suburban garden will not be guilty of aiding and abetting an offence under Clause 7 if the prosecution fail to show that he encouraged, and intended to encourage, the hunt in the commission of that offence.
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"A hunt follower who trespasses on another's land in open country will not be guilty of aiding and abetting such an offence if the prosecution fail to show that he had knowledge of the fact which prevented the hunt from relying on the defence in subsection (3); that is, that the hunt knew that the land was owned by an organisation which had bought it for the sole purpose of excluding the hunt."
I do not think I need say anything more than that. I think it covers the point which the noble Earl raised.
There are two other matters that I undertook to bring before your Lordships. One was an assurance about the consultation with the British Deer Society. My noble friend Lord Northfield specifically asked some time back that the British Deer Society should be consulted before the powers referred to in Clause 5(5)(a) and (b) were used. These are powers given to the responsible Ministers to enable appropriate steps to be taken to deal with outbreaks of animal diseases. In response to the noble Lord's request, I said I would look into the matter.
Having done so and on the assumption that as regards Northern Ireland he has in mind the Irish Deer Society rather than the British Deer Society, I can give him an assurance in these terms: where time and the gravity of the situation permit, the agricultural departments concerned (that is to say, in England the Ministry of Agriculture, Fisheries and Food; in Wales the Welsh Office; in Northern Ireland the Department of Agriculture for Northern Ireland) will consult with the Society about any action involving deer which is contemplated under the Acts mentioned in Clause 5(5)(a) and (b). I feel sure that my noble friend will appreciate that there could be a few cases where the overriding need for immediate action to deal with animal diseases might preclude such consultation. I am not being difficult when I say that, and, in practice, I believe neither society will have cause to complain that their legitimate interest in deer was being ignored.
Finally, a word about a matter that arose under Clauses 1 and 2 dealing with the effect of the removal of the words:
"if he satisfies the court before which he is charged".
As to the admission of those words, I can confirm that they make no difference at all to the power of the police to prosecute

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in cases where they believe an offence has been committed. The result of Lord Northfield's Amendment is simply that we now have consistency in the Bill whereas before we have had inconsistency. The drafting has been improved and no ambiguity or obscurity remains. The police will in no way feel inhibited from prosecuting, nor will an innocent person be put at greater risk.
I do not think I have any other matters to clear up. The Government are obviously happy that these various matters have been resolved, with less difficulty than at one time, perhaps on the last occasion, we anticipated. It may be unusual for a Minister to wish to express his personal gratitude to the officials in his Department, but I wish to do that in view of the magnificent contribution they have made, and I do so because, like your Lordships, I am indebted to them.
Lord MOWBRAY and STOURTON: My Lords, I wish on behalf of my noble friend Lord Mansfield to thank the Minister very much indeed for the trouble he has taken in dealing with various noble Lords' Aunt Aggies, including the point raised by my noble friend Lord Dulverton. I also wish on my own behalf to thank and congratulate the noble Lord, Lord Northfield, on his successful, if from his point of view not altogether perfect, conclusion of the Bill.
Lord NORTHFIELD: My Lords, it would be remiss of me if I did not reciprocate the kind thanks and warm good wishes I have received from all parts of the House. Noble Lords have other business to deal with, so I will be brief. I wish to thank, first, my noble friend Lord Wells-Pestell who, as I said before, has personally taken on the Bill, although he has now moved to another Department: he wanted to keep his interest in the matter and we are very grateful to him. I particularly thank him because, in addition to all he has done, he has dealt this evening with three matters of some importance. The assurances he has given are of immense importance to the success of the Bill.
Secondly, I wish with him to thank again the officials at the Home Office. It is unusual for a Private Member's Bill of this complexity to get so much help, and I am grateful to my noble friend and the
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Government for providing the help of parliamentary counsel and the continuous advice of Home Office officials; they worked late hours and took no end of trouble to make sure we got the Bill as right as possible at this second attempt. I hope, if I may say this to my noble friend, that that augurs well for Government support in the other place. I hope I have now in a way committed the Government to the Bill should there be any hitch in finally getting it into law.
Thirdly, I should like to thank noble Lords on all sides. I crossed swords, I thought a good deal less this time, with the noble Lord, Lord Stanley of Alderley, and I think that after this Bill I can count him a firm friend. The noble Viscount, Lord Thurso, fights hard but is always courteous and he has earned my respect and goodwill, and I am grateful to him. He can claim that the matter regarding consistency about which my noble friend was speaking was worked out by him, not by me. Noble Lords in all parts of the House have been very helpful indeed. Without mentioning other names, I will merely say "Thank you" to them all, and I hope they will support me if we now run into troubled waters when the Bill has to get through the other place.
On Question, Bill passed, and sent to the Commons.

ESTATE AGENTS BILL
8.25 p.m.
Lord WALLACE of COSLANY: My Lords, I beg to move that this Bill be now read a second time. It is a very important Bill which will need our careful concentration and, I hope, support. I am sorry it has come on at so late an hour, but that is not my responsibility. Buying a house is the most important, the most costly and without doubt the most worrying personal transaction undertaken by ordinary people in the course of their lives. They have long felt a sense of grievance that Parliament seemingly should be unconcerned about their plight and should be remarkably reluctant to take action to protect them from the unscrupulous minority of estate agents with whom they must deal. This lack of protection and this sense of grievance has not gone unnoticed. During the last 90 years

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many attempts have been made to introduce an element of legislative control over the estate agency business and all its activities.
I will not detain the House by giving the full history of some remarkable attempts made by Private Members of all Parties to try to obtain a Bill. It started in 1808 with a Bill by a Mr. Duncan. There have been 13 Bills all told and this is the fourteenth—and, I may add, a Government Bill for the first time. It received a firm and detailed examination in another place, where it left with the good wishes of all sides and the hope that noble Lords would give it a speedy passage.
What are the grievances the ordinary person wants remedied? Here I have in mind the individual buying or selling his own home. Our own experience of buying and selling our own homes surely provides the answer to that question. The consumer wants to be satisfied that the moneys he entrusts to an estate agent will be secured against defalcation or loss from any other means. He wants absolute honesty and openness in all dealings between him and the estate agent, whether he is the vendor or the purchaser. His arguments are unassailable. He also expects the agent to have a reasonable knowledge and experience of estate agency work. It is right that the minority of agents—I emphasise "minority"—who besmirch the good name of the honourable majority and who abuse the faith placed in them by the trusting consumer should run the risk of prohibition from practice. That is the essence of the Bill.
The Bill is not an attempt to regulate the estate agency profession and all the activities which may be undertaken by those who call themselves "estate agents". Its aim is to protect the consumer in a limited area of activity, and to that end is concerned only to control those who act as middlemen in the buying and selling of residential property. In this area it aims to strengthen existing self-regulation by sanctions. No attempt has been made to extend the protection afforded by the Bill into the wholly industrial and commercial field. There is no evidence of a general demand for such an extension, and even if there were this Bill, with its limited aims, is not the appropriate legislative vehicle. The large company buying
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and selling in these particular areas of activity is well able to take specialist advice and can in consequence adequately protect its own interests.
The Bill also eschews any attempt at licensing or registration. The introduction of a licensing system would require additional and unnecessary bureaucratic control to eradicate the abuses of a minority and this is simply not desirable in order to achieve the measure of protection required by the general public. What is required is a means of ensuring that the man in the street is protected in his dealings with estate agents. This protection is achieved by the introduction of what I believe is the novel concept of negative licensing—permitting the estate agent to continue to engage in his profession until he is found unfit to practise.
The dealings of the vast majority of estate agents are above reproach. These agents already operate to high standards and deal fairly and openly with their clients. They have nothing to fear, and they will be free to continue to practise as they always have done, without restrictions. But it will be against the unscrupulous, the fraudulent, and the dishonest, as well as the discriminator, and the fly-by-night that the Bill will bite, as well it should, my Lords. Undesirable practices may be proscribed by regulations under the Bill. Those who are unable adequately to indemnify their clients for loss of moneys entrusted to them will simply not be permitted to take money, and clients' liabilities for any prospective charges for agents' services, and the agents' personal interest they may have in any transaction will have to be declared to the parties involved.
I think that it will now be of advantage to your Lordships if I sketch in the main provisions and features of the Bill. The Bill is a consumer protection measure. With a view to affording protection to users of their services, it imposes a degree of control over certain activities of estate agents; essentially the broking activity of bringing together in the course of business a buyer and seller of substantially residential property, with the aim of securing transfer of interest in that property. This is the controlled activity that Clauses 1 and 2 define and limit. Any person who carries out the defined activity is controlled—and not only those who call themselves estate agents.

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The Bill concentrates on residential accommodation because it is the individual buying and selling his own home who most needs protection. It covers the single residence, as well as the mixed property with a substantial residential element. It excludes buildings which are essentially non-residential, even though they might have an incidental residential content. I suppose that the most obvious example is the large office block containing a flat to enable the caretaker properly to carry out his function. The small businessman who sinks his capital in a business is also given a fair measure of protection. Residential property has been so defined as to include a single transaction which might embrace a dwelling where a business is carried on and where the assets are sold for a capital sum, the property being let at a rack rent.
The Bill exempts solicitors from control. In Scotland the buying and selling of houses is frequently an integral part of the work of solicitors. Since solicitors are already subject by statute to strict and rigorous rules—certainly as strict and as rigorous as anything proposed in the Bill—practising solicitors engaged in the course of their profession have been excluded from the scope of the Bill. It would be nonsensical to have two similar, but different, systems of control applicable to the same person.
Clauses 3 to 8 embody the general control principle of the Bill, which is the concept of negative licensing: that anyone may practise estate agency work unless and until he proves himself to be unfit to do so. Subject to appeal and to a warning in some cases, the Director General of Fair Trading will be able to prohibit by order any person engaging in estate agency work, either wholly or in part, if he considers that person to be unfit to practise on clearly defined and specified grounds. These grounds include certain criminal convictions, findings of racial or sex discrimination in the course of estate agency work, and engaging in practices declared by order of my right honourable friend the Secretary of State to be undesirable.
Because a sanction which can result in the deprivation of a person's livelihood, or at least an important part of it, is a swingeing and powerful weapon, it must
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be used with discretion and only after due thought and careful consideration. The Bill therefore provides that before the Director General has formed a fully rounded judgment of an estate agent's fitness to practise, that agent will be afforded the right to make representations to him. And when the Director General has made a fitness order, or has refused to revoke or vary such an order, the agent will be able to appeal against the Director General's decision, first to the Secretary of State, and, secondly, to the courts on a point of law, from a decision by the Secretary of State.
It is important that any powerful sanction should not be more onerous than is needed to stop the mischief which renders the agent unfit. The Bill therefore permits the Director Genral in certain cases to issue an order banning an estate agent from carrying on estate agency work, either generally or in a particular area, which may be as wide as a country, or as small as a district, or of a particular description. Thus where, for instance, a rogue manager in a branch has committed discrimination in the course of estate agency work, the Director General will be able to ban the activities of that branch in relation to the given area, but not hamper the activities of branches in other areas.
The Director General's powers under the Bill do not duplicate those under the existing legislation on discrimination. As my honourable friend the Minister of State said in another place; as reported at column 51 of the Official Report, Standing Committee E, 28th November 1978:
"The Director General will not have any power to determine whether an estate agent has committed sex or race discrimination. It is not his judgment. That would be the judgment of a court or tribunal under the Race Relations Act and the Sex Discrimination Act. The judgment that he will have to make is this. Once there is a finding—it is not an offence; no criminality is involved in those two Acts—or a confirmed non-discrimination notice has been issued, he will have to determine for himself whether the discrimination was committed in the course of estate agency work. I think that that is a fairly easy judgment for him to make.
Once the Director General is satisfied that there is that finding by another court or tribunal, and that it took place in the course of the man's work, he has to decide whether that justifies setting up an inquiry on whether the person is unfit to practise as an estate agent".

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The procedures proposed in the Bill place a clear duty on the Director General to exercise effective control by giving him the necessary flexibility to form a fully rounded judgment about the fitness of an estate agent to practise. At the same time they leave the practising agent in no doubt at all about what actions of his may cause the Director General to move against him. By these proposals justice will clearly be seen to be done to all estate agents without any dilution of the consumer protection element afforded by the Bill.
Clauses 9 to 11 enable the Director General to call for information to assist him in the discharge of his functions, and the usual restrictions and penalties apply to the unauthorised disclosure to third parties of information obtained by virtue of Clause 9. Provision is also made for the powers of entry and inspection to be given to duly authorised enforcement officers. The provisions are no more stringent than is necessary in the consumer interest while, at the same time, providing adequate protection for the estate agent by circumscribing the circumstances under which the enforcement officer can act.
Clauses 12 to 17 attempt to satisfy the needs and desires of consumers that any moneys they entrust to estate agents should be secured against defalcation or loss. Thus, unless some form of indemnity cover is obtained by an agent against his failure to account for those moneys, he will not be permitted to accept clients' money. Exceptions can be made however when either the Secretary of State or the Director General is satisfied that the protection afforded by the Bill will not be endangered. In order to ensure that the public has sufficient guidance to judge whether deposits can safely be placed with an agent, the Bill controls the circumstances and conditions in which a person can describe himself as an estate agent or indicate that he acts as a broker of residential property.
An estate agent will be required to maintain, and pay any clients' money he may receive into, a separate client account. The Secretary of State will be enabled to prescribe by regulation the manner in which the client account is operated, maintained, and audited. Thus the best practices of existing agents can be imposed on all agents, and so a valuable measure of
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protection will be afforded in an area where, over the years, evidence of abuse and malpractices has come to light.
Clauses 18 to 23 regulate various other aspects of estate agency work. Clause 18 provides for the disclosure to a client of full particulars and details of the circumstances in which he will become liable for charges and remuneration. Should it seem desirable, in the light of experience, to bring certain terms of contract more prominently to the attention of the client—for example, the exact circumstances in which sole agency arrangements terminate—provision is made for my right honourable friend the Secretary of State to require additional information by regulation. Clause 19 empowers the Secretary of State to prescribe by regulation a limit on pre-contract deposits taken in the course of estate agency work outside Scotland. Pre-contract deposits are not customary in Scotland; and Clause 20 prohibits the seeking or acceptance of such deposits by any person engaged in estate agency work in Scotland, whether or not the interest in residential property which is being acquired is situated in Scotland or elsewhere in the United Kingdom.
Clause 21 requires an estate agent to declare a personal interest of his or his associates in any residential property for which he is acting as an agent. It is not an uncommon source of complaint that a person ostensibly acts as an estate agent in the sale or purchase of a property in which he or his associates have a personal financial interest, the implication being that his position is used to buy cheaply and then to sell at a substantial profit. The consumer tends to think of estate agents as independent experts whose views on market values, et cetera, can be relied upon to be impartial. Provided both outside parties are aware of any interest the agent might have, they are free to go elsewhere or to take another opinion, and no harm is done.
Clause 22 will enable my right honourable friend the Secretary of State to make provision by regulation for ensuring that estate agents satisfy minimum standards of competence. Fears have been expressed that this provision will lead to a closed shop by excluding those who do not have technical and professional qualifications. I therefore repeat, "minimum

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standards of competence". Technical expertise and professional qualifications are not necessary to engage in the activity controlled by this Bill. To insist upon such standards would limit entry to the profession and restrict competition to the public disadvantage. In setting minimum standards, the Secretary of State must in any regulation he might make recognise practical experience, which alone will be taken as evidence of competence. He may, in addition, prescribe professional or academic qualifications as acceptable alternatives.
The clause is framed in such a way as to allow recognition of the professional qualifications of professional bodies, and for the introduction of much lesser academic or professional qualifications, and in fact gives recognition to the former bodies. He may also designate or constitute a body to examine and inquire into the competence of unattached persons engaged in estate agency work. The body's function would be to test and prescribe minimum qualifications which are to be taken as evidence of competence. The qualifications will not take account of expertise irrelevant to the broking activities covered by the Bill, and will be concerned, as my honourable friend the Minister of State said in another place:
"… with those who engage in estate agency work which, although requiring high standards, will not necessarily require the range of qualifications required for other purposes by the existing professional bodies. It will, of course, be necessary for my right honourable friend to appoint persons with the necessary knowledge to test the competence of those who do not wish to join the designated bodies, and to prescribe standards for them. I think I can assure the Committee that in order to get the body off to a good start it will be necessary for my right honourable friend to draw upon the knowledge and expertise of members of the existing bodies".
That is, the existing estate agency bodies.
Clause 23 provides that undischarged bankrupts may not engage in estate agency work except as employees of another person. I do not think, my Lords, that anyone would disagree that it is undesirable that such persons should be in a position to receive money from the public which should be paid into a client account. These are the main proposals. There is, however, one remaining clause to which I wish to draw attention. Clause 35 amends the Scotland Act 1978 to take account of the devolution of
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matters covered by the Act, and reserves out of them matters relating to the fees paid or to be paid to the Director General of Fair Trading. This does not amend the constitution. All it does is to recognise the position, as do other Bills now going through Parliament, such as the Banking and the Nurses, Midwives and Health Visitors Bills.
My Lords, 90 years is a long time for some form of consumer legislation in this field to evolve. That may be absolutely amazing, but it is true. The Bill aims to protect the consumer in a limited area of the estate agent's activity, but that limited area is where the demand by the consumer for some measure of protection is the greatest, and it is the one area that, sooner or later, affects us all. It is an area where the consumer can easily be so palpably lacking in experience and patently vulnerable to the inadequacies and malpractices of certain agents. I do not pretend that the Bill is the complete answer to all the consumers' problems. As my honourable friend the Minister of State said in responding to certain matters raised in the Second Reading debate on this Bill in another place:
"The purchasers and vendors of houses will not be able to rest all their confidence and faith in a modest Estate Agents Bill. They will still need care and advice. They will need legal and other guidance about surveys and valuations. The Bill will not remove all the attendant risks of buying and selling a house. I do not wish to give the impression that it will. It lays down a number of minimum requirements that I think will improve the protection of house purchasers and vendors".—[Official Report, Commons, 16/11/78, col. 689.]
It does, indeed, do that, my Lords, and for that reason I hope the Bill will be supported. Let us not forget that for 90 years many Private Members have been trying to enact such a Bill. The Government have now brought it forward, it is warmly supported in another place, and they ask your Lordships to speed its progress through this House. I therefore commend the Bill to the House, and beg to move that it be read a second time.
Moved, That the Bill be now read 2a.—(Lord Wallace of Coslany.)
8.47 p.m.
Lord SANDYS: My Lords, the House will be grateful to the noble Lord, Lord Wallace of Coslany, for explaining this

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very important Bill. The noble Lord suggested to your Lordships that we should be speedy in our consideration of it. At this late hour I shall certainly attempt to comply with his suggestion, but I would at the same time sound a note of caution, because, although this Bill has been before another place on many occasions—as the noble Lord rightly said, this is the fourteenth Bill—it is a very difficult area in which to legislate, as has been proved in the past. My Lords, we welcome this Bill from this side of the House. I would heartily support the noble Lord, Lord Wallace of Coslany, when he said that it was—and I quote his words—"to strengthen through self-regulation and sanctions". I think that was the phrase he used. This builds upon the situation as we know it, in which the professions generally, through their own schemes of admission and through their own Royal Charters in certain particular cases, have endeared themselves to the public over a very long period. The principal agencies in this profession—that is, the National Association of Estate Agents, the Royal Institute of Chartered Surveyors and the Incorporated Society of Valuers and Auctioneers—all warmly support this Bill, although in detail they seek to bring forward certain Amendments to it.
I think the Government have passed through a metamorphosis in the last two or three years in regard to this Bill, which proves what a difficult subject it is, because in their Green Paper of 1976 they proposed a system of positive licensing. After careful consideration of the consumer credit aspects, they have revised their views and have brought this Bill forward, which is now very much more acceptable. Of course, it builds upon the Private Member's Bill which was before another place last Session, and is almost identical in terms to it, but there are three principal changes. The first is that local authorities, housing associations and housing corporations are brought within the Bill; the second is that the activities of receivers in fiduciary awards are excluded; and the third is that the definition of "indirect personal interest" is further confirmed.
Long reference has been made by the noble Lord to the number of attempts. We have, of course, a very different situation in 1979 because the structure of
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arrangements for consumer protection is very much better than it has been over a long period—and for these reasons: that self-regulating arrangements have been made within the professions; that the Government seek to introduce a new feature, the Director General of Fair Trading into affairs, and, further, that they seek to clarify certain provisions. I was interested to hear that the noble Lord's right honourable friend the Minister for Consumer Affairs, Mr. John Fraser, in Standing Committee E on 28th November (and I am quoting from column 31) said:
"We attempted to find a precise definition of what was residential property and what was not, but we found it impossible to achieve any worthwhile result".
This problem occurs in the very first sentence of Clause 1 of the Bill and carries over into Clause 2. The Minister believes that he has discovered a satisfactory definition. But we shall intend—and I make mention of this now—to probe a little further into this problem, because on my first reading of the Bill it was not clear to me (and I am sure it was not clear to many other people) that those very important words which occur in Clause 2 are sufficient to cover properties other than purely residential ones. The noble Lord's right honourable friend went on to say:
"I have said that the definition in the Bill includes the mixed heraditament: the newsagents' shop in Harrow with the flat above it or the garage with the adjoining house. So far we have the virtual unanimity of consumers and professions that those are areas that need to be covered".
This is a very difficult point. I make special mention of it at this early stage because I believe that we ought to examine this with the greatest care as we proceed through the Committee stage.
The further matter that we shall be considering is the matter raised under Clause 7. The noble Lord referred to the question of appeals from the Director General's ruling to the Secretary of State and, further, to the High Court, the Court of Session or Judge of the High Court in Northern Ireland. This is an area to which we shall certainly be addressing ourselves because we believe that the appellate procedure should be spelled out very much more clearly in the Bill and not be permitted to form part of regulations.

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I come now to Clause 11—a matter of considerable public interest. That is the question of the powers of entry. There are precedents here and, if I may, I will quote five of them which I believe to be in some way cognate, if not identical. Powers of entry were conferred in the Weights and Measures Act 1963, in the Criminal Law Act 1967, in the Finance Act 1972, in the Counter-Inflation Act 1973 and in the Consumer Credit Act of the same year. All these separate Acts give powers of entry, some of them without a warrant; and there is a parallel situation under this Bill. We attach very great importance to this particular clause and we believe that it should be possible for the Director General of Fair Trading, when he has considered a case, duly to instruct his authorised officer to obtain a warrant from a magistrate before making forcible entry to premises. It may be that there are special circumstances here; but for a situation of this type we believe that the greatest care should be taken before permitting this clause as it stands at the moment to pass from your Lordships' House.
I turn to Clause 16, the indemnity cover. The question of bonding aroused considerable interest in another place and we believe that the existing arrangements as practised by the joint indemnity scheme in a number of professional bodies is the most satisfactory. If it is the Government's intention under Clause 16 that indemnity cover should recognise (as we believe it does) the joint scheme that is, to a fair measure, satisfactory. But we believe that there are amendments which can be adduced to this situation. I promised that I would address myself briefly on Second Reading. I could go on considerably further, but there is more business to be covered this evening and I will content myself by advising the House that we shall have a number of Amendments to bring forward at Committee stage.
8.58 p.m.
Lord AIREDALE: My Lords, this Bill has support from the Conservative Benches and from these Benches and we suppose—we can only suppose—that it has support also from the Labour Benches opposite. I want to confine my observations to one clause only, Clause 11, the
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enforcement provisions. This is, first, because it will shorten my speech at this rather late hour; secondly, because, to use the words of the noble Lord, Lord Sandys, this clause has aroused much public interest; and, thirdly, because it is a model clause. If I may, I will add to the list of existing statutes the Trade Descriptions Act 1968 and the Consumer Safety Act 1978. Here we have a list of statutes, all containing almost identical enforcement provisions to those in Clause 11 of this Bill; and, presumably, we shall go on having consumer protection measures incorporating this standard clause.
If the clause contains a defect—as I hope to be able to explain that it does—then I think this matter becomes more than just a Committee point because it affects so much besides the provisions of this particular Bill. I should like to contrast subsection (l)(a) with subsection (1)(b). Paragraph (b) which describes the enforcement officers' right to examine documents begins with the words:
"if he has reasonable cause to suspect that an offence has been committed under this Act …".
But paragraph (a), above it, which describes the officer's power of entry, is not qualified by any reference to his having cause for suspicion. It appears, therefore, that the officer has power to enter purely at random to make inspections without acting on suspicion. Of course, when last summer we were discussing consumer safety and the safety of goods, undoubtedly it made sense to say that an officer at random could go into a warehouse and examine, if not the goods themselves, at least what was written on the containers describing the goods inside: the model numbers, countries of origin and so on. But of course estate agents do not keep their goods on the premises. I suggest to your Lordships that one does not get very far, having got into an estate agent's premises, unless one can inspect the documents. The officer can only inspect the documents if he is acting on some suspicion.
The Minister in the Standing Committee in another place gave an example. This was the power of the officer to inspect to see whether the required certificate of competence to practise was being displayed. Of course "being displayed" means being displayed where the clients

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can see it, and the clients are members of the public. The enforcement officer is a member of the public and he does not need an Act of Parliament to tell him that he can go into an estate agent's premises to see, just like everybody else, whether a certificate is hanging on the wall.
Then the Minister quoted the case of a premises where the estate agent had written up over the door: "No trading standards officers allowed in here". The implication seemed to be that, notwithstanding that, subsection (l)(a) gave him power to go past that notice into those premises. But unfortunately that simply is not the case because refusal of entry is dealt with specifically in the clause. It is subsection (4). It says that the officer can go to the magistrate for a warrant. If the magistrate is satisfied that entry to the premises has been refused, he can grant a warrant, but only if he, the magistrate, is satisfied that there is reasonable ground to believe that an offence either has been, is being or is about to be committed. So, of course, the officer's case falls flat if he starts out on a random expedition, is refused entry and then goes to the magistrates because the magistrate has to say to him: "Unless you can show me that you have reasonable cause for suspicion, I cannot give you a warrant."
The Minister in Standing Committee explained his policy with regard to this quite shortly and simply. I should like to quote this. It is at col. 90 of the report of the Standing Committee proceedings:
"… the trading standards officer or the enforcement officer can exercise these powers only if he has reasonable cause to suspect that an offence has been committed. If he goes merely on a fishing expedition or inspects merely as an arbitrary act, then he is himself breaking the law and is liable to action by the person whose premises are being inspected or whose books are being taken away".
In the face of that, one may well ask: How does Clause 11(1)(a) come before us with no mention of suspicion in the mind of the officer? I regret to say it is because it is a model clause. It has been introduced in other Bills in the past designed for other purposes. Without real care being given to the question whether it is necessary here, it is simply put in the Bill and, I suppose, it is said: "Well, if objection is taken to it, at least we can say that there are precedents for it". I do not think that is good enough.
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Subsections (1) and (4) just simply do not fit together. What we must do is make a policy decision. By all means let us adopt the Minister's declared policy and insert the words "reasonable cause for suspicion" at the beginning of paragraph (a). That is much the most satisfactory solution. A possible alternative solution is to amend subsection (4) so that the magistrate's hand is freed and he may grant a warrant even without his having to be satisfied that there are reasonable grounds for suspicion. I do not think that is the best way of doing it. What is quite wrong is to leave the matter as it is with subsections (1) and (4) which simply do not fit together. My Lords, that is quite long enough to speak at Second Reading on a rather detailed matter. We must come back to this in Committee, and I hope that we shall be able to resolve this matter.
9.6 p.m.
Lord GISBOROUGH: My Lords, this Bill, after 90 years, is being rather hurried through Parliament to fill in time, I feel. It is remarkable that we have had no less than eight Second Readings in two days—certainly a big deal for small Bills. I feel that there has been inadequate consultation with some of the professional bodies and therefore that as it stands at the moment the Bill will fail in much of its intention.
The Bill requires that those estate agents who accept deposits should be bonded in respect of those deposit moneys. As the public becomes aware of the bonding situation, most will assume that all agents are bonded. They will put greater trust in all agents, regardless, and will be led into a sense of false security. This will not stop the dishonest or financially harassed non-bonded agents from accepting moneys, even though they have no right to do so. The Director of Fair Trading can only intervene after an agent has defaulted. It will be little comfort to the depositors who will be denied protection where it is most needed owing to their false sense of security. The respectability of the whole profession will then be lowered by these "cowboy" agents, to whom the Bill will have given a gloss of respectability. Surely, to avoid this, all agents should be bonded, so that there is no place at all for the cowboys. If they cannot get bonding,

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then they will not be able to operate, and they ought not to be operating anyway.
Further, surely there is no justification for covering only deposits. Should not the whole sum be covered, because that is much more important than the deposit itself? There is also another abuse involving deposits in connection with properties for rental. Often, this takes place in connection with rented property, very often at the upper end of the market, where perhaps 10 weeks' rent is demanded in advance as a deposit. At the end of the tenancy, the depositor is often prevented from getting back his deposit by reason of so-called "dipalidations," which may or may not be genuine. I think that tenants' protection in this sphere could well be covered in this Bill.
Clause 22 deals with standards of competence. Certainly, it is necessary that there should be minimum standards of competence because, after all, bad advice given by an incompetent agent can bring far greater loss to a house buyer or seller than the loss of a deposit—for example, by a gross under or over-estimate of the selling price. That can happen either through lack of experience or indeed as a result of malpractice. Surely, the remedy is to require that the Secretary of State should define minimum standards within the prescribed period of two years. The standards of the profession are, of course, already very high, and there is no attempt on the part of the profession to suggest that there should be a closed shop; but non-members of the profession conforming to Government standards of competence should surely be required to have standards which are least equal to those required by the professional bodies, with their years of expertise and experience. I see why the Bill should not apply to solicitors, but it should apply to estate agents, it should surely cover surveyors, valuers and others who are dealing in moneys, because they can do equal damage to house buyers.
There is too much dependence upon regulations. The Minister said that he would show these regulations at the Standing Committee, but I think I am right in saying that he then apologised and admitted that there were no draft regulations at all. That is a strange state of affairs. It also came out that
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there was an official intention to improve the Act after it came into use—but how much better it would be to get it right now. As drafted, there is certainly inadequate support for this Bill among the professions; nor will it serve the public. But it would gain that support if it were adequately amended and if the oppressive features were removed. Generally, any form of legislation which is designed to protect depositors and standards of competence will be greatly favoured by the profession. At the moment, as the Bill is drafted, the public would be better served without it than with it, am sure the Government mean well, as they so often do, but they have got it wrong and there will have to be a great number of Amendments.
9.12 p.m.
Lord WALLACE of COSLANY: My Lords, I would thank all the noble Lords who have taken part in this debate. I shall be brief now because of the late hour and because there is further Business to follow. The noble Lord, Lord Gisborough, has rather underestimated the support for this Bill in another place. There was considerable Committee consideration, and indeed people representing various sides of the House made the plea that, although the Bill could perhaps have been stronger and covered a wider field, it was an important Bill, and they hoped that your Lordships' House would accept it.
I thank the noble Lord, Lord Sandys, for having given me notice of his points in advance, and I have duly noted them. We shall have a very interesting Committee stage. Powers of entry have inevitably been arranged. As soon as I saw the name of the noble Lord, Lord Airedale, on the list of speakers, I thought, "Good gracious me! we are going to get powers of entry". I was not mistaken and, of course, the noble Lord has been joined by the noble Lord, Lord Sandys. I think it would be as well for me to make just a few comments on this vexed question, which indeed vexes the noble Lord—I almost called him "Lord Hampden", because he was referred to as "the poor man's Hampden" somewhere else!
Looking first at consumer interests, the right to enter and look around is necessary to give the enforcement officer a defence against the possible charge of trespass. He needs the protection if he

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is to be assured of being in a position to ascertain whether, for instance, a person subject to a total banning order is not carrying out estate agency work as defined in the Bill, or to observe whether a person who does not display a certificate of insurance is, or is not, taking deposits. It is equally important that, where complaints are received that pre-contract deposits have not been returned on demand to the would-be purchaser, the officer should be able without delay both to examine the books and, if there appears to have been a fraud, to seize and detain the books as evidence. Delay could provide the rogue with a chance for a quick getaway, and I am sure that the noble Lord would not like to encourage that.
From the agents' viewpoint, there are a number of safeguards, because the circumstances in which the enforcement officer can act without laying himself open to civil action are circumscribed. Entry is permitted to business premises, or, for instance, in the case of a flat above an estate agent's office, only where the estate agent occupies both and might take his books into the flat. The enforcement officer cannot require the production of books and documents, unless he has reasonable cause to suspect an offence. He cannot seize and detain them without reason to believe that they will be needed in evidence, and he cannot require the breaking open, or himself break open, a container unless it is reasonably necessary.
The requirement that an officer must have "reasonable cause to believe" has been interpreted by the courts as a protection for the alleged suspect and the officer breaks the law if he acts arbitrarily. The estate agent who believes that there is no cause for the officer's action can refuse his request to inspect and take copies of books and documents, or to break open a container. The officer would then need a warrant to go ahead. The agent is further protected by the fact that the Secretary of State has power by regulation to require that enforcement officers can be authorised under the Bill by the Director; that Director can constrain any misuse of powers by any individual officer, and limit the number to carry out the duty.
I think that we should leave the question of bonding until the Committee stage,
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because there is obviously an Amendment looming up. As regards professional bodies and standards of competence, I think that I should be best serving the House by quoting an assurance given by the Minister of State in Committee in another place. He said:
"I give the Committee the assurance that the existing professional bodies with their own stringent examination systems, will be designated under Clause 22(2)(d) to set the standards of competence for their own members, so that those arrangements continue largely undisturbed. The body under Clause 22(2)(c) will not be concerned with those who engage in estate agency work which, although requiring high standards, will not necessarily require the range of qualifications required for other purposes by existing professional bodies.
It will, of course, be necessary for my right honourable friend to appoint persons with the necessary knowledge to test the competence of those who do not wish to join the designated bodies and to prescribe standards for them. I assure the Committee that, in order to get the body off to a good start, it will be necessary for my right honourable friend to draw upon the knowledge and expertise of members of the existing bodies in providing for a further designated body to provide an alternative to the arrangements which are institutionalised by the existing professional bodies".—[Official Report, Commons, 5/12/78.]
On the question of bonding, the terrible term "closed shop" arose, and it is the view that if certain requirements are met from some of the professional bodies we shall be creating a closed shop. Considering the warnings that have issued from Opposition Benches on this issue, I shudder at the prospect. Apart from that, I look forward to a very interesting Committee stage and I thank noble Lords for giving me advance information, which I hope will enable me to provide adequate and satisfactory answers.
On Question, Bill read 2a, and committed to a Committee of the Whole House.

CARRIAGE BY AIR AND ROAD BILL [H.L.]
9.19 p.m.
Lord JACQUES: My Lords, I beg to move that this Bill be now read a second time. This Bill is concerned with international conventions which limit the liability of the carrier. For most modes of transport there is an international convention, and every one of these

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conventions provides that the carrier may limit his liability. It is recognised that liability involves insurance, and that insurance is a cost which has to be covered by the carriage charges. The object is a limit which covers the general run of claims, leaving those with exceptionally large claims to take out their own insurance. It also has the added advantage that in the case of goods the carrier need not inquire minutely into the value of the goods which he carries. International conventions of this kind facilitate the standardisation of contracts and make life a little easier for the customer.
In the case of travel by air, the international conventions go back to the Warsaw Convention of 1929. This convention reversed the burden of proof. The carrier became liable, unless he could show that it was not his fault. He could limit his liability, in the case of passengers, to 125,000 gold francs. At that date, this was £1,000 per passenger. In the case of goods, he could limit his liability to 250 gold francs per kilo, which at that date was equal to £2,000 per ton.
The Warsaw Convention of 1929 was brought into effect in this country by the Carriage by Air Act 1932. By 1955, as a result of inflation, the limit of £1,000 per passenger had risen to £3,000. In 1955, however, there was The Hague Protocol which raised the limit per passenger from 125,000 gold francs to 250,000 gold francs, which was equal at that date to £6,000. This was put into effect by the Carriage by Air Act 1961. Unfortunately, the 1955 Hague Protocol was not accepted by the United States of America. That country has a standard of living which is somewhat higher than that to be found in most other countries, and its courts are much more liberal with compensation.
By the Montreal Agreement of 1966, the airlines agreed that on flights to and from the United States they would waive their defence that the carrier had taken all necessary measures to avoid damage and would pay compensation up to a limit of 58,000 dollars per passenger, excluding costs. An attempt was made to heal the breach in 1971 by a protocol which was agreed at Guatemala City, but this was not accepted by the United States. Consequently, the protocol was not ratified by other countries.
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In the meantime, the United Kingdom and other European countries took steps to make airlines under their jurisdiction offer, by special contracts, the same compensation to passengers generally as was offered to those flying to and from the United States. Under this contract, the limit is £29,000, or 58,000 dollars, so there is a little confusion. We, and certain other European countries, have fixed the limit at £29,000 in the case of the airlines under our jurisdiction. In other cases, there will be other limits. Where a carriage is subject to The Hague Convention the limit will be £10,780. That is to say, the £6,000 in 1955 at the time of The Hague Convention has now become £10,780 as a result of inflation.
This Bill seeks to give effect to the latest convention, the Montreal Protocols of 1975. These protocols make the carrier strictly liable and raise the limit to 100,000 units of International Monetary Fund drawing rights. That is equal at the present time to £66,000. Similarly, the limits for cargo and luggage were put in terms of International Monetary Fund drawing rights. And, incidentally, the limit so far as cargo is concerned is £11,000 per ton. There are amending protocols to two international conventions dealing with carriage by road and the effect of these is incorporated into this Bill. These simply convert the compensation from gold francs to International Monetary Fund drawing rights so that in effect there is a certain amount of uniformity.
Your Lordships will have noticed that there is a time lag between the dates of protocols and the date of the Act which put those protocols into effect in this country. For example, in the case of The Hague Protocol it was dated 1955 but it was not put into effect until 1961—six years later—and even the Montreal Protocol with which we are directly concerned this evening was adopted in 1975 and we are now in 1979. There is a time lag which is unnecessary. It is partly due to the difficulty of finding parliamentary time for the necessary legislation. Consequently it is provided in the Bill which is before the House that future amendments to the conventions shall be made by order, subject to an Affirmative Resolution of both Houses. This is perhaps the most appropriate case of all for using an order.

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The principal objection to an order which is subject to the Affirmative Resolution procedure is that it cannot be amended. Each House is asked to say, "Yes" or "No".
That is already the case in regard to international protocols. A national Parliament cannot amend an international protocol: the national Parliament is called upon to say, "Yes" or "No", so therefore this is the ideal case for the use of the Affirmative Resolution. If the national Parliament is limited to saying, "Yes" or "No" and cannot amend, then clearly three Readings, a Committee stage and a Report stage are not necessary. The Affirmative Resolution is the appropriate method, when the House has the opportunity of saying, "Yes" or "No" after due debate. So I contend that this is the ideal way of doing it and I can quote precedents. Section 8 of the Civil Aviation Act 1949 allows amendment of the Chicago Convention by order and by Affirmative Resolution. There are similar procedures in the Carriage by Railway Act 1972 and the Carriage of Passengers by Road Act 1974. Therefore, I think there is a strong case for using the Affirmative Resolution procedure.
I could go through the sections and Schedules, but I should merely be repeating what I have already said, although in a different order. I think at this time of the night I have said sufficient to introduce this Bill. I commend it to the House, and beg to move that it be read a second time.
Moved, That the Bill be now read 2a.—(Lord Jacques.)
9.29 p.m.
Lord TREFGARNE: My Lords, as always the House is grateful to the noble Lord, Lord Jacques, for introducing this Bill and for giving us that admirably short and concise explanation of the provisions of the Bill. I should like to express also a personal word of thanks to him for arranging, through his Department, for me to receive in advance a very helpful brief on the clauses of the Bill which I hope will enable me to speak briefly tonight and not ask too many questions, at least until the Committee stage.
As the noble Lord has explained, the Bill is principally designed to bring into our law the various conventions recently
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entered into and principally, of course, the Montreal Convention of 1975, and to make certain provisions arising from that. We certainly would not wish to oppose that intention. But, at the end of his speech, the noble Lord did refer to the power contained in the Bill to vary the provisions of this Act and other Acts related to it by order in future, and that is a matter which causes me to pause and think for a moment. I shall wish to consider this question especially carefully in the light of what the noble Lord has said tonight, because he was good enough to go into that matter quite carefully. For the moment I must say that I do not agree with him that it is appropriate necessarily to give the Government these powers. I would say that Acts of Parliament ought to be varied by further Acts of Parliament and not by orders slipped through in the wee small hours, perhaps when the House is as jam-packed as it is tonight! I am not yet decided on what is the right course of action in this matter, but I think I shall at least be putting down some probing Amendments at the Committee stage to get the Government's thinking in even more detail on this subject, because I know that a good many of my noble friends behind me share my concern in this matter. Having said that, the principal purpose of this Bill is certainly acceptable to us and I hope that your Lordships will now give it a Second Reading.
Lord JACQUES: My Lords, I thank the noble Lord for his general welcome to the Bill. On the principal point that he raised, of changes by Order-in-Council and Affirmative Resolution, I cannot add to what I have already said. I therefore commend the Bill to your Lordships.
On Question, Bill read 2a, and committed to a Committee of the Whole House.