Lords Sitting of 15 March 1979

Preamble
The House met at three of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of London.

HARRIER DEVELOPMENT PROGRAMME AND THE AV8B
Lord GISBOROUGH: 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 how the cancellation of the AV8B will affect the British Harrier development programme.
Lord STRABOLGI: My Lords, cancellation of the AV8B programme, if subsequently confirmed, will have little or no effect on the current British Harrier development programme.
Lord GISBOROUGH: My Lords, may I thank the noble Lord for that answer? Is he able to say whether we have the technology and capacity to produce major carbon fibre airframe components in this country, and when it is estimated that aircraft with this advanced technology will be available for the Royal Air Force?
Lord STRABOLGI: My Lords, work is in hand to develop this country's capacity to manufacture and incorporate major carbon fibre components in future military aircraft and, if shown to be cost effective, in existing aircraft as well. It is too early to say when aircraft with similar technology will be used in RAF aircraft.
The Earl of KIMBERLEY: My Lords, is the noble Lord able to say when the development of the Harrier with the new big wing, announced in today's Daily Telegraph, will take place? Secondly, if the Marines order for the AV8B is postponed and work could be done, would it not make the factory at Weybridge available for producing 100 Harriers to sell to China?
Lord STRABOLGI: My Lords, the Sea Harrier is currently under development for the Royal Navy. In addition, preliminary studies into the feasibility of fitting a large wing on existing aircraft for the RAF, to improve the range, pay load and manoeuvreability have been completed. Studies to refine wing design are proceeding. Regarding China, I have nothing further to add to the statement made by my right honourable friend the Prime Minister in another place on 16th January.
Viscount MASSEREENE and FERRARD: My Lords, may I ask the Minister this: Is it not a fact that the reason why we cannot expand Harrier production is the industrial situation on the shop floor of the factory at Kingston-upon-Thames where the aircraft are made?
Lord STRABOLGI: No, my Lords.

SUPPLEMENTARY BENEFIT: PAYMENTS TO STRIKERS
3.9 p.m.
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 what plans they have to harmonise United Kingdom law relating to the payment of supplementary social security benefits to strikers with the laws prevailing in other EEC countries.
The PARLIAMENTARY UNDER-SECRETARY of STATE, DEPARTMENT of HEALTH and SOCIAL SECURITY (Lord Wells-Pestell): My Lords, we have no such plans to harmonise the law relating to the payment of supplementary benefit to those involved in trade disputes. Nor has the Commission of the European Communities made any proposals for harmonisation in this field.
Lord MONSON: My Lords, I thank the noble Lord for that rather surprising reply. While acknowledging that the Treaty of Rome may not demand the precise harmonisation of social security benefits, is the noble Lord aware that,

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out of 150 or so countries in the entire world, Britain is the only one to subsidise strikes in this manner? Is he further aware that this practice is not one of long standing but has only been going on for twelve and a half years or so, since August 1966? Would he not agree that this happens to coincide with a period during which this country's standard of living started to decline quite sharply relative to that of other industrialised nations, and cannot certain conclusions be drawn from this?
Lord WELLS-PESTELL: My Lords, I cannot accept what the noble Lord has just said. If he saw the Financial Times on 28th February (which is only a fortnight ago) he would have seen—and I quote just the first paragraph—the following:
"Strikers in Britain receive on average no more State benefit than strikers in most other Western European countries".
Lord SHINWELL: My Lords, may I ask my noble friend whose Answer, if I may say so, I thought somewhat disappointing, whether there is any question of subsidising strikes by providing social security benefits to people who need them? What sort of reply do we give to people who indulge in language of that sort? Leave it to me; I shall reply!
Lord WELLS-PESTELL: My Lords, the principle that the State has the ultimate responsibility for preventing hardship in these circumstances—and I am referring now to the dependants of strikers—has been part of the social administrative law in this country for the past 80 years.
Lord MOTTISTONE: My Lords, would the noble Lord say why he had to quote from the Financial Times for the statistics that he gave? Why have not the Government adequate, reliable and, if one likes it, convincing evidence of the same sort?
Lord WELLS-PESTELL: My Lords, the Government are quite certain that the statement made in the Financial Times is perfectly correct. One of the difficulties in collecting statistics in this matter is that no two countries operate in the same way. In a good many countries social security is given by local authorities and it is very complex to try to get statistics.
Baroness GAITSKELL: My Lords, may I ask the Minister this question: Rather than harmonising, should we not advertise the way we deal with social security during strikes? We are an example to the world on this and we should be proud of it. I absolutely agree with my noble friend Lord Shinwell.
Lord DUNCAN-SANDYS: My Lords, while it might be perfectly reasonable when it is necessary to pay social service benefits during a strike, would it not also be reasonable that those payments should be repaid by the persons who have received them after the strike is over and they are back at work?
Lord WELLS-PESTELL: My Lords, we are continuing a principle which I said a moment or two ago has been in operation in this country for 80 years. It has never been challenged. Successive Governments have accepted that—even the Government of the Party of the noble Lord—and when it comes to strikes it is perfectly clear the striker himself does not get any benefit by way of supplementary benefit. His needs are not taken into account: only his dependants get it.
So far as the single striker is concerned, he gets nothing at all. What is required of him is this: If on a Friday he takes, for the sake of argument, £70 and goes on strike on the Monday, then he has to make that money last for five weeks because his needs for supplementary benefit are assessed at something like £14 per week. If after that period he can show exceptional need—only exceptional need—he can get £10·50 a week in supplementary benefit. In the whole of last year the amount of money which was paid to single men on strike came to only £6,000.
Lord AVEBURY: My Lords, can the Minister say whether any reductions were made in the benefits available to the families of strikers during the Conservative Government's period of office from 1970 to 1974? If the answer to that is, No, is it not important that the people of this country should be informed of any change of attitude by the Conservative party which might have grave repercussions on these families in the event of a Conservative victory at the forthcoming Election?
Lord WELLS-PESTELL: My Lords, we would welcome knowing what the Conservative party policy is on this matter.
Lord SHINWELL: My Lords, if we provide social security to families whose husband or bread-winner happens to be in prison, does that mean that we are subsidising crime?
Lord CARR of HADLEY: My Lords, on the question of international comparisons, could the noble Lord confirm whether or not some European countries confine the payment of such benefits to those involved in official strikes?—which, if that is right, is rather different from the situation in this country. Could the noble Lord confirm whether or not that is right?
Lord WELLS-PESTELL: My Lords, I think this is so, but it is an isolated matter.
Lord BALFOUR of INCHRYE: My Lords, may I put a question to the noble Lord the Leader of the House? The Minister replied to a question asked of him by quoting figures from the Financial Times and based his answer on an extract from a newspaper. Surely any noble Lord who asks a question of the Government asks for the Government reply, and to me it is a completely new precedent that we should start quoting newspapers.
Several noble Lords: Oh!
The LORD PRIVY SEAL (Lord Peart): My Lords, I am rather surprised that the noble Lord should have asked me this. It is quite legitimate for a Minister to use an extract from a paper, a book, or anything if he feels it is necessary to strengthen his argument; but my noble friend answered specifically the question that he was asked.
Viscount MASSEREENE and FERRARD: My Lords, would the Minister not agree that the trade unions ought to take more financial responsibility for supporting the dependants of strikers, and also the strikers themselves? Would the Minister not agree that that would be better than putting all the burden on the State?
Lord WELLS-PESTELL: My Lords, in fact some trade unions do make a strike-
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pay allowance each week. It varies, but I am bound to say it is certainly not adequate for the needs of the strikers' dependants.
Lord MONSON: My Lords, would the Minister not agree that, whatever the noble Baroness, Lady Gaitskell, may have said, the Crossman Diaries revealed that the Labour Government of the day conceded in private that the 1966 legislation has had unforeseen and undesirable effects?
Lord WELLS-PESTELL: My Lords, we on this side, if I may say so, have not always regarded the late Richard Crossman and his views as being acceptable.
Lord TAYLOR of BLACKBURN: My Lords, may I ask the Minister why we have not had an answer from the Opposition Benches as to why, if they believed in a change, they did not operate the change when they were in power?

NORTHERN IRELAND: STUDENT GRANTS
3.18 p.m.
Lord BROCKWAY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what decision has been made regarding grants for sixth formers and 16 to 18-year-old students in Northern Ireland.
The MINISTER of STATE, NORTHERN IRELAND OFFICE (Lord Melchett): My Lords, Her Majesty's Government have decided to introduce, with effect from September 1979, an improved mandatory system of allowances for 16 to 18-year-old students attending full-time courses at schools or institutions of further education in Northern Ireland. The maximum allowance, which will be means-tested, will be £7·50 per week.
Lord BROCKWAY: My Lords, is the Minister aware how many of us will welcome that announcement? Will it not mean that 16-year-olds will stay on

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for their full education when there is a higher juvenile unemployment rate in Northern Ireland than in all the rest of the United Kingdom? Can he also confirm whether the present average grant is now about £2, and will this not increase it by four times?
Lord MELCHETT: My Lords, the present average annual allowance in Northern Ireland is £87 for a full year, and so the new scheme will be a very considerable improvement on what at the moment is a very low rate of allowance in Northern Ireland. Of course, the scheme will be particularly useful in Northern Ireland where there is an exceptionally high level of both unemployment and family poverty. We expect about 5,000 students to be entitled to allowances in the first year and for the number to rise to about 6,500 within three years, which will represent about 26 per cent. of all eligible students in the age group.
Lord BELSTEAD: My Lords, I wonder whether I may ask the noble Lord this question. This will obviously be helpful in the way that has been suggested, but the grants which exist at the moment are discretionary and the grants which the noble Lord has just announced are mandatory. What will be the increased overall cost?
Lord MELCHETT: My Lords, the cost of the existing scheme in 1977–78 was £135,000. The cost of the new scheme, in the first year, will be about £1½ million, and that will rise to about £3 million when the scheme has been going for more than a year.
Lord BLEASE: My Lords, may I indicate to my noble friend—
Several noble Lords: No!
Lord BLEASE: My Lords, may I ask my noble friend whether he is aware of the warm support in Northern Ireland for this scheme when it was announced on 7th March? Can the Minister also indicate whether the monitoring arrangements will include the effect of the scheme on the additional numbers acquiring or achieving educational qualifications, the effect of the scheme on the various projects
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in Northern Ireland under the Youth Opportunities Scheme and the effect of the scheme on educational requirements and recruitment for apprenticeship training?
Lord MELCHETT: Yes, my Lords. I think that my noble friend's remarks about the welcome that this announcement received in Northern Ireland are quite right, and that underlines how important a scheme of this kind is in a region which suffers the problems of poverty and unemployment that Northern Ireland does. The monitoring arrangements are currently being worked out between my Department, the Department of Education in Northern Ireland and the Department of Education and Science in London, who are particularly interested to see what effects this scheme has, given that the existing scheme is virtually of no significance at all. The results of its operation in Northern Ireland will be of considerable interest to LEAs in England and Wales, who are thinking of introducing schemes or are watching the pilot schemes in England. We will certainly take into account the various factors which my noble friend has suggested.
Lord HAILSHAM of SAINT MARYLEBONE: My Lords, since the question relates to 16 to 18-year-olds, and the noble Lord has given a figure, on what percentage take-up in respect of that age group is the calculation based?
Lord MELCHETT: My Lords, as I think I said in a previous answer, we estimate that by the time the scheme has run for three years 26 per cent. of the eligible age group will be receiving grants. That compares to about 6 per cent. of the age group receiving the very low discretionary allowances which are available at the moment.
Lord TAYLOR of BLACKBURN: My Lords, may I ask my noble friend whether the Northern Ireland Board of Education has been fully consulted on this matter, and whether their views coincide with those of the Government?
Lord MELCHETT: My Lords, the five Education and Library Boards in Northern Ireland have, of course, been consulted and the detailed arrangements which it will be for the area boards to implement are

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currently being worked out by a joint working party, made up of representatives of the area boards and my Department.
Lord MOYNE: My Lords, without asking for figures, can the noble Lord say whether there will, in a general way, be some saving in unemployment pay?
Lord MELCHETT: Yes, my Lords. The figures that I have given are the gross cost to the education vote of the scheme. There will, of course, be some considerable savings and, I would add, considerable benefits to the young people involved, who are enabled to stay on at school when they are not currently able to do so.

GIBRALTAR: AIRSPACE RESTRICTIONS
3.24 p.m.
Lord BOYD-CARPENTER: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what amelioration of the restrictions imposed by the Spanish Government on aircraft landing at and taking off from Gibraltar has resulted from their discussions with the Spanish Government.
The MINISTER of STATE, FOREIGN and COMMONWEALTH OFFICE (Lord Goronwy-Roberts): My Lords, as yet there has been no relaxation of the airspace restrictions at Gibraltar.
Lord BOYD-CARPENTER: My Lords, does the noble Lord recall that nearly two years ago his noble friend Lord Oram, answering for the Government from that Bench, indicated that repeated representations were being made about this situation and 18 months ago expressed Her Majesty's Government's indignation? In view of the terms of the noble Lord's Answer today, can he tell us what Her Majesty's Government are going to do about this quite unprecedented interference by a friendly Power in the operation of another friendly Power's airport?
Lord GORONWY-ROBERTS: My Lords, the noble Lord puts the position
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precisely. Successive Spanish Governments have been made fully aware of our view that the airspace restrictions constitute an unwarranted interference with international air navigation, and that the restrictions, in general, impede progress in resolving the Gibraltar problem. My right honourable friend the Foreign Secretary himself saw the Spanish Foreign Secretary at that time last year, and hopes to resume talks at that level with the Spanish Government about this question, as soon as the new Spanish Government has been set up as a result of the recent elections.
Lord MORRIS: My Lords, may I ask the Minister what amelioration of the restrictions imposed by the British authorities on aircraft landing and taking off at London's Heathrow has resulted from discussions with the Spanish Government? Also, does not the Minister feel that Her Majesty's Government somehow put themselves in the position of a man who is caught red-handed in a glasshouse while holding stones?
Lord GORONWY-ROBERTS: No, my Lords. I could not agree with that interpretation of the situation. What is clear is that what has been happening in the airspace above Gibraltar, while not constituting a serious hazard as I understand it from the Civil Aviation Authority, is nevertheless an unwarranted interference with airspace within the understanding of member States of any international air authority. What has been done at Heathrow is in no way comparable with or a counterpart to what has been done at Gibraltar.
Lord HAILSHAM of SAINT MARYLEBONE: My Lords, would the noble Lord, at a suitable moment, convey how disappointed many of us have been from the fact that we had hoped great things of this new régime in Spain, and from the fact that we hope to co-operate with them in Europe in the future, and what a help it would be to Anglo-Spanish relations if improvements could be made in this field?
Lord GORONWY-ROBERTS: My Lords, I think that the noble and learned Lord puts the views of this House and of our country with precision and warmth. There has been a very long-standing,

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historic, friendly relationship between this country and Spain, at least dating back to the Peninsular War, as anybody who visits Spain is reminded from time to time. Of course, our connection with Portugal goes back even further than that. I am sure that the noble Lord, Lord Boyd-Carpenter, would wish his Question to be put and answered within the context and in the atmosphere of the observations just made by the noble and learned Lord, Lord Hailsham.
The Earl of ONSLOW: My Lords, will it not make it very difficult for Spain's accession to the European Community, which we all hope will happen, if there is to be not only this airspace embargo but also the border embargo? It really would be intolerable if these embargoes were to go on between two co-members of the European Community, even though it is possible to understand Spanish feelings about the Rock of Gibraltar.
Lord GORONWY-ROBERTS: Yes indeed, my Lords. We have repeatedly said that we do not link the two issues, one with the other. We are strongly in favour of the accession of democratic Spain to the European Community. We have supported this, often in a leading position. At the same time, we find it inconceivable that, as a fellow member of the Community, any Spanish Government could continue to treat Gibraltar and the use of its airspace in the way that, unfortunately, Spanish Governments have done in the past and are doing now.
Lord BALFOUR of INCHRYE: My Lords, the Minister advisedly used the term "serious hazard". May I ask him this question: Would the Government accept that, though the several operators into Gibraltar all take the maximum possible precautions, there are meteorological conditions which make it a hazard? I shall not say that it is serious, because all hazards are serious. Therefore, will the Government continue to press, so that British aircraft can use Gibraltar in all weather conditions with the maximum obtainable safety?
Lord GORONWY-ROBERTS: Indeed, my Lords, I agree entirely with the two points made by the noble Lord, who is himself a former Air Minister. I am advised that in normal circumstances the
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prohibited zone does not per se constitute a danger. But we have been reminded that there is always a hazard in the air, particularly when weather conditions are not favourable, as sometimes happens in the Gibraltar airspace. There have been a number of infringements by British aircraft, and the Spanish authorities have complained to us about them. We have replied that we regard the restrictions as unwarranted, and in any case I am sure that I am within the opinion of the House in saying that when those restrictions need to be infringed in the interests of maximum possible safety, they should be.

WATER CHARGES (LAUNDERETTES) BILL [H.L.]
3.30 p.m.
Baroness PHILLIPS: My Lords, I beg to introduce a Bill to make provision for the basis on which water authorities shall make charges in relation to the discharge of effluent from launderettes; and for purposes connected therewith. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read 1a.—(Baroness Phillips.)
On Question, Bill read 1a, and to be printed.

INDUSTRY BILL
Brought from the Commons endorsed with the certificate from the Speaker that the Bill is a Money Bill within the meaning of the Parliament Act 1911; read 1a, and to be printed.

HOUSE OF COMMONS (REDISTRIBUTION OF SEATS) BILL
Read 3a.
Lord MELCHETT: My Lords, I beg to move that the Bill do now pass.
Moved, That the Bill do now pass.—(Lord Melchett.)
Lord BELSTEAD: My Lords, I welcome the passage of this Bill, remembering that it puts into effect the recommendations of Mr. Speaker's Conference

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and gives to Northern Ireland, as nearly as can be calculated, the correct representation in another place, taking into account the rest of the United Kingdom. I say this only because our previous proceedings on the Bill occurred rather a long time ago, and I wanted to make it perfectly clear that this Bill has the enthusiastic support of this side of the House.
Lord MELCHETT: My Lords, may I respond by thanking the noble Lord and his colleagues for their assistance in getting the Bill through this House in very good time and by placing it on the record that the Bill has been introduced for the reasons which the Government have made clear on a number of occasions. Following the decisions that were taken on devolution to Scotland and Wales, clearly it was impossible any longer to justify Northern Ireland's having far more people per constituency than other constituencies in the United Kingdom have. Having had the opportunity in the last day or two to read some of the recent debates in another place and to see the attitude which the Official Unionists have adopted both to myself and to my right honourable and honourable colleagues, I shall be interested to see whether the Press predictions are right: that once this Bill is passed some kind of pact which the Government are alleged to have made with the Unionists will come to an end, whether they will start opposing what we are doing, and what effect that will have when one considers how opposed they appear to be to the Government's policies. I am very grateful to the noble Lord for his help in getting the Bill through.
On Question, Bill passed.

CARRIAGE BY AIR AND ROAD BILL [H.L.]
Baroness LLEWELYN-DAVIES of HASTOE: My Lords, I have it in command from Her Majesty the Queen and His Royal Highness the Prince of Wales to acquaint the House that they, having been informed of the purport of the Carriage by Air and Road Bill, have consented to place their interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Bill read 3a; an Amendment (privilege) made; Bill passed, and sent to the Commons.

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

KIRIBATI BILL [H.L.]
3.38 p.m.
Lord GORONWY-ROBERTS: 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 Goronwy-Roberts.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD GREENWOOD OF ROSSENDALE in the Chair.]
Clause 1 [Independence for Kiribati]:
On Question, Whether Clause 1 shall stand part of the Bill?
Lord HALE: I hope that the Deputy Chairman of Committees will not put questions too quickly. We have been promised a serious discussion, and I find myself at once in something of a Catch 22 position. When my noble friend Lord Goronwy-Roberts announced during the Second Reading of the Bill that a representative of the Government would go out for further discussions, it was not then contemplated that he would go out so soon. However, he went out very soon. Then a Private Notice Question was asked as recently as last Tuesday by the

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noble Lord, Lord Elton. I apologise to the noble Lord for not having given him notice that I was going to mention his name, but it would have been ridiculous to do so in view of the fact that he sits on the Front Bench and knows about everything before I do. It is quite impossible to give notice to Back-Benchers when a Private Notice Question is to be asked. One of the reasons for asking such Questions is urgency, so one cannot give notice to Back-Benchers. The result is that I walked into the Chamber and heard a Private Notice Question being asked about the recent visit of Mr. Evan Luard to Rabi Island to pursue discussions primarily with the Banabans and with other interested parties, about which we have had very little information and some confused newspaper reports.
The noble Lord, Lord Elton, put four questions in one, apologising gracefully for doing so. One or two other questions were also put. Unfortunately, while a former Under-Secretary of State for the Colonies who had visited Ocean Island while he was a Minister in the Labour Government was on his feet, my noble friend the Leader of the House intervened. He always performs his functions with the utmost possible courtesy and geniality, but sometimes he has to intervene as Ayatollah, and take diciplinary measures. He is apt to find that in the course of his battues the birds always fall behind his back—a somewhat unusual exercise, and one understands it. One does not want to be craning one's neck all the time. I had to look at Back-Benchers to find out whether they wanted to speak. My noble friend Lord Shinwell, at the age of 95, always seems to get over these difficulties with aplomb and with success. We then began to wonder how we could have a full discussion of the matter during the Committee stage. There are only half a dozen clauses and most of them, however important, provide no details for discussion.
My noble friend Lord Brockway tabled an Amendment to Clause l and then decided—on the whole, I think, sensibly—that it was pursuing a somewhat unproductive aspect of the matter, and therefore I had hoped that it might be possible to persuade the noble Lord, Lord Goronwy-Roberts, that we should have a fuller and wider discussion in which we should be
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able to present our views on Mr. Evan Luard's visit and on the Banabans' obvious and manifest determination that they wanted their home back.
There has been a good deal of confusing information on this. I am not suggesting that it has come from the noble Lord but I do think he is taking the attitude that this is a good Bill and he does not want it to be interfered with. Of course, if the Banabans were not included there is no doubt that would be a major Amendment, and I know that my noble friend Lord Brockway has tabled an Amendment to a later clause which would have that effect. I rather think that the noble Lord, Lord Goronwy-Roberts, is going to say that we can have a full discussion on the later Amendment and if that be so I have no very special desire to pursue the matter, but perhaps I may just say two or three words now.
My noble friend was mentioning the question of entrenched clauses, and entrenched clauses were part of what Mr. Luard went to put forward. I listened attentively during the fairly full Second Reading debate and I ventured to say that I was a little apprehensive, on previous precedents, about going over to have a discussion unless there was something radically new to discuss. Mainly, Mr. Evan Luard went over to discuss two or three propositions, all of which looked attractive on paper but all of which, however, would take place only if this Bill including Banaba in the new Commonwealth State of Kiribati were passed. Indeed, he has always said that in his opinion this is a very good Bill, that he wants it to be passed as soon as possible and that it would be easier to deal with some of the problems afterwards.
There is not a Member of this House who does not know that whichever Government is in power, promises made in futuro to be fulfilled after an Act has been passed putting an end to any legislative process, are apt not to be fulfilled. Often it is not the fault of the Government. We were responsible for the security of Banaba and a world war put an end to it: one could hardly expect the Government to try to defend Banaba when we were not even in a position to send forces to Australia to defend that country, facing the possibility of invasion for the first time. Perhaps that was saved in

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the end by the vigilance of the indigenous inhabitants.
The second point I wish to make is that entrenched clauses have never worked—in fact entrenched clauses cannot work. I remember going through the South Africa Act of 1908 and anyone who likes to read that debate as a matter of curiosity will find that every British Minister and almost every British speaker in that debate, speaking with obvious and manifest sincerity, said that they had received assurances and that they had to neglect any attempt to protect the vast majority of indigenous inhabitants of the territory who were not so well educated or so well trained as the European inhabitants. They went on to say: "We have received the most abundant assurances that these people will make a steady and progressive advance to full freedom and equality within a reasonable period". That was 71 years ago. The situation today in that respect is little different. There was, of course, the matter of Angola.
I will not pursue the matter and perhaps I should apologise for even pursuing it so far. I am sure that my noble friend would not now contest the fact that the Banabans have pursued this love, this desire, this passion to go back to Ocean Island and that today it is the dominating motive of them all. For this reason or that, they have never taken part in any of the material discussions about this question. The promised meeting with Commonwealth Ministers was never held. The only thing that occurred was an agreement in 1947, which was reviewed in the long judgment of the Vice-Chancellor, who of course found that there was a voluntary agreement, and there was no option but to do that because there was no evidence to the contrary. But he wondered how the Banabans had been persuaded in 1947—which was a difficult year—to accept agreements which were so obviously detrimental not merely to their wishes but to their interests. They had granted mining rights to a phosphate company for this whole period. In the general discussion I should like to refer more fully to Mr. Luard's visit and what has transpired.
Lord GORONWY-ROBERTS: Perhaps I may intervene briefly and say I am most grateful to my noble friend for what he has
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said. He is quite right of course: there will be ample opportunity to discuss the matters which he has mentioned now in relation to the Amendment to Clause 7 tabled by my noble friend Lord Brockway. If I may try to assist the Committee I suggest that we might take the clauses of the Bill seriatim in the normal way until we come to Clause 7, which is the clause at issue, and then when my noble friend Lord Brockway, moves his Amendment we can have the fullest discussion of the issues which I know a number of noble Lords, like my noble friend Lord Hale, wish to raise during this Committee stage.
Lord HYLTON: I do not want in any way to pre-empt the Amendment standing in the name of the noble Lord, Lord Brockway, but perhaps I may just welcome some remarks which were made by Mr. Evan Luard in another place on 12th March. First, he said that the matter of Ocean Island is at the present time the responsibility of the British Government. He went on to say that, in the final resort, decisions on this matter rest with this Parliament. It would appear that when he was sent on this last-minute visit to the Pacific his instructions and terms of reference were very limited indeed, with the result that he was not able to come back with any solution to the problem.
It appears also that Mr. Luard will be reporting in greater detail to Her Majesty's Government, and I would express the hope that he will go very much beyond his instructions in that report, because while it may appear that we are dealing with the affairs of one single parish I do believe it is very important that this Parliament gets the matter right. If the Government will not listen to the voice of the Banaban people, how can they possibly expect the Government of Guatemala to listen to the voice of the people of Belize? How can they expect the Government of Argentina to listen to the voice of the people of the Falkland Islands? How can they expect the Government of Spain to listen to the voice of the people of Gibraltar?
Lord GORONWY-ROBERTS: I hesitate to intervene once more, and perhaps hold up the proceedings of the Committee, but I do appreciate everything that the noble Lord has said. I would hope very much to listen to all views on this matter when the time comes

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for the Amendment which is utterly pertinent to this point. In order to ensure that we have ample time to discuss that important Amendment, I would suggest that we deal first with the first six clauses, which are very much common form, in the usual manner of your Lordships.
Clause 1 agreed to.
The PRINCIPAL DEPUTY CHAIRMAN of COMMITTEES (Lord Greenwood of Rossendale): I think it would probably be for the convenience of the Committee if we took Clauses 2 to 6 together
Clauses 2 to 6 agreed to.
Clause 7 [Interpretation.]:
4 p.m.
Lord BROCKWAY Lord BROCKWAY moved the Amendment:
Page 4, line 37, at end insert ("other than Ocean Island").
The noble Lord said: I rise to move my Amendment to Clause 7. I have given very careful consideration to the plea made by my noble friend Lord Goronwy-Roberts in the exchange of questions on Monday, but I feel that the issue raised in my Amendment is one of such deep principle that I can do no other than press it today. I want frankly to recognise that, within the acceptance of becoming a part of the new Gilbert State, the Government have done everything to maintain Banaban interests. In all my knowledge of colonial history I have not known such concessions as were announced by Mr. Luard on his recent visit: first, an island council for the Banabans; second, an international commission to keep the situation between Banabans and Gilbertese under review; and third, a treaty between Gilbert State and one or more powers to safeguard the rights of Banabans. I suspect that these quite unprecedented provisions in the independence of any country were largely due to the contribution of my noble friend Lord Goronwy-Roberts. I want to pay tribute to him, not only for his dedication but for the skill with which he elaborated these new undertakings.
But I want to say this. The fact that the Banabans have declined the comprehensive safeguards proposed emphasizes
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how unswervingly they hold to the conviction that they cannot become a part of Gilbert State. I think Mr. Luard when he met the Banaban Council had no doubt about that. I do not propose this afternoon to recount the unhappy story of the Banabans. It was recorded by the vice-chancellor in the High Court of Chancery and it is there as an historic judgment. I propose to deal only with the constitutional issues raised by the Amendment. This means a brief historical reference. Until recently there has been no consultation with the Banaban people about their future and their fate. When the Gilbert Islands and the Ellice Islands became a part of the British protectorate in 1892 it was with the agreement of the indigenous peoples. Ocean Island was not included in this protectorate.
The Banabans remained an autonomous community until 1910. When in that year, because of the discovery of phosphate deposits, Ocean Island was annexed by the British Government as a colony, this was done separately from the Gilbert and Ellice Islands protectorate. The constitutional failure which persisted began. There was no consultation with the Banabans about their loss of independence. I repeat, Ocean Island was not included in this protectorate. Annexation was in 1910, and then there was no consultation with the Banabans about their loss of independence. In November, 1915, after their representatives had been consulted and agreed, the Gilbert and Ellice protectorate was ceded to the Crown as a colony. Ocean Island still was not at first included, but a few weeks later, in January 1916, Ocean Island was made a part of the colony of the Gilbert and Ellice Islands. Again, that was done without any consultation with the Banaban people.
During the Second World War the Japanese occupied Ocean Island and its people suffered forced labour and mass executions. At the end of the war, because of the mining operations which were devastating Ocean Island, the Banabans who remained alive agreed to make Rabi Island in the Fijis a second home. But they did not give up their right to return to Ocean Island. In 1947, the British, in a Statement of Intentions, recognised the Banabans' ownership of and right of residence on Ocean Island.

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I wish to pay tribute to the sincerity and hospitality of the Fiji Government and their people. Because of that, the Banaban people themselves have willingly become Fijian citizens.
An opportunity of a settlement was missed in 1975. On the invitation of the Gilbertese Government, the Banabans and the British Government, the Prime Minister of Fiji brought together Gilbertese and Banaban representatives. They both agreed that there should be a meeting of all concerned, including the Governments of Britain, Australia and New Zealand—as partners in the British Phosphate Commission—to discuss not only finance but also the constitutional future of Ocean Island. That meeting was never held. The Governments of Britain, Australia and New Zealand did not respond. The reason why the initiative failed is not clear.
The exploitation of the phosphate deposits in Ocean Island will be finished in two years. The Banabans have begun to return to the island with the colossal task of restoring an island which has been reduced to ashes from one of fertility and beauty. Against their will the British Government and the Gilbertese have now decided that Banaba shall become a part of the new Gilbert State. I acknowledge that this time there have been discussions, but only within the imposed decision which the Banabans in principle reject.
During our debate on the Commonwealth I said that I did not think it was possible for small islands to have valid independence. The Banabans do not propose separate independence. Instead, they propose that they should become an associated State of Fiji, with which they have such happy relations. The objection is raised that Fiji is 1,400 miles away while the Gilbert Islands are only 200 miles away. But distance has not been regarded as an obstacle to association. Cook Island in the Pacific is 2,000 miles away from New Zealand, but Cook Island has been satisfactorily administered as an associated State. Much greater distances have divided Britain from its associated States in the Caribbean.
I suggest that the separation of Ocean Island from the Gilberts is as desirable for the Gilbertese as it is for the Banabans.
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It will be disastrous for the new Gilbert State if it is confronted, at the beginning, by the resistance of the Banaban people on Ocean Island. All of us wish the new Gilbert State well. Its independence is not due to begin until July. I submit that there is time for discussion to resolve the problem.
In a letter to my noble friend Lord Goronwy-Roberts, the Prime Minister of Fiji has expressed the hope that it is not too late for the British Government,
"to consider pursuing further dialogue with and between the Gilbertese and the Banabans in order to reach a Pacific solution which is acceptable to all".
I profoundly hope that the British Government will respond to that suggestion. I hope that not only for the Banabans, not only for the Gilbertese, but for peace in the Pacific as a whole. That will be impossible if Ocean Island is now included in this Bill. I beg to move.
4.7 p.m.
Lord SHEPHERD: I have not spoken in your Lordships' House for some time and I certainly had not expected to speak this afternoon. However, in the light of the Bill and the speech that my noble friend Lord Brockway has made, I hope that I may be allowed to say a few words because, as a former Minister of State in the Commonwealth Office, I was not only involved in the Banaban problem and understood to a great extent their feeling at the loss of what they regard as their homeland—Ocean Island—but have been to the beautiful island of Rabi within the Fiji group and have had many dealings with the leaders of the Banaban people.
I recommend to your Lordships that the Amendment should not be accepted, for a different reason from questions of the past and the fully understandable attitude of the Banaban people towards what they see as their homeland. I do not believe that anyone who went to Ocean Island today, after the devastation of the phosphate extraction, could possibly conceive that that island could be anything other than a name. It certainly does not in any way offer a home for the Banaban people.
I appreciate that the reasons why Ocean Island was brought within the Gilbert and Ellice Islands were administrative, and in later years, of course, the earnings from the extraction of phosphate

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from Ocean Island were a major contributory factor to the way in which successive Governments and successive Secretaries of State of the Colonies sought to raise the standard of living of the people within the Gilbert and Ellice Islands. I am sure that no Secretary of State who has had any responsibility for those islands could in any way feel at rest in his mind, not only about what was achieved but about the future struggles of those two new independent countries, as they will be, as they face their economic future. They are very distant; they have very little to offer. One is very concerned—as I am sure is my noble friend Lord Brockway—about the sort of future that, as a consequence of education, will be available to the young of those two new countries.
I ask the Committee not to accept the Amendment of my noble friend for a completely different reason. The Banaban people were brought to the island of Rabi immediately after the war, when they had been dispersed by the Japanese. A decision was taken that they should be brought together and should be found an island home. I simply say to my noble friend that I cannot remember a more lovely island than the island of Rabi, with its extraordinary potential, particularly from the sea. Fish and lobsters are there for the gathering if the islanders are only prepared to direct their energies that way. I do not wish to be critical of my friends, the Banaban people, but on one occasion I was the only person easting a lobster; the rest of my Banaban friends were eating tinned pilchards. I felt that they did not have quite the same appreciation of the quality of life that was available to them.
However, the Banaban people now live on the island of Rabi which is part of Fiji. Their future and the future of their young people is being absorbed within the independent State of Fiji. I think that my noble friend Lord Brockway has already hinted at the extent to which the Prime Minister of Fiji and the various civil servants involved in the structure of that country have gone in order to incorporate Banabans into the life, the concepts and the future of Fiji. So long as Ocean Island remains a festering sore—an abstract aspiration—I do not believe that the Banaban people will seize the opportunities that exist on the island of Rabi or in the independent State of Fiji.
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I appreciate the reasons why my noble friend has moved his Amendment, but it is accepted I believe that in the long-term he will not have provided a service to the young and to future generations of the Banaban people. I believe that the only hope of the Banaban people lies within Fiji and in being treated, like all the other varying races that exist in Fiji, as Fijians; and in taking all the opportunities that that wonderful country offers. If I may say so, it is not only one of the most friendly but one of the most democratic of all Governments and peoples. For that reason, and that reason alone, I oppose the Amendment.
The future of the Banabans lies in Fiji, but so long as there is the concept that possibly one day they may return elsewhere, the Banabans will never settle down. They will not contribute to Fiji and I believe that in the end they will be the sufferers of this dream, this aspiration. I wish the Banaban people all success and I have no doubt, having searched my mind many, many times, that their future lies as real citizens, men and women, devoted to the future of Fiji.
4.16 p.m.
Lord McNAIR: I should like to preface the few remarks that I want to make directly on the Amendment of the noble Lord, Lord Brockway, with a statement of a slightly personal nature; however, I think it can be included at this stage. It appears that at least one prominent supporter of the "justice-for-the-Banabans" campaign has so understood my Second Reading speech as to find in it slurs on that campaign, and even accusations of irresponsibility. I have studied what I said and have re-read it until I am sick of the sight of my own words. I am still puzzled and surprised that anything I said came to be interpreted in that way. Nevertheless, it has been so interpreted by an honourable man acting in good faith, and I ask the Committee's permission to put this matter straight. I should like to make it clear beyond doubt that I intended no aspersions on the integrity, sincerity or responsibility of any of the Banabans' advisers. I disagree with some of them over the best future political status for Ocean Island, but that is a matter of opinion. However, my disagreement does not prevent me from greatly admiring the dedication and tenacity of those campaigners.

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I shall now turn to the Amendment, and I shall be brief. It is clear that the Banabans are not asking for the obvious impossibility of immediate sovereign independent status; they are asking to be an associated State. However, when we were discussing Dominique and St. Lucia we were reminded that associated States are very nearly independent—they are independent in everything but foreign affairs and defence. We were also reminded that it was always intended that this form of near-nationhood should lead to sovereignty. It seems to me that this is not strictly possible for Ocean Island in the foreseeable future.
If this Committee were to pass the Amendment, it would imply a lack of confidence in the Government of the Gilbert Islands, which would be a very sorry statement to come from this Committee. They have given the most amazing assurances, and despite what the noble Lord, Lord Hale, said—in which, of course, there is an enormous amount of truth—I believe that not to trust the Gilbert Government would be the worst possible way to give independence to the Gilbert Islands. There is also the argument of fragmentation. I shall not elaborate on that because I expect that the noble Lord, Lord Goronwy-Roberts, will touch on it. However, further to fragment a whole political fabric of the Pacific cannot be in the interests of peace and, therefore, cannot be in the interests of the inhabitants.
When I came to list the arguments in favour of the noble Lord's Amendment I could find only one: that it is what the Banaban people want. That is not a negligible argument. But surely we found at Versailles, if not before, that the trouble about elevating self-determination to a sacred principle is simply that it must stop somewhere, and this would seem to me to be self-determination taken ad absurdum. My noble friends on these Benches will vote entirely as they see fit on a free vote. I shall, with a heavy heart, feel compelled to vote against the Amendment.
4.20 p.m.
Lord HOME of the HIRSEL: I wonder whether I might add a word to
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that which was said by the noble Lord, Lord Shepherd. Clearly the Amendment moved by the noble Lord was moved in the most honourable spirit and from the highest motives, but I am afraid that I feel exactly the same as the noble Lord, Lord Shepherd, that if we were to go along with the Amendment we should be misleading young Banabans into believing that there is a future for them on Ocean Island. I just do not believe that to be true. I think they must, as the noble Lord said, find their destiny in association with Fiji. Looking ahead for the next 25, 50 years, that seems to me to be the only possible advice we can give to these people. I understand the noble Lord's motives, but I am afraid, if he has a Division, I shall have to go into the Lobby against his Amendment.
Lord HALE: I am afraid that the distinguished and respected former Prime Minister, who has just spoken with all the authority of his great knowledge and station, has been possibly misled by some misunderstanding arising from the way my noble friend Lord Shepherd put his case, because he was speaking entirely in favour of our Amendment and entirely against this present Bill. He started with the opening words that the Banabans cannot live on Ocean Island. There is no room there. What is left is a mixed-up mass of chewed-up phosphate and mud, and they cannot live there.
The noble Lord knows so much about this, and he has played an important part in this and made an admirable speech, but not one with which I entirely agree in connection with the previous negotiations. He has not really gathered that if the Banabans cannot live there they have to go on living indefinitely in Rabi. Indeed, that is what he said. They will live in Rabi as part of the Fiji Islands. But this is not a Fiji Island Bill; this is a Kiribati Bill.
In point of fact what the noble Lord has said is realised by the Banabans, and their aspiration is completely supported, and was completely supported, by the Governor of Fiji who, through all this, has been spoken of by everyone who has participated with the utmost respect as a man who is passionately anxious to see justice done and who, following Mr. Evan Luard's visit, made a full statement. I think my noble friend Lord Shepherd

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must have missed part of the Second Reading debate—and that is not a crime—because we accepted the proposition that Ocean Island must be a terrible mess; that Ocean Island has to have something done. The very valuable suggestion made during that debate from, I think, the noble Lord, Lord McNair (or, if not from him, from the noble Lord behind him who also made a valuable contribution in that direction), was that some help should be given to try to make Ocean Island, or part of it, inhabitable, with perhaps the assistance of one of the adjoining nations to make it so. But for the moment there is no question that the Banabans anticipate going on living under friendly guidance. Let us remember that the island is theirs. Rabi was bought with their money. It was bought out of accumulated funds for their benefit, and the Governor of Fiji does not dispute that at all.
The result is of course that the Banabans say, "Ocean Island is our home. It always was our home. We would like to resettle there. We cannot resettle there if this Bill goes through, because, if one cares to read some of the provisions of the conference, we become Kiribatis." There are elections by Banaba to the ancient advisory council of the people of Kiribati. There are powers for the Kiribati to send people to Ocean Island, and so on.
It is not a question of not trusting the Gilbertese. The Gilbertese have been the victims twice. The Ellice Islands were detached from them, and re-emerged from the ocean as Tuvalu, and Tuvalu is now, we are told, a Commonwealth State. How it became a Commonwealth State, and how it stops a Commonwealth State, I do not know. I apologise for not having taken sufficient interest in that matter. I took an interest in this matter at the last moment. I did not come in as an advocate. I came in because I was asked personally by Sir Bernard Braine to look through the papers impartially, and I did. There are a lot of papers to look through. I tried to make myself familiar with them.
So for the moment it is the Banabans' intention to perhaps send off a detachment to Ocean Island to survey it. In point of fact, they know that they will probably not be able to get on Ocean Island until the phospate is all cleared
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away. It is not much use starting to make a new island of it until it is cleared away. Phosphate has dominated these discussions from the start. The Banabans have lost £25 million worth of phospate. Offers were made—very generous offers in the circumstances. They lost the case on technical points, but the Vice-Chancellor pointed out the merits of the matter.
I should just like to put my version of two small errors that arise on this. My noble friend Lord Brockway gave a summary of the history of the case nearly to date. I am not correcting him, I am adding two points that were not dealt with but which may be important. I think it was said by the noble Lord, Lord Goronwy-Roberts, and no doubt correctly from his point of view, that Ocean Island was discovered in 1804 by a British ship named "Ocean", and became called Ocean Island. Of course in the ordinary terminology of English history, that is it.
But the Banabans were there. They had been there for 200 or 300 years living on an island paradise in one of the most wonderful, fascinating areas of the world. As I came along today from Dulwich, from Sydenham Hill by British Rail via Victoria via the Tube, after about 70 or 80 days of intense cold, I began to think how wonderful life must have been in those days. They have ample fish. They have not got a varied diet, but I cannot afford to buy fish nowadays and I am very fond of fish.
I have found, living in poverty—I say this quite seriously how little one misses if one systematically gives up the petty luxuries. The Banabans do not have a club and I do not have one now, and I do not miss it. I gave up my dining parties and thought that on the whole I was a dashed sight better off in health, temper and in every other way. The one advantage I have, of course, is that of first-class medical treatment in this country if I need it, and I do, though there is some sort of hospital on Ocean Island which was erected by the phosphate company.
According to the experts, the Banabans have been there since about 1450, although the experts still argue about which particular one of the struggles in the islands drove them there; but there is quite a

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controversy as to whether they are Melanesian, Micronesian or Polynesian. The one thing they are agreed on is that they are not Gilbertese and never were, and the distance to Ocean Island from the Gilberts makes it quite impossible in those early days for there to have been any relationship.
Ocean Island is their home. One may say it is a rum home and that they have not been there for all these years, but they saw their ancestors, their predecessors, perish—pretty well all of them—and those who escaped from the Japanese dispersed all over the place, and we made the wise provision of buying Rabi for them and letting them settle there. But the Bill does not let them stay on Rabi; it will do precisely the reverse. If they were to stay on Rabi there would be no argument about fragmentation. They are 1,400 miles from Ocean Island. As I understand it, the Banabans want at least to have a chance of taking up their home again, of rebuilding it and of living there. Is it so difficult for us to understand that desire? Can we not understand them? I found in Oldham that I ate tripe in a different way; they were apt to eat it cold, which I think is quite dreadful. But they were very nice people with many virtues and I doubt very much whether that is any test.
According to my noble friend, the Bill is to pass straight through and force them into becoming part of Kiribati, and Kiribati does not include Rabi Island. The Minister will no doubt say that the Prime Minister of Fiji will come to an agreement, and I am sure he will; indeed, he has made that clear. But I hope the House will forgive me—I hope not to speak again on this subject today—if I say what happened. For one reason or another, since 1947 the Banabans have had all decisions about them taken in their absence. The Prime Minister of Fiji, the right honourable Ratu Sir Kamisese Mara, made a statement to the Fiji House of Representatives after Mr. Luard's visit.
It is unfortunately the case that Mr. Luard's reception was very similar to a former junior Minister's reception in Anguilla; they would have none of it. Ratu Sir Kamisese Mara set out three proposals—my noble friend explained them—and he said:
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"As far as the Government of Fiji was concerned, I told Mr. Luard that we could not remain insensitive to what the Banabans feel strongly to be just and fair. As island peoples, we are all extremely sensitive to our homeland and heritage. We have never submitted ourselves to be ruled or governed by outsiders. As to the possibility of Fiji taking part in international arrangements … I made it quite clear to Mr. Luard that the Government of Fiji will not accept a role which would involve having to choose between our Banaban and Gilbert Islands friends. It was Britain which had assumed sovereignty over Ocean Island. It is Britain which should accept full responsibility for the constitutional future of Ocean Island. In fact, it is quite unfair of Britain to be coming back to ask for the help of the Government in Fiji when it had ignored earlier proposals I had put to it with the full agreement of both the Banabans and the Gilbertese".
That, of course, is a reference to two days of discussion and the proposal that there should be a conference with the participation of the three Commonwealth Powers, but the meeting was never held, and I quote him on that:
"This meeting was never held. It was ignored by Britain and the other partner governments in the British Phosphate Commission, although it was agreed to by both the Banabans and the Gilbertese. Meanwhile, the Banabans were excluded from the Constitutional Conference to discuss self-government for the Gilberts and were invited only as observers to the Constitutional Conference held late last year in London to discuss arrangements for the independence of the Gilbert Isalnds".
Those who care to read the White Paper will see there were manifest detailed provisions regarding the Government and nationality of the Banabans. He went on:
"The Government of Fiji, therefore, fully understands and sympathises with the Banabans in the position they have now taken. I told the British Minister that we in Fiji had inherited from Britain a sense of justice and fair play. In the Government's view, the best approach for Britain to take in order to avoid a continuing unhappy situation in the Pacific is to get the Banabans and the Gilbertese talking to each other again in the hope that this will produce a just and fair solution—a Pacific solution which will be acceptable to all. Finally, I did volunteer a statement that the relations between the Banabans and the Gilbert Island people will probably change by this time next year when phosphate mining ceases and the Gilbert Islands Government has no further interest in Ocean Island or Banaba. The Minister stated that the United Kingdom cannot support separation of the two countries as they are of one race and culture. I pointed out that the same can be said of the citizens of the United Kingdom".—
That is almost a special message to the noble Lord the former Prime Minister who intervened—
"Yet a good proportion of the Scots want separation and furthermore the Scots alone were given the right to decide …".

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There was no question of the English voting on devolution to Scotland; the Scots themselves were to determine it. There was no question of any other part of the area coming in. It may well be that views will alter, but that as I understand it is the position.
It was said that Banaba is now worthless, but the people say, "It is the home of our ancestors. If it is worthless, we want the use of it." There are other opinions. The place could be made habitable and could be worth preserving, but that cannot be done in association with the Gilberts; they have not the resources. We discussed this matter on Second Reading, and, if I remember rightly, my noble friend Lord Goronwy-Roberts thought that it was a very good suggestion. I know that his habitual courtsey sometimes makes him happier to be agreeing a little more fully. He always speaks with such courtesy. I do not wish for a moment to impute the slightest misunderstanding about this, but I think that we persuaded him a little on the question of whether the island is worth preserving. But for the moment the Banabans cannot be forced into association with the Gilbertese while they are living on Rabi in the Fiji Commonwealth, under the Fiji Commonwealth and on land which has always been part of Fiji. Rabi has nothing at all to do with the Gilbert Islands—it never has had—and the Banabans must, according to my noble friend (and I think he is probably right) go on living on Rabi for a time. They will certainly have to until phosphate mining ceases. Is that not really a sad situation in which to say, "We are going to force you into an alliance for which we have already made the terms and the rules, and we will try to be generous to you in terms of money, but we have not yet really quite decided"? That is their fault, in the sense that they sent a refusal for the time being on perfectly understandable grounds.
Although the Amendment may appear to be destructive, it is really the only effective way in which we can enable the Bill to return to your Lordships' House for reconsideration after further steps have been taken and explanations given. That is one of the reasons why I support the Amendment. The second reason is that I consider that there is involved here an act of justice which ought not to be denied.
4.45 p.m.
Baroness ELLES: The Amendment goes to the heart of the matter which we are discussing in relation to the Bill, and I am sure that we are all grateful to the noble Lord, Lord Brockway, for having given so many of your Lordships the opportunity to make very full statements of your views on this crucial matter. We in your Lordships' House were very well aware of the grievances of the Banabans and the matter was fully and fairly discussed on all sides during the Second Reading. Therefore I do not want to go over all the ground again and so take up your Lordships' very valuable time.
However, I wish to take the opportunity from this Box not only to thank Her Majesty's Government for having answered our request that a Minister should go to the area to discuss means of settling this very difficult problem, but also personally to express our thanks to Mr. Evan Luard for having undertaken this very difficult and complicated journey and for having returned as quickly as he could. In this connection, I personally thank the noble Lord, Lord Goronwy-Roberts, for having agreed at my request to postpone the Committee stage of the Bill until after the return of Mr. Luard.
However, having said that, we on this side of the Committee have certain difficulties which in fact were touched upon by the noble Lord, Lord Hale. One of the difficulties is that Mr. Luard returned only three days ago, and has not yet made a full Statement to another place on this vital issue. I should like members of my Party in another place to be able to question Mr. Luard very closely on all that he did during his days in the Pacific before I personally come to a conclusion on the matter. I work very closely with my colleagues in another place, and they cannot take any decision until they have heard Mr. Luard make a full Statement on the matter and have questioned him.
The Amendment raises matters far beyond financial, political, and ethnic questions. It also includes aspects touching on international relations at world level because it will have major consequences if it goes through. With regard to the ethnic question, the noble Lord, Lord Hale, gave his opinion regarding the origin and the race of the people of

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the Banabans. My attention has been drawn to a sentence of the speech that I made on Second Reading, as reported at column 1608 of the Official Report, referring to a learned anthropologist, Prosfessor Strathearn. I understand that there has been some misunderstanding about what I said. I personally did not have an opportunity to speak to the professor. I repeated what I had understood, through a third party, was his view, and I request permission to withdraw the sentence of my speech which begins:
"I have been given to understand …"
and concludes:
"of the same race as the other Gilbert Islanders".
I feel that as Professor Strathearn is a learned anthropologist I do not want to commit him in any way without his having had an opportunity to give his own definite opinion on the race of the Banabans. The remainder of that paragraph of my speech was slightly misleading in the way in which it was printed in Hansard. Of course I am not imputing any blame to Hansard regarding the passage where I went on to say:
"They share the same Gods, the same language …".
I did not attribute that to Professor Strathearn. I should like to make that perfectly clear, so that there is no misunderstanding as to his professional opinions. If he was upset in any way by a misreading or misunderstanding of my speech I unreservedly apologise to him.
I wish to put a number of questions to the Minister because not only has the other place not had an opportunity to question Mr. Luard on his visit, but the Statement by the noble Lord, Lord Goronwy-Roberts, regrettably did not make it entirely clear whether he was merely indicating certain ideas that the Government had as a result of Mr. Luard's visit, or whether he was making firm proposals that will be taken up when the Bill comes into force after Royal Assent. I gave notice to the noble Lord that I would be asking certain specific questions to which we would be grateful for answers.
The first question I should like to ask the Minister is in relation to the position of Fiji. In your Lordships' House on 13th March the Minister indicated that the Prime Minister of Fiji had made
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clear his wish not to choose between his Banaban and Gilbertese friends. This is a very understandable position. Nevertheless, I think that possibly the Minister might be able to tell us whether this means that Fiji will not be involved in the constitutional future of the Banabans. Does this mean that Fiji will not be a party at any time in the future to a treaty arrangement to safeguard Banaban rights, or to an independent commission to review the safeguards for the Banabans? If the Minister could give some indication as to his thinking on that, I should be grateful.
We on this side of the Committee are certainly very pleased to hear that the Gilbert Islanders are prepared to accept the idea of an independent commission, as I understand it from the noble Lord's statement, to review the safeguards for the Banabans. Indeed, from this Box I should like to express the great appreciation and admiration that we have for the Gilbert Islanders in the very statesmanlike and tolerant way that they have behaved throughout what undoubtedly for them is a very difficult period. For 50,000 people looking forward to independence to have it in some way postponed, in some way made difficult, by a small minority, whatever the rights of that minority are—and we are quite justified in looking into the rights of that minority—must, I can well understand, cause feelings of frustration in the people of the Gilbert Islands while all this is being discussed in a country which is so many thousands of miles away from their own.
My second question leads on from that comment, and it is in relation to the independent commission that the noble Lord mentioned might be set up. Could the noble Lord say what the composition of such a commission would be? Would such a commission be separate from the appointment of a Commonwealth country to supervise the implementation of safeguards? And what Commonwealth countries would both the Gilbert Islanders and the Banabans accept? I believe it was my noble friend Lord Hylton who on Second Reading made the very pertinent suggestion that Britain indeed might be involved in this exercise, and I wonder whether the Government have given any consideration to that particular question.
Again, I would draw attention to what I thought was a notable speech made by

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my right honourable friend Francis Pym on Monday, 12th March, referring to the role that the Commonwealth might play on a regional basis dealing with all kinds of problems that abound in the world today; and, of course, my right honourable friend referred in particular to this area of the world when he expressed anxiety over the question of the Banabans. He said in his speech, if I may quote it:
"Since all are members of the Commonwealth, it should be possible to safeguard the rights and the security of the Banabans. Certainly Britain wishes to do so; but perhaps a Commonwealth regional arrangement might be helpful".
I hope the Minister will take note of that proposal from my right honourable friend.
I would also be grateful if the Minister could enlarge a little on what he said on 13th March in regard to "wider powers for the Banaba Island Council." This is how he referred to it in his speech, but presumably he means the Rabi Island Council, unless it is to have another name. Is it now to be known as the Banaba Island Council, which had been proposed by Mr. Luard—
Lord GORONWY-ROBERTS: I am sorry to interrupt what is, if I may say so, a most constructive speech, but I was referring, and so was Mr. Luard in his report directed to Ministers, to the proposed creation of an Island Council for Ocean Island, possibly with wider powers than is usually the case.
Baroness ELLES: I am grateful to the noble Lord for that clarification. Indeed, this is precisely the question that I was going to ask of the Minister: What kind of wider powers are envisaged for the functioning of this council? I think a very important point is: What is the Gilbertese attitude to this proposal? Would they accept it; and would wider powers have any effect on the Banabans' status on Rabi Island? Of course, the other side of the question is: What would be the attitude of Fiji to this particular proposal?
However, the main question on which we really want some more elaboration is this question of the independent commission. Will it have judicial powers? What kind of authority will it have? Who will they be able to call as witnesses? Indeed, would alll parties be prepared to accept any judgment coming from this
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independent commission? Because, clearly, if it is going to be only a kind of shadow independent commission it will not have the value which we would intend it to have. We would be very grateful for further elaboration on these particular points.
I do not want to hold up the Committee any longer than is necessary, but, having just come back from a meeting of the United Nations Commission on Human Rights at Geneva, I think in all objectivity I should draw the attention of your Lordships to recent debates which have gone on in that body, and in the Sub-Commission on Prevention of Discrimination and Protection of Minorities, about the protection of minorities in the universal context. We in this country have to pay particular attention to the views of the international community since we in the United Kingdom have ratified the International Covenant on Civil and Political Rights, and therefore, under Article 27 of that Covenant, owe a special duty of protection to minorities, wherever they may be—whether in our own country or within territories for which we have residual responsibility.
With your Lordships' permission, I should like to quote from the report on the 34th Session of the Commission on Human Rights, when the same item—a report on national, ethnic, religious and linguistic minorities—was debated. On page 71 of this report, paragraph 5 says:
"Furthermore, the ensuring and promotion of the rights of minorities had to be based upon strict respect for the sovereignty, territorial integrity and political independence of the countries in which minorities lived and upon non-interference in the internal affairs of those countries. Finally, the rights of minorities should be used only for their protection and not to foster separatism".
I think this particular paragraph is very relevant to the subject under discussion now.
Further, the representative of Senegal, who may be known to many of your Lordships and is a most distinguished judge in his own country, commented that the task of the working group which had been set up to study the minority problem
"should be to elaborate an outline of a draft declaration. He stressed the need for members of minority groups to maintain the national integrity; they had the same duties and obligations as all citizens of the country".

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Finally, when this was being debated again in this particular session of the Commission on Human Rights, the point was made by delegates—who, after all, are Government delegates; they are not speaking as independent experts but are representing Governments—that minorities should not dictate to majorities; and I think we must bear this in mind in this particular instance. I am not discussing the rights of the Banabans, but am at the moment discussing the view of the international community of a country which owes a duty as to the protection of minorities but an overriding duty, of course, to protect the majority of the people for whom they are responsible.
Having said this, I think I have fairly explained my position on this issue. I am not able to advise my noble friends either to support or to reject the Amendment at this stage, because we feel that this matter has not been sufficiently discussed, and certainly it has not been discussed by my right honourable and honourable friends in another place. For my part, I would advise my noble friends on this side of the House to use their conscience and vote accordingly.
5 p.m.
Lord HYLTON: A great deal has been said, at both Second Reading and today, about the case for the Banaban people. I should like briefly to examine the case which the Gilbertese have put forward for retaining sovereignty over Ocean Island. There is, first, the argument from history. It is true that Ocean Island for 30 years was the capital of the Gilbert and Ellice Islands; but this was a brief period in the whole history of those islands and it was an arrangement made purely for the convenience of the Colonial Power. I fail to see why it should bind the future in perpetuity. The next argument put forward is based on geography. Ocean Island is about 240 miles from Tarawa the present capital of the Gilberts. It is also true that it is nearer to Nauru than any of the Gilberts, and that Ocean Island is further from any of the Gilberts than any one of these is from the others.
We hear a great deal about the distance from Ocean Island to Fiji, which I believe to be about 1,400 miles; but distance, as the noble Lord, Lord Brockway, pointed out, does not seem to be a
784
great impediment when it comes to associating one island with another. He quoted two examples. I should like to throw into the pot the case of Hawaii, a component State of the United States, which is more than 2,000 miles from California. Then there is the case of the French Overseas Departments which are part of metropolitan France and at very much greater distances than 2,000 miles.
Another argument put forward on behalf of the Gilbert Islanders is that of brotherhood. They say they look upon the Banabans as their brothers. They may do so; but it seems clear by now that this sentiment is not reciprocated by the Banabans. Again, in favour of the Gilbert Islands, it has been maintained that we should not confuse rights of access and land ownership with those of sovereignty. We know that in 1947 the British Government made a solemn agreement guaranteeing access to land ownership on Ocean Island to the Banaban people who were no longer living there. But I would submit that it would be the greatest possible mistake to separate access and land ownership from sovereignty if there are any means of keeping the three together.
In conclusion, the Gilbert Islands, I understand, consist of 21 inhabited islands, including Ocean Island. The Gilbertese people have had considerable benefits over the years out of Ocean Island. Once the mining ceases there it can only be, I should have thought, a future liability to them. Could they not find the generosity in their hearts to allow this one island out of 21 to go its own way in association with a very much larger country, namely, Fiji, which has about five times as great a total population? For these reasons, I should like to support the Amendment, and I hope that many of my noble friends will feel able to do so, too.
5.3 p.m.
Lord GORONWY-ROBERTS: We are all extremely grateful to my noble friend Lord Brockway for giving us the opportunity once more of discussing this very important matter and for the manner in which he presented his Amendment to the Committee. He always seeks to raise the tone but not the temperature of our discussions. He always speaks with a knowledge of the facts and an utter

785
readiness to correct himself if somebody, perchance, should know a little more than he knows about some aspect of a matter—which is not a very frequent occurrence, in this field at least.
This is an issue that I covered exhaustively in my speech at Second Reading and which was also covered comprehensively in the conference report published as Cmnd. 7445. I referred to the subject again on Tuesday during Question Time. The position is this. Ocean Island has been part of the Gilbert Islands Protectorate and Colony since 1900. For over 30 years it was the administrative capital of the territory. That is, from 1908 to 1948 when the population moved to its new home in Rabi, it was the capital of what is now to become Kiribati. However this constitutional position arose historically, we have to face the realities of the situation as it is today. Our decision on this Amendment, I agree with the noble Baroness, might have major consequences not simply in Kiribati, as we must now learn to call it, but across the whole range of the Pacific where there is a very widespread concern with the possible consequences of fragmentation.
I understand this. I am a member of a minority within the United Kingdom and of a minority within that minority. I am one of the quarter of the population of Wales that is fortunate enough to speak Welsh; three-quarters do not! I am a minority within a minority. I hope that I have a keen sense of emotional attachment, also a real apprehension of over-fragmentation, and, thirdly, I hope, an intellectual as well as a sympathetic view of the endeavour in the modern world to maintain unity and at the same time to provide within that unity local self-government and local opportunity.
We are here faced with the almost irreconcilable attitudes of a small community emotionally attached to its island, a community of some 2,500 people almost all of whom live and have lived for 30 years or more on the island of Rabi. On the other hand, we have the equally deep concern of the rest of the population of these 33 islands, of the 56,000 Gilbertese, that their territory should move into independence (as others have) as it is now constituted. I have spoken to both and I must confess that I found it more possible to have discussions and conversations
786
with the Gilbertese Ministers and representatives than, unfortunately, always with the Banaban community. I make no complaint about that; I simply say that in passing to my noble friend Lord Brockway, who said that there has been no consultation with the Banabans. I could not begin to describe to the Committee how frequently this has been sought by successive Ministers and Governments and how frequently, unfortunately, our advances have been rejected. We have been able to talk to them—but selectively and sometimes. We have never failed to have a proper discussion with the Gilbertese representatives.
Lord McNAIR: My Lords, the island of—
Lord GORONWY-ROBERTS: I do not think I am making a contentious point. I am saying that I made every effort to discuss with the Banabans, as did my predecessors, and have not always found it possible to do so, however ready I have been to talk.
Lord BROCKWAY: If I may intervene, the Minister suggested that I said that there had been no discussions with the Banabans. I said that historically, over a long period, there have been no discussions. I recognise that recently there have been such discussions. I said that clearly.
Lord GORONWY-ROBERTS: Certainly, I am perfectly ready to stand corrected by my noble friend if he meant that there have not for a long period been discussions with the Banabans, it has indeed been a feature of colonial discussions that such discussions have not always been held. I was addressing myself to my own duty of talking to people frankly and as frequently as they are prepared to see me, which I know was the policy followed by my noble friend who preceded me in office. I join hands with my noble friend in what he has said. That was the position.
As to meetings between the Gilbertese and the Banabans, I appreciate the suggestion of the distinguished Prime Minister of Fiji that they should be held; but they have been held, and I have a list of them. They were held in October 1975

787
in Tarawa; in December 1975 in Naura. In April 1977 the Gilbertese delegation visited Rabi and before that, between those two meetings, I went to Wellington to meet Sir Ratu Mara personally. I had a long and exhaustive talk with him about this problem. I could not go to his own capital because unfortunately the airfield there had been blacked by the Banaban strikers. So we compromised with Wellington. We had a useful, and I thought co-operative, discussion.
The list goes on: in November 1977 there was a meeting in Bariki between the Banabans and the Gilbertese, where the Banabans indeed agreed to an all-in referendum, not just of the Banabans but of the whole population, and agreed to abide by the result. Later of course they made this conditional on a major sum of money being paid over in respect of phosphate mining. So, as I said on Second Reading, it has not always been the case that the Banabans have felt that the island was at all costs sacrosanct. There has at times been a suggestion that a certain sum of money might settle it. I shall come to the question of money in a moment. So the list goes on. There has been no lack of consultation or discussion, or if there has been I am afraid I must say that it has been due to a certain lack of willingness at times on the part of the Banabans to come forward, sit down and talk about these matters.
My noble friend Lord Hale said that they wished to go back to their island. They can: there is nothing to prevent them. Indeed, the right of access and land holding is already guaranteed under the British Declaration of Intention and will be entrenched in the new constitution to an extent for which neither I nor my advisers can recall precedent. To say that one cannot entrench these rights is a plea of defeatism. What I do know is that the Gilbert Islands Government and people feel a little affronted because I have insisted on unusual safeguards for Banaban rights in this respect. The Gilbertese feel, as the noble Lord suggested, slightly insulted that we need all this paraphernalia of guarantee when the Gilbertese, Pacific islanders practising the Pacific way, as they call it, not only intend but insist on treating the Banaban Islanders as their brothers, which they truly are. They are related by blood and marriage
788
and they work together on the island and on other islands. They are ethnically and linguistically related. This is the way the Gilbert Islands and, I hasten to add, everybody else in all the other islands see the position.
I have been subject to criticism, especially in the other place, for the way in which the Government have approached this problem. It is nothing like the criticism that I have received in the Pacific for "being over-generous to the Banaban community". This is the fact. We have done it because this is a particularly sensitive aspect of Gilbertese development. I was really dealing with my noble friend's point that they want to go back. Of course they can. There is no need to be eloquent about this. The access, the facility, is there and it is going to be screwed in in a manner that I have not seen in any official paper. So there is absolutely no doubt about it.
Then we heard a good deal about the condition of Ocean Island as a result of phosphate mining. There are other parts of the former British Empire, some within this Kingdom, where, by the lights of time, period and technological capacity, terrible depredations were made upon the natural as well as the psychological basis of the life of the people. This has happened not just on Ocean Island but in many parts of the world and in parts of our own country here—in parts of Wales. If we select one or the other and say that it is a standing reproach to us today, the answer is that it is not. It is a standing regret to us that, by the lights of those times and resulting from the level which social thinking and technological advance had reached in those days, these things happened.
However, my noble friend described the island as an island paradise. I hope we can help to make it once more the paradise that it was, because one of the proposals that we are making which has not yet been accepted by the Banaban community is to finance a thorough survey on the island with a view to promoting worthwhile schemes effectively to rehabilitate the island. It is a fact that long before phosphate mining the island was not a paradise; it was deficient in certain fundamental necessities prior to the discovery of phosphate. The population was subject to frequent droughts

789
Which led to periodic deaths. Those on passing ships were often implored by islanders, on the point of death, to take them off. This is no reproach to anybody, it is simply a statement of fact. Very well, mining has changed the face of the island. The Japanese took a hand in 1943–44, but let us put all the blame on the British Phosphate Commission. Mining has changed the character of the island. The British Government, in collaboration with its Australian and New Zealand partners in the Commission, are prepared to do everything possible, as generously as possible, to see if we can rehabilitate the island to which access by everybody on Rabi is perfectly open.
I do not wish to say anything about the role of Fiji, except once more to pay the highest possible tribute of admiration to the Fiji Prime Minister, Sir Ratu Mara. My noble friend quoted extensively from his letter to me. I notice that he quoted the phrase that it would be unfair for the British to ask Fiji to intervene to settle this issue. It is not we who have approached Fiji or suggested that it should he the agency of conciliation and of supervision—I shall come to the three points in a moment—but the Banabans have done so. It is of course for the Fijian Prime Minister and his Government to decide whether they can respond to the clearly expressed desire of the Banabans that it is his intervention that they would welcome. We cannot of course over-persuade anybody to fill such a role.
This brings me—I have no desire to stand between the Committee and a decision—to the questions put to me by the noble Baroness, Lady Elles. I think I have to some extent answered the first question: will Fiji not be involved in the future? I would put it like this: I cannot speak for the Fiji Government, but I understand that their present intention is not to be involved, as we have heard. But I would add that I should be delighted if they were. The record of Fiji in helping the Banaban community when it needed a home, as we heard from my noble friend Lord Shepherd, really compelled admiration. I am deeply anxious that Sir Ratu Mara, a leading Pacific statesman, will perhaps reconsider his attitude in this matter.
Baroness ELLES: Would the noble Lord allow me to press this a little further?
790
Could he say whether Mr. Luard actually raised the proposition of a treaty to which Fiji might be an associated signatory?
Lord GORONWY-ROBERTS: Yes, I am going to deal with the three points. I know that this is important. The noble Baroness also asked whether the commission to review the Banaban provisions would be connected with the treaty. Perhaps I can best answer the four questions put to me by the noble Baroness by being as specific as I can at this stage, and bearing in mind that we are not the only Government involved, or indeed the only party to these proposals. My honourable friend the Under-Secretary—and once more I pay the highest tribute to his readiness to engage in this essential mission at such short notice and to the manner in which he discharged it—has reported to the Secretary of State and myself. It is not a formal report which is printed in the ordinary way, but it is a report made by one Minister to another. What comes out of it is what I indicated when I made a Statement regarding his visit on the 13th.
We are favourably considering three major points of addition to the already very substantial protective provisions set out in the report of the conference and intended for the constitution. These are that from Independence Day on, the implementation of all these protective safeguards should be supervised or overseen by a Commonwealth country, presumably with its representative in Tarawa—as will be the case with our own representative. As to which Commonwealth country is acceptable to both parties, it would be invidious for me to say today. I have indicated my regard for Fiji and its past role and what I regard as its possible role, but it is not for me to over-persuade them. There are 40 Commonwealth countries, some of them in the Pacific. We are a Commonwealth country and so, without prejudging the choice of the actual country—because, as I say, there are other parties with views on this—I hope I can make it absolutely clear to the noble Baroness and to the Committee that we are favourably considering and offering for consideration to the other parties, as point one, that from Independence Day the provisions safeguarding the Banabans' right of access, land-holding and the rest of it, should be

791
overseen by a representative of a Commonwealth country.
At the end of three years we think there should be a three-member commission, again, Commonwealth members, possibly on a regional basis—and here I pay my tribute of respect to the speech made by the right honourable Member Mr. Francis Pym at the Commonwealth Institute the other day. We all know that recently, at the instigation of the Australian Government, a regional Commonwealth Heads of Government conference was held in Canberra, and very successful it was too. And so I take note of what Mr. Francis Pym has said. There is every possibility that this could be organised on a regional Commonwealth basis. We envisage, and I certainly envisage, two members from among Commonwealth countries, possibly in the region, with a chairman appointed by the Commonwealth Secretariat. We envisage that at the end of three years—it was originally to be five, but the Gilbert Islands Government agreed to reduce the period and they have been very forthcoming—that commission would review the position and would say: "It has worked well but it needs to be adjusted here and there", or, "It has not really worked and we make this recommendation …".
That is the path of honour and practicality. I impress upon your Lordships that we need to show the Gilbert community and the Pacific area that we do practically and effectively recognise the dangers of fragmentation. At the same time, we need to show that we are prepared, with them, as the prospective sovereign State, to provide within the unitary State—and surely this is a modern conception: something far better than the old-fashioned nationalistic solutions which have so failed us in the past—and in the modern sense within the unitary State to provide, the utmost effective autonomy.
This brings me to the third point: what would be the nature of the island council? I will be frank with your Lordships. Naturally, the Gilbert Islands Government are reluctant to accord to this island council any higher or wider powers than the other island councils within the State will have; but I believe they see it as we do and believe that it is necessary, in all the circumstances, perhaps,
792
to add to the powers normally accorded to an island council. I have a note here to the effect that the island council for Banaba Island would have the fullest autonomy consonant with the intention of the unitary character of the Gilbertese State of Kiribas. For instance, it would control movements into and out of Ocean Island. It would have there through its own representatives in the Assembly—two out of 36—a veto on any proposal to change the arrangements in regard to Ocean Island and the rights of the Banaban community. It would man the local services on Ocean Island to the fullest extent possible compatible with the availability of qualified and suitable people in the Banaban community itself.
That carries with it a point which I stressed at the constitutional conference: a full participation by members of the Banaban community in all training schemes, in which we in turn would be the principal financial and supporting authority. So that the three-pronged addition to the proposals which were agreed at the conference is, first, Commonwealth oversight of the working of the substantial protections; secondly, a review after only three years as to how they have been worked by an impartial Commonwealth commission and, thirdly, the fullest possible autonomy for this island and its 100 people—to increase, we hope, as a result of the development survey—compatible with the necessarily unitary character of the new Kiribati State.
I hope that I did not hear anybody minimise the importance of what this country has tried to do in the financial field for the Banabans. It is all too easy to decry colonialism, and to say that it was all a dark and bad chapter in our history. It was nothing of the kind. Like every period in our history, it held its mistakes. But I believe that as with every period in our history—and I speak as a member of the United Kingdom community—the assistance, advice, example, protection and development which our colonial mission rendered in every part of the world far outweighed the reproaches that can be levelled here and there as to the behaviour of individuals. We in this country need to have a sense of perspective, if sometimes we do not have a proper sense of pride. It is time that we stood up and answered our detractors here and abroad. Anybody will tell us in Asia

793
or in Africa that the British record—the peerless record, if you like to call it that—stands comparison very easily with that of any other colonial Government past. So it does here.
What are we trying to do for them on the financial side? I remind my noble friends that we have offered them an ex gratia gift, despite the decision of the High Court. We could have done nothing, but we took note of what the Vice-Chancellor said on the margin, as it were, and said: "Very well, we shall make an ex gratia gift. You are not entitled in law to anything, but we shall make this gift of 10 million Australian dollars."
Baroness ELLES: If the noble Lord will allow me to intervene, I think we in this House should be reminded that the judgment of Mr. Justice Megarry was conditioned by the fact that he was not able to make any judgment against the Government. But in reading the judgment very carefully, it appears that there was a clear condemnation of the action of the Government in relation to the Banabans. I believe that Her Majesty's Government have responded very generously, but I think it is right to insist that Mr. Justice Megarry made this point.
Lord GORONWY-ROBERTS: That is precisely what I was going on to say. There was no legal obligation, and we could have rested on the judgment which had been arrived at, for the very reasons which the noble Baroness put; but we did not. If anybody thinks that it was easy to persuade everybody concerned to come in on this ex gratia gift, I hope that I shall not have to go into that bit of recent history. The United Kingdom managed this 10 million. Moreover, we persuaded our partners to add something like 1·5 million extra for accrued interest. Neither of those two offers has been taken up by the Banaban community. We have no idea whether or not they want it. I hope that they will come forward and say: "We do not propose to say 'Thank you', but we will take it and we will co-operate with you", or, "We should like your advice as to how to organise it in some trust fund".
Then there is the 1·25 million dollars which the British Phosphate Commission offered them when their other case fell before the court. That one failed on its
794
real merits, as the noble Baroness knows, and they were awarded, I think, 14,000 dollars. The Phosphate Commission said: "We made an offer of an out of court settlement, previously, but you persisted in going to court and now you have been given 14,000 dollars. We will revive the out of court proposal we made to you, which is 1·25 million". It is there for them.
Fourthly, my right honourable friend the Minister of Overseas Development has offered £1 million sterling for the development of the island of Rabi where most of them live—2,400 out of 2,500—to be operated through the Fijian Government, of course. The resources survey of Banaba, to which I referred is on offer. We are prepared, as part of our overseas aid programme, to finance a thorough survey of this unfortunate island to see what, practically, can be done to recreate it as—if it ever was—an island paradise. No island is ever a complete paradise, not even the Isle of Anglesey, but efforts can be made to improve even the best of islands.
We are in earnest about this. We want to do everything we can to restore Ocean Island. We are going to provide the money or the expertise, if only the Banabans come forward and discuss with us what kind of rehabilitation and redevelopment they have in mind. I hope they will do that soon. In the meantime, we wish to see them go forward with their Gilbertese cousins, if not their brothers—if they reject that description—into independence, with the guarantee that a Commonwealth Government will be overseeing the implementation of these very strong protections on their behalf, helping them with any complaints or suggestions that they may come up with during that period, and at the end of three years there shall be a review of how this has worked.
That gives to the Gilbert Islands Government the satisfaction, to which they are entitled, that, like other colonial territories, they are moving as a whole territory into independence. It gives to the Banaban community the protections that they need, and also the opportunity, through an impartial commission, after a period of years, of taking a good look at how this arrangement has worked, and then of considering what, if anything, needs then to be done.

795
I know that my noble friend always speaks on the basis of principle. He has asserted a principle in his speech this afternoon. He always does this. The principle is that we should consider what we, as mere mortals, can do in the best interests of all the communities of this area. I deeply believe that this is the right way to tackle this very difficult problem, and I should be so glad to be joined by my noble friend, of all people, if he accepted from me that every word he has said weighs with the Government, that he has made his point and that it would be helpful to everybody, including the other place, if this clause, and with it the Bill, went through to the other place, having gone through the subsequent stages here, without amendment. I do not think that he will live to regret taking that attitude to this Bill.
5.40 p.m.
Lord BROCKWAY: I always respond with great emotion to appeals which have been made by my noble friend Lord Goronwy-Roberts. He will believe me
When I say it is only because I believe an absolutely fundamental principle is involved here that I shall be pressing this Amendment to a Division. The discussion has strengthened my view.
The only strong point that has been made—and made from both sides of the House—is that the Banaban people are now on an island in Fiji, their own island is devastated and they had better remain in Fiji. Their island will not always be devastated. It can be rebuilt. Last week, 150 Banabans went to the island. The island will be rebuilt, and these people, who have a sense of their homeland, will want to go back to it. They, more than the Gilbertese, will want to be associated with Fiji, and it is their right, in my view, to make that decision. Because I hold that view, I shall be pressing this Amendment to a vote.
5.41 p.m.
On Question, Whether the Amendment shall be agreed to?
Their Lordships divided: Contents, 16; Not-Contents, 92.

CONTENTS

Aberdeen and Temair, M.

Gisborough, L.

Moyne, L.

Auckland, L.

Hale, L. [Teller.]

Somers, L.

Brockway, L. [Teller.]

Hylton, L.

Spens, L.

Craigavon, V.

Killearn, L.

Ward of North Tyneside, B.

Davies of Leek, L.

Masham of Ilton, B.

de Clifford, L.

Monson, L.

NOT-CONTENTS

Alport, L.

Home of the Hirsel, L.

Porritt, L.

Amherst of Hackney, L.

Hood, V.

Powis, E.

Ampthill, L.

Hornsby-Smith, B.

Ritchie-Calder, L.

Aylestone, L.

Houghton of Sowerby, L.

Rochester, L.

Banks, L.

Hunt of Fawley, L.

Romney, E.

Beaumont of Whitley, L.

Hylton-Foster, B.

Sainsbury, L.

Blease, L.

Jacobson, L.

St Davids, V.

Boston of Faversham, L.

Jacques, L. [Teller.]

Segal, L.

Burton, L.

Janner, L.

Semphil, Ly.

Caccia, L.

Leatherland, L.

Shepherd, L.

Cawley, L.

Leonard, L.

Shinwell, L.

Chorley, L.

Llewelyn-Davies of Hastoe, B.

Skelmersdale, L.

Cobbold, L.

London, Bp.

Stamp, L.

Cooper of Stockton Heath, L.

Long, V.

Stedman, B.

Craigmyle, L.

McGregor of Durris, L.

Stewart of Alvechurch, B.

Daventry, V.

McNair, L.

Stone, L.

David, B. [Teller.]

Mancroft, L.

Strabolgi, L.

Elliot of Harwood, B.

Melchett, L.

Strathcona and Mount Royal, L.

Emmet of Amberley, B.

Merrivale, L.

Strathspey, L.

Evans of Hungershall, L.

Mills, V.

Swansea, L.

Fisher of Camden, L.

Mishcon, L.

Swinfen, L.

George-Brown, L.

Morris, L.

Taylor of Gryfe, L.

Gladwyn, L.

Mottistone, L.

Vaux of Harrowden, L.

Gordon-Walker, L.

Mowbray and Stourton, L.

Wallace of Coslany, L.

Goronwy-Roberts, L.

Norfolk, D.

Westbury, L.

Greenway, L.

Northchurch, B.

Whaddon, L.

Greenwood of Rossendale, L.

Nugent of Guildford, L.

Wigoder, L.

Gregson, L.

O'Brien of Lothbury, L.

Wilson of High Wray, L.

Hankey, L.

Peart, L. (L. Privy Seal.)

Wootton of Abinger, B.

Hanworth, V.

Phillips, B.

Wynne-Jones, L.

Henderson, L.

Plant, L.

Resolved in the negative, and Amendment disagreed to accordingly.

Clause 7 agreed to.
Clause 8 agreed to.
Schedule agreed to.
House resumed: Bill reported without amendment; Report received.

MARRIAGE (ENABLING) BILL [H.L.]
5.52 p.m.
Baroness WOOTTON of ABINGER: 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.—(Baroness Wootton of Abinger.)
On Question, Motion agreed to.
House in Committee accordingly.
[The VISCOUNT HOOD in the Chair.]
Clause 1 [Marriage between relations by affinity not to be void]:
[Amendment No.1 not moved.]
The Lord Bishop of LONDON The Lord Bishop of LONDON moved Amendment No.2:
Page 1, line 8, at end insert ("but if at the date on which the marriage of a man with any of the persons mentioned in subsection (2)(a) below, or of a woman with any of the persons mentioned in subsection (2)(b) below, is solemnized either of the parties to the marriage is under the age of twenty-one, the marriage shall be void unless the Court has given its consent to the solemnization of the marriage.
( ) In determining whether to give such consent the Court shall have regard to all the circumstances of the case, including the following matters, that is to say:

(a) the degree of relationship between the parties to the proposed marriage;

(b) the extent, if any, to which the dissolution of any previous marriage of either of those parties was caused by the conduct of the other;

(c) the value to either of those parties of any financial benefit which that party will have the chance of acquiring if the proposed marriage takes place;

(d) the interests of any children.

( ) Nothing in the preceding provisions shall be taken as affecting section 2 of the Marriage Act 1949 (marriage of persons under sixteen void) or section 3 thereof (consents required to the marriage of certain other unions).
( ) For the purposes of the section, "the Court" means the High Court, the county court
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of the district in which any applicant resides or a court of summary jurisdiction having jurisdiction in the place in which any applicant resides and rules of court may be made for enabling applications under this section—

(a) if made to the High Court, to be heard in chambers;

(b) if made to the county court, to be heard and determined by the registrar subject to an appeal to the judge;

(c) if made to a court of summary jurisdiction, to be heard and determined otherwise than in open court—

( ) Nothing in this section shall dispense with the necessity of obtaining the consent of the High Court to the marriage of a ward f court.").
The right reverend Prelate said: I have the honour, in the name of myself and the noble Lord, Lord Hunt of Fawley, to move the Amendment which stands in our names on the Marshalled List. In the very interesting debate which we had on the Second Reading of this Bill sponsored by the noble Baroness, Lady Wootton of Abinger, I sensed that there was more agreement between those who voted one way and those who voted another than might have appeared on the surface. I think the debate revealed that there is no great ethical, moral or religious objection as such to the marriage of those who are related by affinity. On the other hand, as I, and other noble Lords, endeavoured to express to your Lordships, there are some of us who believe that there would be very grave social dangers if it was permitted for those related by affinity to marry one another without any restrictions whatsoever. So this Bill having received a Second Reading, I and my friends in consultation with the noble Baroness, Lady Wootton, have been endeavouring to find some way whereby we can reach agreement about the limitations that should be placed upon marriages of this nature. It is in the light of that research which has been going on since the Second Reading that I now move this Amendment that stands in our names.
The first thing that I should like to draw to your Lordships' attention is that we have done our best to ensure that our Amendment is not retrospective. After I had tabled the first Amendment I was told that quite possibly it was retrospective and that therefore, quite inadvertently, we might have brought within our restrictions, for instance, a marriage with a deceased wife's sister, which has been legal since the year 1907. It was no part of our intention to make anything that we

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are proposing here look backwards in that way, and I am assured by competent draftsmen that the wording of the Amendment makes it quite clear that we are referring only to the degrees of affinity that are set out in the Bill.
The next question—and perhaps it is the most important—is to consider what should be (if any) the nature of the restrictions. I know the noble Baroness feels that there should be no restrictions and that all those who are named in her Bill should be free, without any more ado, to marry one another. Those of us who feel that there should be some constraints have been thinking very carefully as to what those contraints should be. On the one hand, there are some who think that all these possible marriages between those related by affinity should be subjected to the consideration of the courts. Others feel that the age limit should be put slightly lower; and on the other side there are those who hold that since the law now allows somebody of the age of 18 to marry without parental consent, that should be the age which should be put into the Bill, and that therefore the Bill would apply only to those who were under age in desiring to marry a relative as set out in the Bill.
I myself cannot accept that, in my view very low age, of 18, and therefore in this Amendment I am suggesting that the condition should be 21; that is to say, that anybody who wants to be a partner in a marriage between those related by affinity, one of whom is under 21, would need to have the permission of the court. I very much hope that this will meet the requirement of the noble Baroness because she has put to me that there are quite a number of old and senior and responsible people who want to get married within these degrees, and that it is therefore rather demeaning that they should have to go to the courts to get permission.
Baroness WOOTTON of ABINGER: If the right reverend Prelate will allow me, I am not perfectly clear whether he is proposing that the age limit should apply only to the affinities that are proposed to be legalised in this Bill or to all marriages by affinities.
The Lord Bishop of LONDON: Only to those that are set out in the Bill. So
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I am proposing, therefore, that the limit should be 21, and that if either party is under 21 and wishes to marry within these degrees, he or she would have to get permission.
I have now had to ask where that permission should lie, and I believe that it should lie with the courts. Again the noble Baroness has expressed to me some misgiving about the desirability of sending people to the High Court. This seems to be making rather a business of something that could be quite simple, private and inexpensive. I accept the weight of the argument that she has put forward, and so I have taken from the Marriage Act 1949 the procedure that is now in operation regarding the permission for the marriage of anyone under the age of 18.
Thus, "the court" is defined in my Amendment as being either the High Court or the county court or the court of summary jurisdiction—that is the magistrates court—and that, whichever is most suitable and seemly, those who have to seek this permission can go to one of those three courts. Moreover, I have provided in the Amendment, as is provided in the Marriage Act, that it shall be possible for these courts to hear these cases in private so that there will be no undue publicity. Therefore, I hope that the definition that we give of the "court" is one which is simple, workable, and will not cause undue embarrassment to those who may be involved.
But obviously the court must have some criteria by which they will judge whether or not permission shall be given. Therefore, I have set out in the Amendment four conditions which the court must take into consideration. Having dealt with all the general circumstances of the case, the court must in particular pay attention to the degree of relationship between the parties to the proposed marriage. Thus, it may be quite improper, in their view, under certain circumstances for a stepfather to marry his stepdaughter, and therefore that would be one matter the court would take into consideration. Secondly, the court would take into consideration whether there has been any undue pressure such as creation of a divorce in order that one party may be able to marry another; thirdly, the court must be satisfied that there has been no undue influence exercised because of possible financial advantage as a result of the marriage; and,

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fourthly, the interests of the children generally must be examined by the court before they give permission. It seems to me that those four conditions are reasonable and ones which could be assessed by the court before they decide whether such a marriage might take place.
The next subsection in the Amendment is a technical one which I have been advised to insert so that we do not by mistake repeal two sections of the Marriage Act referring to permissions that must be given and regarding the bar of marriages of persons under 16. Finally, I put in a subsection at the end to deal with the question of the ward of court. This is again in the Marriage Act. I think it is proper that the question of a marriage of award of court with somebody to whom that ward is related by affinity should be decided by the High Court.
I hope, therefore, that these Amendments will meet a good many of the misgivings that some of us have had about complete freedom of marriage between those related by affinity, and will also seem to be reasonable to the noble Baroness. I have, therefore, the honour to move the Amendment, and I hope that if I have left out anything the noble Lord, Lord Hunt of Fawley, whose name is also on this Amendment, will fill any gaps that there may be. I beg to move.
The DEPUTY CHAIRMAN of COMMITTEES (Viscount Hood): I think at this point I should observe that the final word on page 1 of the Marshalled List is a misprint; for the word "unions" one should read "minors".
The MINISTER of STATE, HOME OFFICE (Lord Boston of Faversham): Perhaps I might apologise in advance for spending a few minutes on this particular Amendment. It is a most interesting and an important one, and perhaps your Lordships will forgive me for spending few minutes on it. The Amendment which the right reverend Prelate and the noble Lord, Lord Hunt of Fawley, have put down jointly differs in two respects from that which appeared in their names in earlier Notice Papers. First, it would require the consent of a court to a marriage allowed by the Bill only if either party was under the age of 21, and, secondly, it specifies certain matters to which a court dealing with an application for its consent
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to such a marriage must have regard. The principle underlying the Amendment is that in certain cases the marriage of two people in a case where Parliament has in principle seen fit to allow marriage to take place, and where any consent of parent or guardian required by the general law is forthcoming, should nevertheless depend on the exercise in their favour of a discretion rested in a court. That would mean asking judges and magistrates to take on a very difficult task, and in my view an unsuitable one. The courts are often faced with difficult decisions, of course, but they take their decisions on the basis of evidence laid before them, with that evidence tested by the two opposing sides in the case. One is bound to ask what sort of evidence should the parties attempt to bring before the court in this sort of case, and who would be the opposing side to test it.
It is true that in some cases the courts are required to exercise a quasi-parental discretion; for example, in certain classes of case involving children, including cases where parental consent to marriage is refused. But there they have a guiding criterion in the interests of the young person involved. In this Amendment the criteria proposed are rather different and much more complex. None of them seems free from difficulty, and I suggest that the Committee should perhaps consider each of them carefully in turn. I will take them, if I may, in order.
First, there is the degree of relationship between the parties. The Amendment does not attempt to define the closeness of the relationship which should lead the court to refuse its consent. A provision applying only where one party is under the age of 21 is likely in practice most often to affect a proposed marriage between stepfather and stepdaughter. In this and indeed in any other case the court would be required to apply its mind to a question which Parliament in passing the Bill might be thought to have settled; namely, whether the degree of affinity which applied in the particular case should or should not be a bar to marriage.
Then there is the extent, if any, to which either of the parties have brought about the dissolution of a previous marriage. The use of this criterion would run counter to the trend of recent legislation

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on divorce, abolishing the concept of the matrimonial offence, and to the abolition of actions for enticement. Part of the purposes of such changes was to avoid requiring the courts to apportion blame for the breakdown of a marriage. This criterion would reintroduce a requirement for a court to reach a judgment on the cause of the breakdown of a marriage, in circumstances where this task would be, if anything, more difficult than that under the old and unsatisfactory divorce law. The court could be required to identify the cause of the breakdown of a marriage which might have ended several years earlier, in circumstances where the question of causation involved a third party in addition to the two parties of the original marriage. In the Government's view, it would he most unwise to reintroduce a requirement, for that is what it would amount to, for the courts to reach a judgment on the fault, or lack of it, in this area of the law. It should also be borne in mind, in our submission, that the consent of the court would not be required for marriage between brother-in-law and sister-in-law, by virtue of the earlier Act of 1960, even when one party was under 21; that is a case where arguably the risk of enticement is greater because those concerned are closer in age.
Next comes the question of financial benefits resulting from the proposed marriage. In order to apply this criterion the court may need to conduct a wide-ranging inquiry into the terms of any existing financial arrangements. It may in any case be thought that such an inquiry would be stultified, since it would not be possible, for instance, to investigate the parties' prospects of bequests under the wills of persons not yet dead. This proposal raises all sorts of practical difficulties about the absence of any powers to conduct such inquiries, the possibility that the parties might not know of such prospects, or that such prospects might indeed change. But there is also the question of what weight the court should attach to any financial benefits which are in prospect. In my submission we need to ask ourselves: why should such benefits be allowed to outweigh objections to the proposed marriage on other, less material grounds?
Finally, we have the interests of any children concerned. This question might
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not be too far removed from those which the courts may sometimes be required to decide in relation to guardianship and custody matters. But the end result of the decision; namely, whether a couple—neither of them necessarily a parent of the children concerned—may marry, is of a quite different nature.
It is evident from the wording of the Amendment—
"shall have regard to all the circumstances of the case, including"
—that the discretion of the court is ultimately at large. That leads one to ask what account the court is to take of the expressed determination of the parties, if they are not permitted to marry, none the less to live together. I would further suggest to your Lordships that it is perhaps significant that, in relation to the marriage of brother-in-law and sister-in-law, where many of the same considerations may be thought to apply, no corresponding requirement of the leave of a court has been imposed, nor has its absences been previously regarded, as far as I am aware, as a defect in the law.
I would also suggest that the need to apply for the consent of a court—even if the application is made to a local magistrates' court—would be likely to introduce a factor of complication and delay. It is true that, under the present law, magistrates' courts—and, less often, the county courts and the High Court—have to deal with applications to override refusal of parental consent to the marriage of a minor. Such applications are not usually, I understand, subject to any serious delay before a hearing can be arranged, though the period varies from one part of the country to another according to the pressure of court business; and they can usually be disposed of at a single, fairly short hearing. But applications for consent under the provisions of the Amendment would, in my submission, be of a rather different nature.
The matters on which the court would need to be informed would be more complex; the evidence would take longer both to assemble in advance and to present at the hearing, if, indeed, it were to be—as it would need to be—presented as evidence in the first place in the way that we are used to hearing it presented, in our courts. The court might well find it necessary in some cases to require further

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information and to adjourn the hearing. So the result could very well be to cause a delay to people's marriage plans which they might reasonably feel to be oppressive and distressing.
The proposed Amendments introduced by the right reverend Prelate have so far enabled us to have a useful discussion of the practical difficulties of distinguishing in the Bill between acceptable and unacceptable marriages in the area with which the Bill is concerned. My advice to the Committee is that the Amendment before us would not provide a satisfactory way of doing so, and perhaps I can emphasise that I certainly intend no disrespect to the ingenuity of either the noble Lord or the right reverend Prelate. On the contrary, I am quite sure that, whatever view we take on this Amendment, we are all very grateful indeed to them for providing us with an opportunity to consider these important matters. But, in my view, such distinctions as these cannot satisfactorily be made consistent with the spirit of the Bill. In my submission, the task is not a suitable one for the courts; there are no procedural or other arrangements to enable facts to be established and it seems impossible to devise an adequate and consistent set of criteria for discriminating between particular cases falling within the scope of Clause 1. On the principle of the Bill, the Government are neutral, as I indicated at an earlier stage, but on this Amendment, for the reasons that I have given, my advice to the Committee is not to accept it.
Viscount LONG: I should like to point out to the noble Lord, Lord Boston of Faversham, who has given us a great deal of information about the Government's point of view, that he has jumped in rather quickly because my noble friend and other Members of the Committee wanted to voice their opinion. I am not making a criticism, but what he has said has probably rather damaged some of the arguments of my noble friends. Perhaps my noble friends could now make a few comments, the right reverend Prelate the Bishop of London could wind up, and then the Government could come back on the arguments. However, by intervening at this moment I have the feeling that the noble Lord was somewhat jumping the gun. I am not making a criticism; I merely thought that he might have held back for a moment.
Lord BOSTON of FAVERSHAM: I certainly apologise if anyone takes my intervention amiss. However, I understand that it is quite normal as regards Private Bills for a Government spokesman to intervene as soon as Amendments have been moved so as to give an indication of the Government's view. That is, in fact, a perfectly normal procedure.
6.17 p.m.
Lord HUNT of FAWLEY: I should like to support the right reverend Prelate the Bishop of London in moving this Amendment—and, through it, to support the Bill of the noble Baroness, Lady Wootton of Abinger—as this addition will insert some protection for young people. As the noble Baroness told us on a previous occasion, the Bill is intended to bring comfort and happiness to a number of distressed individuals. But many of us believe that it has potential dangers and that we shall be asking for trouble if we do not insert some safeguards.
In our country at present, there are increasing numbers of children and adolescents being brought up by step-parents in loco parentis. Those step-children are very much at risk in large mixed-up families—those with perhaps some of "his" children, some of "hers", and some of "their" children, all living together and growing up in the same home. Those children or young adults are still immature. They may think that they are in love, but in fact it is sometimes just "adolescent infatuation". In our present permissive society they are likely to cohabit, and I very much doubt whether anything we do will either prevent or encourage that. But, they do need some protection against marrying prematurely, unwisely and perhaps miserably, before they really know quite what it is all about. Such marriages may, only too easily, end in divorce. Some marriages between young step-relations are, of course, already allowed by British law, but that does not apply to them all; and those for which it does not are the more difficult and tricky ones to which our Amendment refers.
In our Second Reading debate many speakers mentioned the dangers that they thought might arise from the abolition by the Bill of the remaining prohibitions on these marriages. Most of the suggested

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dangers involved the stability and security of family life and possible confusion and conflicts of interests, and distrust, between parents, their children and step-children. Strong terms were used by some speakers such as "almost a nightmare", "a mockery", "ridiculing the family", "eroding love in the family", "socially disruptive" and so on. Other speakers, however, such as the noble Lord, Lord Soper, and the right reverend Prelate the Bishop of Southwark, were less impressed by those horrifying and calamitous prospects for the couples concerned, their families, or for the principles that lie behind Christian marriage. In that debate opinions were fairly evenly divided on the Bill. Of the 12 speakers, six voted for a Second Reading and six against it. I said that I would vote for the Bill of the noble Baroness if she allowed some protection for young people to be introduced; but at that stage she gave me the impression that she was unwilling to accept that, because it was difficult to think up safeguards which did not encourage the very thing we wished to stop.
In a way that is true of nearly all precautions. As a medical man I like safeguards. Seventeen years ago I wrote an article on "Accidents in the Home", and I edited a book on "Prevention of Accidents". If one erects a banister on a steep and dangerous staircase, some adventurous boy will slide down it and break his leg. If one places a boiling saucepan or an electric socket out of reach of young children, one of them at some time may climb on a chair to see what it is. Other children will pull away a fireguard to explore behind it. Even a speed limit on a road will tempt some people to break it. But on the whole, such precautions give a considerable sense of security to many people and are usually well worthwhile.
The problem before us today is this: Is there any safeguard which we can introduce into the Bill of the noble Baroness to discourage or prevent these particular step-children making premature and often undesirable marriages? As the right reverend Prelate has told us, this Amendment proposes that when one of the couple is under the age of 21, a judge of the High Court in Chambers, a registrar of a County Court (subject to the right of appeal to a judge) or a magistrate should
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be approached for an opinion and consent before the marriage can be solemnised. This Amendment is a compromise between not allowing these couples to marry at all—which is the position as our law stands at present—and allowing them to marry early, perhaps from the age of 16 with parental consent, which as it stands, the Bill of the noble Baroness would make possible.
After much consultation we have chosen 21 as the appropriate age, after which couples may choose for themselves what they want to do. We believe that this compromise is better than trying to introduce a fixed age limit before which these step-relations cannot marry at all, as I suggested during our Second Reading debate might be needed. This Amendment combines the help one could get from a court with the advantages of a flexible age restriction. The fact that these young couples will have to apply to a court at all may deter some of them for a while from wanting to marry.
In every case which comes before it such a court would be in a position to review the realities of the situation, taking into account a number of points. I agree with the right reverend Prelate that, if possible, such hearings should be given little publicity and, when requested, be held in camera whenever possible. As a doctor and a parent, and as a hypothetical step-father to a young girl who wanted to marry, I hope, too, that the court would take into account many human features of each case. To legislate for all these would be impossible; to much detail cannot be introduced it to an Amendment such as this, which must, therefore, be worded in a broad and general way. Our Amendment says:
"the Court shall have regard to all the circumstances of the case".
That is just what we want.
In trying to answer some of the criticisms made by the noble Lord, Lord Boston of Faversham, I should like to enlarge a little on eight points, some of which may be developed as possible guidelines for a court at such a hearing. Four of them are touched on in our Amendment. Only one or two are likely to be significant at any one hearing. First, in making its decision about the appropriateness of a couple's marriage, the court could easily take into account their ages, especially if

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there is a marked disparity of age between them—for instance, if the man is in his fifties and the girl is still in her teens. For younger couples the court could inquire whether or not consent form a parent, guardian or magistrate had been requested or granted.
Secondly, the court could decide whether or not the proposed marriage would upset the stability, welfare and happiness of the family or families involved, especially the children, and more especially those who are too young to speak for themselves. Thirdly, one would also like the court to weigh up what is known about the health of the couple. A recent severe mental or physical illness might be an important factor. Drink, drug addiction or a severe depressive illness might persuade the court to delay the wedding for a while. Fourthly, other important points might arise if the girl was pregnant, the extent to which the pregnancy had progressed and whether or not an abortion was contemplated. The future of a baby might have to be considered, including its legitimacy.
Fifthly, the circumstances of any previous divorce, involving either person, might have to be gone into, with the cause of the breakdown of that marriage and the grounds for the divorce. Sixthly, another question for the court might be whether either party was taking undue advantage of a previous parent/child or in loco parentis situation. Seventhly, one would like the court to determine whether or not there is any moral objection to the marriage. Lastly, as a final example, may I mention what is already in our Amendment, that the court might consider the disposition of property: did it appear that either party had an ulterior motive, such as a desire for property or money?
As a medical and not a legal man, I hope and believe that there must be many other points of great personal and human importance which could safely be left to a kind and sympathetic judge, registrar or magistrate. If, after taking them all into consideration, there appeared to be no serious objections to a marriage between these step-relations—one or both still being under the age of 21—the court would wisely and properly allow this marriage. Its main duty would not be to prohibit such marriages, but to control them. If it thought, however, that there were
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sufficient contra-indications, it would be cautious and recommend that the marriage be postponed and reconsidered at a later date when conditions might have altered. This can easily happen; quite apart from the maturing couple possibly tiring of each other and changing their minds about marriage.
People may say that all this would cost money and take up the time of judges and courts. But I believe that many of the dangers that have been suggested as being inherent in the Bill of the noble Baroness could be avoided in this way by discouraging inappropriate and unhappy marriages. It will give some couples time to think out carefully what they are doing and allow others, who are really fond of one another, an early chance to start a full and normal married life, and whose children would be legitimate. I feel sure that the value of all this would far outweigh any contraindications or any costs involved.
I believe that so long as the judicial considerations do not prove insuperable, this safeguarding Amendment might give the Bill a good chance of being accepted, if not by the present Government (because of lack of parliamentary time), perhaps by another Government later on. If noble Lords agree with the Amendment, I should like to suggest that we invite parliamentary Counsel to consider its legal implications very carefully, and, if necessary, to reword it so that we may discuss it again at the Report stage.
6.30 p.m.
Lord HOUGHTON of SOWERBY: I rise to oppose the Amendment. I do not think that your Lordships should criticise my noble friend the Minister of State for intervening as he did early in this debate in order to put weighty considerations before the Committee, which we must take into account in coming to a conclusion on this Amendment. This is not a contest where there are the strict rules of the game. This is a debate; this is a discussion. If there are substantial criticisms of a Motion before your Lordships' Committee which the Minister wishes us to take into account, it is far better that we should have them early rather than late.
With great respect to the noble Lord, Lord Hunt of Fawley, he has just delivered a speech which paid little or no

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regard to the criticisms which my noble friend the Minister of State gave to the Committee only a little while ago. We have to adjust ourselves to the cut and thrust of debate; the different considerations that may be put before your Lordships at different stages in the discussion, and we must adapt ourselves to the changing trend of opinion, or of the intervention of criticisms. I think my noble friend the Minister did a great service. My own criticisms of this Amendment take a somewhat different form. I pay full regard to, and I am impressed with, the criticisms which my noble friend brought forward, but my objection to the Amendment is on more general grounds of policy. Here we have a proposal to remove some of the prohibitions on marriage within certain affinities. Although the proposals in the Bill make perhaps a wider sweep than has been the case on earlier occasions, nevertheless the considerations are similar.
Your Lordships' House was a persistent obstruction years ago to the removal of the ban on the marriage of a man to his deceased wife's sister. In fact, this House rejected that proposal so many times that Gilbert and Sullivan did a little doggerel about it:
"That annual blister, marriage to
deceased wife's sister".
Indeed, it was not until the Government of the day thought this farce had gone on long enough, year after year, that eventually the Government said that a Bill on those lines should be passed. I believe it was only passed when the whole of the Bishops' Bench walked out and left it to the secular part of your Lordships' House to pass that change in the law.
No attempt was made then, as my noble friend the Minister of State pointed out, to put any special protection upon those who might seek to get married when the ban was removed. It was assumed that if marriage is permitted, if it is lawful, then no special protection need be given to any citizen in regard to contracting such a marriage, unless on grounds of age that person is unlikely to know what he, or she is doing. We therefore have now a restraint upon the marriage of persons under the age of 18. But when the right was given to young people between the
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ages of 18 and 21 to enter into marriage without parental consent, without the supervision of the courts, when they were as free as any other citizen of any age to contract a marriage, no restraints or checks were thought to be necessary in order to protect them. They were assumed at the age of 18 to be able to enter into business contracts, contractual relationships with other people, to contract a marriage, to be called up for the Army. Indeed, they had bestowed upon them the full rights of citizenship. This, I submit to the Committee, is the principle of the matter. Having been conceded the full rights of citizenship, then whatever the rights of citizenship are, they should be free to exercise them without the supervision of courts, whether magistrates' courts, Crown Courts, High Courts, or any other courts, except as provided for in the existing law.
We have to consider here whether we are entitled to erode the freedom of full citizenship of persons over the age of 18 in this special respect. It has not been done for any other respect. Is it to be done for this one? The case has to be made out very strongly for doing so if we are to be justified in accepting this Amendment. What are the grounds for special protection—that is the word used by the noble Lord, Lord Hunt of Fawley—to be given to young people who may be about to contract a marriage within the affinities which we propose to extend freely to everybody else in the matter of marriage? Is it assumed—it may be; or it may be thought—that because of the relationship between persons within these affinities, and the proximity in the domestic household, or elsewhere, there must be some special safeguard to prevent young people from embarking on a marriage which might be undesirable, or even disastrous? Well, who is to say? This, of course, comes to the point raised by my noble friend, when he was considering whether the Amendment was satisfactory, of whether to refer the decision on all these cases to the judicial system. I take the view that judges are in no better position to decide what is a desirable marriage than is anybody else. These are extremely personal and intimate relationships, and I think it would be presumption on the part of a court to decide that a certain marriage was undesirable by reference to certain criteria, and that it

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should therefore be banned. I think that this is a power that we should not put in the hands of the judiciary.
Certain marriages that may be contracted may turn out to be undesirable, or disastrous. That applies to all marriages without these affinities. There is plenty of evidence of disastrous marriages at the present time, unhappily and unfortunately, but we do not try to check the divorce rate by introducing marriage by examination, or marriage by consent of the State, or marriage by consent of anybody else. If citizens are going to exercise their rights as citizens, surely the better course is to encourage wisdom, a sense of responsibility, and education and awareness. This is the fullness of the life of a free citizen; not to be checked and restrained, not to be prevented when other citizens are free, on the ground that this particular person is not wise enough, or experienced enough, to embark on an experience which is freely given to other people who are of a slightly different age.
I submit, therefore, that to pass this Amendment virtually means that we reject the decision of Parliament to extend the full rights of citizenship to the age of 18 from the age of 21. It also means that we reject the precedents of the past where, when the affinities were extended, no special restraints or checks were put upon the exercise of the right of the citizen when that took place; and that applied not only to the marriage of a man to his deceased wife's sister but the other way round as well. On those general grounds of policy, I think that the Amendment should be rejected.
6.40 p.m.
Viscount COLVILLE of CULROSS: My Lords, I do not so much want to follow the noble Lord, Lord Houghton of Sowerby, into the desirability of the Amendment on general policy grounds as upon the grounds of practicability. I understand the context in which it is moved, in that it is sought to present a safeguard between the bleakness, in some people's view, or the complete desirability of the Bill in its unadorned state, and the worries some noble Lords put forward on Second Reading and today. But there are difficulties in presenting this sort of task to the judiciary and I wish to underline some of
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the points made by the noble Lord, Lord Boston of Faversham.
We have here a paradox. The courts are being asked to sanction the proposed marriage after having looked at certain matters. First of all, there is a paradox, in that either both parties to the marriage will wish to have it take place—in which case there is no incentive for anybody to present to the court any of the adverse factors—or alternatively somebody will wish to oppose the marriage—in which case we are likely to be in for an unpleasant affair involving a good deal of expense and, if one considers it for a moment, a good deal of reopening of past sores.
Let us consider what the courts might have to do. I suggest to my noble friend Lord Hunt of Fawley that it is not a practicable proposition simply to tell parliamentary Counsel to redraft this because either you have this as a matter of principle in the way of a safeguard—in which case I suggest that this House must say what the safeguards are—or else it must be left without any safeguard at all; I do not think we can leave a matter of this importance simply to parliamentary Counsel.
There are certain matters of fact in the Amendment which were enumerated by my noble friend and about which there is no great difficulty; the ages and the degree of relationship between the parties are simple to establish. Paragraph (b) refers to the cause of the dissolution of a previous marriage, and here comes my paradox. The two parties who are applying to the court would no doubt wish to avoid any discussion of what happened by way of dissolution of a previous marriage in which either of them had been involved beforehand. The tendency since the beginning of this decade has been to get away from the causes of breakdown of marriage; the whole point is that it breaks down. One may need occasionally to go into conduct when it comes to financial provisions, but one does not go into conduct when dealing with the actual dissolution of the marriage itself. If that is to be resurrected on an occasion such as this, are previous spouses to be brought in? They have never had their say on most of these occasions. Will they be invited to take part in these hearings and, if so, who will pay for them? I seriously

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believe that this would reopen wounds which by that time one have hoped might have closed or rate been partly forgotten.
Under paragraph (c) there are the financial benefits. In a contested case—and one would assume, on the face of it, that this is not—there are methods whereby affidavits of means can be brought before the court, but in whose interest would it be in the present case to introduce affidavits of means or to check, on cross-examination if necessary, that the affidavits of means produced were accurate? Unless somebody is being positively disadvantaged, there would be no possible guarantee that the court had been told the truth and it would be very difficult for the court, and I should have thought improper, to seek to find out for itself.
Then there are the interests of the children and, Lord Hunt suggested, the stability of families. This immediately produces a situation—we discussed it not long ago in terms of domestic proceedings and magistrates' courts law—where, in not very dissimilar circumstances, one starts to have to bring in the social services of the local authority, or the equivalent in Scotland, or Northern Ireland, and reports are brought before the court; and on that occasion we had to make substantial procedural provisions whereby hearsay evidence could be handled, and so on.
There is none of that in this provision. Do we really want—and I believe that, with this wording, we should have to—to have people appearing before the registrar or magistrate to represent the rest of the family or the children whose stability is to be considered? How is this to be arranged? Is it desirable on an occasion such as this that the court should be forced—because it would be—to inquire into the interests of any other children and thereby bring counsel, solicitors or social workers into what I imagine the movers of the Amendment consider to be a very simple hearing? The very least that would be involved are substantial rules of court, substantial magistrates' court and county court rules and a good deal of thought. Then there will be the question of payments for all these further people's representation that must be taken into account.
816
It is all very well to say that these matters should be heard in camera—and, as they are family matters, in the first instance they will be because that is the normal procedure—but one of the difficulties of hearing matters of this sort in camera is that there is a great problem in providing for a similar approach before different tribunals. We must have some method whereby a certain consistency can be induced across the country. Of course this happens in the end because there are appeals and the matter goes up to a higher court; probably in this case it would be the Court of Appeal before the matter was ventilated publicly. Again, do noble Lords believe that these kinds of issue should be discussed in public in the Court of Appeal in order to supply consistency over a large number of subordinate courts across the land? Is that the right way to deal with it when, after all, they have only to wait until the youngest person is 21 and then they do not need the apparatus anyway.
I am not suggesting that one should not try to find a compromise, but as Lord Boston said, I envisage for judges and magistrates very substantial practical difficulties with which they would not of their own account have the power to deal. They could not force people to produce the information which would enable them to fulfil these tasks; they would have to try to persuade others to come and bring their advisers with them and pay their advisers, and there would be delay and a good deal of unpleasantness. I know the right reverend Prelate will not have intended all that to happen, but I am afraid it is the way it tends to happen in the courts and I do not see how one gets round it.
6.48 p.m.
Lord McGREGOR of DURRIS: My Lords, I welcome the spirit of the Amendment brought forward by the right reverend Prelate and the noble Lord, Lord Hunt of Fawley, and therefore hope they will not regard me as ungrateful if I mention a further difficulty which I have, although it is a difficulty which I think could easily be cured. The right reverend Prelate began with the High Court and then extended the jurisdiction to the county and magistrates' courts. There has in recent years been growing support for and discussion of the desirability of

817
establishing family courts. One of the main grounds of the proponents of these courts is to get rid of the overlapping jurisdictions which are commonly agreed to be a most undesirable feature of our family law.
The effect of the Amendment, with the three jurisdictions, would be to add further overlapping at a time when people are trying to get rid of it, and I would very much hope that, in whatever form the Amendment may subsequently appear, the right reverend Prelate and Lord Hunt will look at the reports which have appeared in recent years. I hope they will look, for example, at what was said on this issue in the report of the Committee on One-Parent Families. I hope that they will look at what was said in the two reports on family courts of Judge Graham Hall. I hope that they will look at the report of the research sub-committee of Conservative lawyers on family courts, which laid heavy stress on this point. Finally, I hope that they will look at the report of the Law Society sub-committee on family courts, published three or four day ago. It would be most desirable to avoid adding to the present disabilities.
6.50 p.m.
Lord MISHCON: I wish to address your Lordships briefly, not upon the basis of any procedural matter, but on a point of principle. With great respect to the right reverend Prelate and the noble Lord, Lord Hunt of Fawley, the Amendment attempts the worst of all possible worlds. It does so for the following reason. Either your Lordships will decide as a question of principle that there is nothing unseemly in a marriage of this kind, or you will not. If your Lordships decide that there is nothing unseemly, I would beg you not to embark upon a procedure where young people and older people, in order to get a legitimate consent to a marriage, are forced to appear before a court of law, whether in private or in public, and there go into matters of financial advantage or disadvantage, with all the unpleasantness associated with that, or into questions of conduct in a marriage which has unfortunately ended in divorce; and there I follow the Minister in what he said.
Apart from the difficulties which have been mentioned, there is obviously another
818
one. Most of us who practise the law and deal with matrimonial cases beg of people to hide the matrimonial past and, in a civilised spirit, to go through the procedure which is now common form and have a divorce by consent. This means that where a court is told that this has happened and there is a divorce by consent with no question of conduct upon any file at all, the court would presumably find it binding upon it, in order that it can carry out its duties, to call back before it the spouses now divorced and try to go into the question of why, despite the fact that they consented to a divorce, the marriage broke up. That would be an impossible, a lamentable procedure, quite apart from the fact that there would be put upon such people a stain of some impropriety, of some unusual feature of their marriage which, if your Lordships pass the Bill, as I understand it, you would be seeking to avoid.
I can understand someone opposing the Bill root and branch. There are in this country some religious sects who will not permit marriage within these affinities, or some of them, whatever your Lordships do. But if your Lordships pass what is proposed, but still want some protection for the young, I would beg you to have the courage to say that no such marriage shall take place where one of the parties is under 21. If your Lordships stop there I can find both logic and some psychological balm. Make it that, if that is a protection that your Lordships still feel is required. But if the Bill is to be passed, and if your Lordships agree with it in principle, I would beg of you not to put upon it the imprint not only of something which is unclean, but also something which obliges people to go to courts of law—places where I and some others who have spoken in the debate find ourselves at home, but to which most people feel they go only if they are accused of something or are in an unfortunate, unwelcome dispute.
6.57 p.m.
Baroness WOOTTON of ABINGER: First, I want to thank the right reverend Prelate for having made a very great concession to my views in that he limited his restrictions on the marriages in question to persons under a certain age. I say this because I hold very strongly that it is undignified and improper that any

819
restriction of this kind should be imposed upon older people. However, I still feel—and I think that the right reverend Prelate recognised this—that it is a mistake (as my noble friend has just said) to differentiate between various conditions of marriage; either the people involved should be allowed to marry, or they should not be allowed to marry.
The noble Lord, Lord Hunt of Fawley, produced an alarming catalogue of reasons why they should not marry, of which all except one I think might be held to be arguments against early marriages, not arguments against marriages of stepchildren and step-parents. Addiction to drugs or drink, and matters of that kind might be an objection to marriage in any event, but are not a special objection to the marriage of a step-child.
There have been a number of hints of dark dangers, but I do not think that anyone has come out into the open to say what the dark dangers are; except, incidentally, that Lord Hunt referred to persons who have been in loco parentis. I see, and sympathise with, the image that has been in the minds of a number of your Lordships, and I have gathered this view from conversations with some of your Lordships before the Bill reached this stage. Some of your Lordships see arriving in a family a step-child whose arrival they assume to be a result of divorce, having forgotten about death and widowhood. They may see this step-child as a young adolescent girl who is very attractive. They see a risk, which I recognise to be a risk, that the male head of the family may be attracted to the girl and that a sexual relationship may arise. I admit that that is a danger to the stability of the family, but I do not think that the danger is created by the Bill. The Bill has nothing whatever to do with the attraction which results in a sexual relationship. It merely says whether the relationship should lead to marriage, and I belive that in some respects the Bill would discourage that relationship. I say that because if there was such a relationship, the man would always have at the back of his mind the thought that the girl can afterwards turn round and say, "Now you can marry me". So on the whole, I believe that the Bill would create an obstacle to such
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relations, rather than encourage them, though I do not imagine that in the emotional condition such practical details weigh so large.
I would point out that this danger exists in families in any case. One does not serve for 20 years as chairman of a juvenile court without being aware that the fathers of families are sometimes attracted to their daughters, and not merely to their step-daughters. It so happens that during those 20 years I do not think that I encountered a single case in which a man had a sexual relationship with a step-daughter, but there were quite a number in which men had sexual relations with their daughters. The stepdaughter situation is, of course, much more uncommon, and so such incidents are less likely to happen.
It seems to me that the practical objections which have been raised by my noble friend Lord Boston and by the noble Viscount, Lord Colville, are very real. Here are these young people who, unlike their contemporaries who do not happen to be step-children, wish to marry and are obliged to go before a court which is going to make the most detailed examination into whether they have contributed to the breakdown of the previous marriage. You can contribute to the breakdown of somebody else's marriage in an enormous number of ways—by pestering them, and not merely by committing adultery or committing what used to be matrimonial offences. The minutiae into which the court would have to go—and in many cases the court would mean one person—are, I think, absolutely endless. So, much though I respect the desire of the right reverend Prelate and the noble Lord, Lord Hunt, to guard against these dark dangers, I think the dark dangers are something which will not be guarded against by attaching all these conditions to marriage. I think that the fact that the Bill legalises marriage is an entirely different proposition.
At this stage, I think that perhaps I will not take the matter further. The rest of what I have to say is more relevant, I think, to other Amendments. But I still feel that there should not be investigations. If it is a question whether there should be a limit on age, that is a different matter; but there should not be this kind of detailed investigation, with the practical

821
difficulties which arise from the overlapping jurisdictions of the courts. At this stage, therefore, I will leave it at that.
7.2 p.m.
Lord ROBERTSON of OAKRIDGE: The experiment that is proposed in the Amendment moved by the right reverend Prelate has, in a similar fashion, been attempted in New Zealand, and some details have come into my possession today as to how they have tried to do that. I cannot inform your Lordships' Committee about how, in the long run, that has worked out; but there the position is that where the marriage would be prohibited as being within the degrees of affinity prohibited by the Marriage Act 1955, in their case, the parties may apply to the Supreme Court for consent to their marriage, and the court, if it is satisfied that neither party to the intended marriage has by his or her conduct caused or contributed to the termination of any previous marriage of the other party, may make a dispensing order which will enable the marriage to take place. They have a complete and absolute discretion as to how to proceed.
The five principles which have emerged as those on which they proceed appear to be: first, the relationship between the two people concerned and whether, in particular—and I think this is a very important point—there has been any relationship in the nature of guardian or ward, or whether one acted in loco parentis; secondly, whether the marriage would be abhorrent to public opinion; thirdly, whether it would be in the best interest of public morality; fourthly, as is in the Amendment, whether there is any ulterior financial motive; and, lastly, what would be the consequences in respect of the birth of children. I think these are matters which perhaps, if it is decided to accept this Amendment, could usefully be considered at a later stage.
The other thing I should like to say follows on from something that the right reverend Prelate said in his opening remarks. He said that no fundamental religious issue was at stake. With the very greatest respect, I should like to raise a question mark on this, and I do so, not only on the authority of the Levitical laws but also on what was said by St. Paul, who was one of the great leaders of the early
822
Church. In writing to the Corinthians—it is 1 Corinthians, chapter 5—he said:
"I hear that there have been acts of immorality among you, of a nature that you would not expect even among heathens, that a man has been living with his step-mother".
That was his view, the view of one of the great leaders of the early Church, and I think it emphasises that at that stage, and I think for many of us now, there is in fact a fundamental principle at stake. Whether or not your Lordships' Committee should override that principle is, of course, a matter to be considered; but I feel that if one does override a principle like that one is on dangerous ground, and that safeguards will be needed. This Amendment is an obvious attempt to introduce such a safeguard. My own feeling is that if we cannot find practical safeguards of the nature of that contained in this Amendment, then we should think very carefully before sending the Bill to another place.
Baroness WOOTTON of ABINGER: I gather that the noble Lord thinks that it is immoral for a young person to live with his step-mother. That is exactly what this Bill is trying to prevent, because the present position, by preventing a marriage between the parties, is encouraging the parties to live together without marriage. In that respect, if they cannot marry, I grant you, it is a threat to family life—and they are in fact doing this. I have particulars of a number of couples who, in despair, because they may not marry, are living together. They are not blood relations, they have no other marital ties and they earnestly wish to marry, but they are not allowed to marry by this law because they are relations by affinity. They therefore live together without marriage, and they produce illegitimate children who can never be legitimated by the subsequent marriage of their parents. If St. Paul, Leviticus, or whoever it was, disapproves of living with your stepmother, that is exactly what the present situation encourages.
Lord ROBERTSON of OAKRIDGE: I am grateful to the noble Baroness for raising this matter, because I think it illustrates that there are practical points that have to be considered in relation to religious principles, and this is what I feel we are here to do.
7.16 p.m.
Viscount LONG: I should first like to apologise to the noble Lord, Lord Boston, for having jumped up in haste because I was so frightened that my noble friend Lord Hunt would not get his word in. So I apologise to him for that. When we received this Bill for the first time, I do not think many of us, during discussions outside the Chamber, realised at that time, on first looking at the Bill, how sensitive it was. I remember picking up the Bill and walking out of my office thinking, "There is nothing wrong with this; all is well". I remember walking down the corridor, a cold shiver going down my spine, and thinking, "Get back to your office; there is something very sensitive about this Bill".
Of course, anything to do with the family, anything to do with marriage, divorce and so on, is very sensitive indeed. I suppose all the lawyers—my noble friend Lord Colville and others—have discussed divorce, and so on. They have all discussed the fact that they could get the remedy right. I have never found the new divorce laws right. I do not myself collect divorce laws, but there is still hardship there; and now we are moving on to the further situation by picking up the Marriage (Enabling) Bill. Sensitive, yes; and listening in this Chamber to the discussion on this Amendment moved by the right reverend Prelate the Lord Bishop of London, I have heard little about the family. I have heard about what will happen if the parties have to go to a court, and what will not happen, how it can work and how it cannot work. Yet in fact what we have been trying to establish through this Amendment standing in the names of the right reverend Prelate and my noble friend Lord Hunt is a safeguard in case something might possibly go wrong. In the case of previous Bills, and so on, everyone in your Lordships' House has always said, "Nothing ever goes wrong; all is well". Then, the next moment, a year or two later, something having happened, something in the Act has had to be corrected.
What we are looking at in this, then, is some authority to govern a particular side of the family. I quite agree (and the noble Baroness knows my thoughts on this) that, if I have got my ages right, anybody of the older generation (he being
824
someone aged 65) could well marry his step-daughter, who might be 35 or 40. That would be quite in order; there is nothing wrong with that. They should then be "of right mind" and able to do that. That age group does not worry me.
The sensitive area is the younger generation and the possibility of establishing a safeguard there. I heard the noble Lord, Lord Houghton, saying that we had had conscription at 18 and that the age of coming of age had been lowered and so on. But the situation that we are concerned with is that of a family in which a young girl is to marry her stepfather. The family may have a tremendous row over this and there is no power outside the family (as there is now: a priest, the head of the greater family, et cetera) to control it. If the Bill goes through, the only safeguard is within the group. If there is a row, who can help? I can understand that it is a difficult situation in which to ask for a ruling from a judge in the High Court. My noble friend dealt with such a situation. But during the debate in this Committee, I have heard no suggestion how to counteract or safeguard it. It is easy to talk, easy to destroy but not to construct something.
I am amazed that we cannot find a remedy to safeguard the younger generation—and by that I mean those under 21—in regard to the Amendment of the right reverend Prelate. If I may say so to the right reverend Prelate and to my noble friend, I am not happy that we have the right solution. There must be some solution. At the moment I am lost. In my weakness and confusion, may I suggest that if the right reverend Prelate were to withdraw his Amendment as at present drafted, we could go into a huddle to try to find such a safeguard for the younger generation and then come back at the next stage of the Bill with a proper solution. It seems to me that we have not yet got the answer. The Amendment is too strong and the courts perhaps cannot deal with it. I am not a lawyer. I hope that in adopting this perhaps turncoat position we could possibly find a solution for the protection of the younger generation. We may not be able to do so, but I should like to go into this again at another stage of the Bill. We do not have the right answer at this stage.
Lord MISHCON: Will the noble Viscount permit me to remind him that one safeguard was suggested? That was the broad safeguard of no such marriage taking place until the age of 21—full stop. Will the noble Viscount deal with this and say why he objects to it?
Viscount LONG: I am objecting to the family situation where a young step-daughter is involved.
Baroness WOOTTON of ABINGER: The suggestion was that the parties were to be at least 21.
Viscount LONG: If the two parties have to be 21 or over, then it is all right. It is the 21-and-under group that I am worried about.
Lord MISHCON: Perhaps I may apologise to the noble Viscount for not having made myself clear. He said that nobody suggested in the course of this debate any way of protecting those who were young. He defined "young" as under 21. In the course of my remarks—and I believe that this also came from other noble Lords who participated—the suggestion was made that rather than have these impracticable (and, we thought, psychologically wrong) conditions, why not go all out for protecting the very young age group that the noble Viscount talked about by saying that such marriages are to be permitted generally but are not to be allowed if one of the parties is under the age of 21—full stop?
7.15 p.m.
Viscount BARRINGTON: As one of the speakers who reluctantly objected to this—and I mention this point only because it arises out of what the noble Lord has said and with which I strongly sympathise—I believe that a plain Amendment that the age should be altered from 18 to 21 would be much simpler to get through. The noble Lord, Lord Houghton, said in his speech that no other case existed in this country where those free rights which normally one gets at 18 are not given until 21. I speak under correction, but I think that the noble Earl, Lord Arran, in his homosexual Bill made such a distinction. It was argued about a good deal and I remember there was a discussion about whether it should not be for consenting adults of 18, 21 or 25.
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The late Lord Montgomery of Alamein produced a manuscript Amendment (which he did not press) saying that he thought the age ought to be 85. I do not feel strongly about Amendments of that kind, but I think there is a special case here if we believe—as many of us do believe and as I tried to express when I spoke—that the interests of the children are very important. But I think it might be considered either at a later stage or outside the House.
Another point is relevant. The noble Lord, Lord Boston of Faversham (who I thought gave a helpful view of Government opinion earlier on), raised as one objection against making it legal to marry one's step-daughter the fact that this does not apply to one's sister-in-law. I think I am right in saying that one is allowed to marry one's sister-in-law without any age constraints. There seems to me a fundamental distinction in the matter of in loco parentis. I am not a parent but I have been, in a sense, in loco parentis because I have four nephews and nieces who were born during the last war. They cannot remember their father. I was their uncle and lived in the same house. They did not regard me as a father, but I was aware of some of the intimate relations which children have towards a father which they would not have, for example, to an aunt—and they had many aunts as well as this indifferent uncle.
I think that these two things are worth bearing in mind in so far as there have emerged dark hints of possible seduction. It seems more likely that a young lady who had married, say, an elderly widower might reasonably feel that she would prefer the step-son who has now grown up. That is more likely than her preferring a brother-in-law. I know this is hypothetical, but those two points are important if our aim in this Bill, as I think it is, is not only to help people who want to marry and are unreasonably prevented from doing so, but to help children and to give them this feeling of satisfaction, of knowing where they are, particularly in these days when divorces are so prevalent.
Viscount LONG: I must apologise to the noble Lord, Lord Mischcon, for being so dense just now. If I may say so, I think he has offered a great solution. I apologise because I said that nobody in the Committee had offered a solution as to

827
what we should do. There is no doubt that the noble Lord has offered something I am wondering whether the noble Baroness and the right reverend Prelate have taken on board what the noble Lord has said because after this Committee stage we may be able to look at this again without a very complicated Amendment.
Lord MISHCON: The noble Lord has spoken with his usual courtesy and had no need to apologise at all.
Baroness WOOTTON of ABINGER: I should he perfectly willing, if the right reverend Prelate will withdraw his Amendment, to come back at the next stage with an Amendment providing that marriages with the affinities that this Bill proposes to legalise should not be valid if one of the parties is under 21. I should prefer 18 because that fits with the general age of majority, but I would certainly not bother over two or three years. If an age limit were set, I would be perfectly happy to accept that.
Viscount INGLEBY: May I briefly come in at this point to support this Amendment. The idea of a step-father marrying a step-daughter comes as something of a shock to most of us, although I accept the argument of the noble Baroness that there are special circumstances where there may be nothing against it. We have all been rather boxing in the dark on this one. People have been rather prognosticating what might or might not happen if this Amendment was passed. Although most of us have not had time to study it, New Zealand has 24 years of experience of something similar to the proposal in this Amendment. Their Marriage Act of 1955 has a very similar clause in it. I have only particulars of New Zealand's cases which reached me this afternoon, but I suggest that before coming to a decision on this we would do well to study that experience. Under that particular Act all cases within the prescribed affinities have to have the permission of the Supreme Court; there is no age limit. I suggest that before we consider this question again it would be helpful to us all to study their experience.
The Lord Bishop of LONDON: I am most grateful to noble Lords who have taken part in this debate. I do not want to prolong it unnecessarily, nor do
828
I want to make any enemies unnecessarily; but I must remark that most of the objections to my Amendment have come from lawyers. I have the greatest respect and affection for the legal profession and I find the company of men of the law most congenial. I count it as one of my greatest honours to be an honorary member of their profession. I hope that they will not take it amiss when I say that they have a genius for making things difficult. Those of us who come in the sancta simplicitas of wanting to apply sanctified common sense to a situation get rather depressed when lawyers come and point to all the difficulties and see problems round every corner. I know that it is their profession to do so and their duty to do so. I shall not go into these points further because I do not want to complicate the matter any more.
I imagined that my Amendment was ameliorating the situation in that it would provide some way for those under 21 to marry within these at present prohibited degrees if they wanted to do so. If however I have the support of the noble Lord and generally of the sense of the Committee that they will support an Amendment on Report stage which simply says "21", then there is nothing that would give me greatest pleasure because that suits exactly the point that I am trying to make. I only put these conditions and the appeal to the court because I thought that the Committee would want to have some relaxation on that rule.
I do not think it can be all that difficult to go to the court when for instance one has to go to the court if one wants to marry between the ages of 16 and 18. Presumably they have to make a value judgment on the situation and they have their rights as citizens completely barred if they want to be married under the age of 16. Therefore, I thought I was doing something that would have commended itself to the Committee in making some way through, via the advice of the courts, if people wanted to be married under the age of 21. If however I have the support of noble Lords and, when it comes again, they will give that support, I am very happy to withdraw this Amendment, and I hope that the noble Lord, Lord Hunt of Fawley, will agree on the understanding that we shall have that support when we bring the matter back again on Report stage.
Baroness WOOTTON of ABINGER: I am not giving an absolute undertaking to accept 21. I shall accept 18 and I will probably accept 21.
Amendment, by leave, withdrawn.
[Amendments Nos.3 to 5 not moved.]
On Question, Whether Clause 1 shall be agreed to?
7.27 p.m.
Lord BOSTON of FAVERSHAM: I do not intend to detain the Committee for more than a few moments, but I felt it necessary to intervene at this point. The Committee may recall that towards the end of my speech in the Second Reading debate I mentioned that, if the Bill was given a Second Reading, the Government would wish to see some Amendments made mainly of a technical nature. Because the technicalities of marriage law are somewhat complex—and we have been experiencing some of the complexities of these matters this afternoon in the very valuable discussion that we have had—I regret that it has not been possible to have the proposed Amendments drafted in a satisfactory form in time for consideration today. If I may, I shall bring them forward at Report stage. My noble friend Lady Wootton has been kind enough to tell me that the deferment of proposed Government Amendments until Report stage will not cause her any great inconvenience. I hope the Committee are willing to take an equally indulgent view.
Very briefly, it may be helpful if summarise the matters on which it seems to the Government that Clause 1 of the Bill is in need of amendment. Similarly, when we come to Clause 2 I propose to mention one brief point on that on which we are considering an Amendment. The first point—perhaps not quite a technical one—concerns the application of the Bill to Scotland. This was one of the points that 1 mentioned in the course of my Second Reading speech. I should be happy at this stage to outline in a little more detail the particular point concerning the extension to Scotland if it were felt by the Committee to be desirable, but in view of the time, unless the Committee wishes to have a clearer indication, it may not be necessary for me to go into the point but simply to mention it. If that is acceptable—and I am most grateful to the Committee—the other two main points concern
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marriages contracted in this country where parties are domiciled overseas and the obvious case of marriages contracted overseas where parties are domiciled in this country. There is more and it would be possible, even in the absence of detailed drafts to say, but again the Committee may feel that the confirmation that they will be brought forward in proposed amendments at the Report stage is sufficient.
There are a couple of more minor matters of an equally technical nature, one of which would involve the redrafting of Clause 1, but none of the substance which your Lordships have already put into Clause 1 will be in any way affected. If it is not necessary for me to say more about that now but spell it out in detail when we come to Report stage, I shall do that.
Clause 1 agreed to.
On Question, Whether Clause 2 shall stand part of the Bill?
Lord BOSTON of FAVERSHAM: Even more briefly than before, I should like just to mention to the Committee that there is one point on which the Government may wish to propose an Amendment to Clause 2 at the Report stage. This is in addition to the extension of the Bill to Scotland which I mentioned just now. We are considering whether it might be desirable to allow a short interval between the date on which the Bill receives Royal Assent and the date on which it comes into force, solely in order to provide time for some necessary administrative arrangements to be made. Perhaps I may indicate quite clearly at this particular juncture that I would emphasise to the Committee that there is no question here, if this proposed Amendment were acceptable to your Lordships, of leaving the date on which the Bill would come into effect to the discretion of Ministers. The interval between Royal Assent and the Bill coming into force would be specified in the Bill, if that were acceptable to your Lordships, and, with the Bill in its present form, we should expect this interval to be only a month or two.
The Lord Bishop of LONDON: I am not sure whether I am quite in order, but may I ask the Minister for direction? Does he feel that the two subsections in my Amendment regarding Sections 2 and 3

831
of the Marriage Act and also the safeguard for wards of court would also have to be written into the Bill?
Lord BOSTON of FAVERSHAM: I am afraid I am not sure about that at this stage. I think I should like to look at that to make quite certain about it. If that would be acceptable to the right reverend Prelate the Bishop of London, I will, if I may, either drop him a line or speak to him about these points as quickly as possible.
The Lord Bishop of LONDON: I was told on good authority that we were in danger of doing something we did not intend to do unless we made reference to Sections 2 and 3 of the Marriage Act. As I see that in the Marriage Act 1949 there is specific reference to wards of court, I thought that this Bill should probably have some reference to them as well.
Lord BOSTON of FAVERSHAM: I am very grateful indeed to the right reverend Prelate for having raised this point. I will certainly undertake to follow it up.
Clause 2 agreed to.
House resumed: Bill reported without amendment.
Baroness LLEWELYN-DAVIES of HASTOE: My Lords, since my noble friend Lady Stedman is not here, though I am sure she will be here in a minute or two, would the noble Earl like to proceed and we will take a note, or would he rather adjourn for five minutes?
The Earl of KINNOULL: My Lords, I should be happy to adjourn, if that is the wish of the House.
7.35 p.m.
House adjourned during pleasure.
7.40 p.m.
House resumed.

LISTED BUILDINGS: COMPENSATION FOR COMPULSORY PURCHASE
The Earl of KINNOULL The Earl of KINNOULL rose to ask Her Majesty's Government whether they
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are aware of the apparently inequitable basis of compensation payable in cases of compulsory purchase of listed buildings; how this has affected adversely certain charities; and whether they will review the compensation provisions. The noble Earl said: My Lords, after that brief intervention, may I welcome the noble Baroness, Lady Stedman, here, and say that I myself experienced a similar problem about six months ago, but in my case I did not arrive at all. I rise at this very late hour to ask a Question which has a slightly drier note about it than the previous business of the enthralling Committee on the Marriage (Enabling) Bill, but it is one of very great importance, particularly to those who are concerned with these matters.
In essence, the Question is to ask whether the Government are satisfied with the present compensation provisions governing listed buildings, particularly redundant listed buildings, and whether they consider that these provisions are proving fair and equitable, particularly in the light of the change under the 1974 Town and Country Amenities Act. I ask this Question particularly for the sake of Churches of all denominations, who perhaps have more listed buildings, and indeed redundant listed buildings, than any other bodies in the Kingdom. I believe that the Church of England has no fewer than 11,000 listed buildings.
I am glad to see the right reverend Prelate the Bishop of London here, because he has a very special responsibility for these buildings, as chairman of a committee representing many different churches. Indeed, on a number of occasions he has addressed the House about this problem, and I do not think that the church has a better advocate than the right reverend Prelate.
The House will recall that the compulsory purchase and compensation rules are somewhat of a minefield of complexity, not only for the layman but also for the professionals. Compensation is based largely on the Land Compensation Act 1961, but listed buildings and redundant listed buildings come within the Town and Country Planning Act 1971 and, more recently, the Town and Country Amenities Act 1974. The simple basis of compensation—and I hope that I am accurate in putting it in this way—is that if a listed

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building, such as a church, is in full use but is the subject of a compulsory purchase order, because a proposed motorway is likely to go straight through it, then, if there is a clear demand for another church to replace it and it is built, the compensation will be full reinstatement. I am told that at the present time this figure could be as much as £200,000, or even more.
But if the church authorities decide not to rebuild, but to devote that compensation to improving other existing facilities, then the compensation will be for site value, which is governed by the alternative use granted by the planning authorities. In that case it might be very good news, or it might be very bad news, but it is not full reinstatement and, in a sense, that is rather sad. But if the church is a redundant listed building and, unfortunately, no motorway is likely to knock it down, then the compensation will come under the 1974 Act, and after a recent case, to which I shall briefly refer later, the interpretation of the compensation under that Act—and when I say "interpretation", I mean that the matter is still subject to negotiation—could be as low as £1.
I do not intend tonight to deploy any of the very strong arguments about the Church's work and the need for its support. I know that the right reverend Prelate and my noble friend Lord Gowrie are much better equipped than I to argue that. I know, indeed, that the noble Baroness would not be unresponsive to that. But I should like to question the very simple issue of whether the provisions in Section 6 of the 1974 Act are proving to be as intended, and whether the fears, which were expressed very strongly by the right reverend Prelate at the time of the passing of that Act, have come to fruition. I would add that that Act, which was piloted through this House by my noble friend Lady Young, received very wide support, but because of the pressure of time this House was not able to amend it. Only last night, I looked back at the report of the discussions that took place on this very section that I am now asking the noble Baroness to look into.
The purpose of limiting the area of compensation under the 1974 Act was, I believe, twofold. First, there was the
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argument that a speculator might enter the field and buy a listed building, and then benefit by a "killing" through the compensation regulations under existing legislation. I would add that there was never any evidence given in either House that that had happened, or indeed that it could happen; and, as a valuer myself, I find it difficult to believe that a speculator would wish to become involved in such a very risky business. But my noble friend Lady Young gave a more practical reason. She said—and I think that she had a lot of support for the general contention—that it was wrong for a local authority to have to pay more than an open market value, because it had to assume that a building could be redeveloped when, in reality, it could not be demolished. I think that that was a reasonable argument.
But what really transpires from this legislation? Perhaps I may use as illustration the case of a redundant Colchester church. This church was built in, I believe, 1770, and it is now in a very high conservation area of Colchester. In 1971, it was listed as Grade II and in the same year it became redundant. For a period of years, discussions took place with the local planners as to what should be the alternative use; and I am sure that in the case of every redundant church it is very difficult to find a suitable alternative beneficial use. Planning applications by the trustees of the church were sought and refused, and an application went to appeal but was refused. Then an application was made to demolish the church and this, too, was refused. Finally, and reluctantly, when all avenues of beneficial use had been explored, the trustees sought a purchase notice from the local authority, which they were entitled to do, but that was refused. The trustees then appealed and won in, I think, 1974. Since then, there has been an argument over the value between the district valuer, acting on behalf of the local authority, and the church's own valuer.
As I see it, the whole matter hinges on the interpretation of the 1974 Act. I am told that, in the view of the district valuer—I shall not comment on the rights and wrongs of this case—this old 1770 church is worth only £1 under the provisions of the 1974 Act. The reasons he gives—understandably, perhaps, in his view—and the assumptions he has made are that

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it is no more than a liability. On the other side, the other valuers are looking for other cases of redundant churches—not in that area—which have been sold. I understand that they are looking for £25,000 to £40,000, so there is a huge difference between the assumptions.
I know that valuers have a reputation for being argumentative. I am a valuer, but I hope that 1 am not too argumentative. However, I must say that this is a rather sad argument which has arisen between a church and a local authority who are both serving the community. I do not wish to comment further on this case, other than to raise it with the noble Baroness. However, I question whether the provisions of the 1974 Act are working satisfactorily. For instance, when a church is looking for a new site is it right that it should be asked by a district valuer to pay £20,000? On the other side of the coin, when it is trying to dispose of a redundant church is it right that it should be offered only £1? Should the listing of churches have such a grave effect? Have the community not a moral duty to pay a proper site value? These are issues which I hope the noble Baroness will deal with and, indeed, look into.
I believe that the Colchester case is a disturbing example of the possible effects of the 1974 Act. I do not know how many other cases there are, nor do I know whether the noble Baroness can answer that point. Compensation valuations under compulsory purchase orders are never easy. The valuers on both sides have very special responsibilities. They are asked to make assumptions here, to deduct notional figures there, and sometimes to look—particularly in the case of redundant churches—at an almost nonexistent market. I do not suggest that legislation should necessarily be altered by an Act of Parliament but I think that there is a case for the noble Baroness to look into; namely, the working of the 1974 Act, in conjunction with the compensation provisions. I hope not only that her Department will look into it but that they will see whether they can issue a circular and guidance which could assist both valuers and charities.
I have one other very brief point to raise regarding listed buildings. It relates
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to the system of listing. As the noble Baroness knows, this system was altered some years ago, and owners of buildings were not consulted as to the listing of their buildings. It is now clear, I think, that the listing of buildings has a detrimental effect upon the valuation and management of property, and it is only right and proper that the owners of buildings should be consulted prior to the confirmation of listing. I hope that the noble Baroness can deal with that point when she replies.
I apologise for having spoken for so long. As I shall not have a chance later on to thank my noble friend, the right reverend Prelate and the noble Baroness, Lady Stedman, for staying here tonight, may I thank them in advance for taking part in this debate.
7.55 p.m.
The Earl of GOWRIE: My Lords, despite the lateness of the hour and the intricacies of the Bill which preceded my noble friend's Unstarred Question, I do not think that he need apologise for keeping us. In my view, he did not speak for too long. He was introducing, I would suggest, a proper, interesting and particularly useful subject for this House to consider, since it is for this House from time to time to examine the working of legislation rather than to fulfil a political or other commitment to revise it. In my brief remarks, I am going to play very much the second fiddle to my noble friend—everything that he said I endorse—and I shall simply advance some personal views and also indicate to the House the thinking of the official Opposition on the matter.
May I start with a short reminiscence. I have two friends who live in different parts of the country. Sometimes I am fortunate enough to go to stay for weekends with those two friends. One of them whom shall call John—I shall not give him a "plug" by mentioning his real name—is a prospective Tory candidate in the county of East Anglia, which is notorious for the beauty and quantity of its churches and which is also notorious for the headaches involved in their upkeep. On one such extremely pleasant weekend he took me around no fewer than 14 churches. Each one of them seemed to be more beautiful and more of a statement about the civilisation which had

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produced it than the last. My friend is quite actively involved in Church affairs. When I thanked him, he said to me, "I agree that we've had a wonderful afternoon, but of course it is wrong to expect that the problems which we as a Church have to face"—he was speaking of the Church of England—"in our pastoral work in the inner cities should have cast around them this intense burden and financial difficulty of preservation".
My other friend lives in an altogether different part of the country. He is a man who owns a pleasant and quite large country house. He is a well-to-do fellow. It so happens that opposite his country house there is a very pretty small parish church which, I imagine, in the days of yesteryear—namely, in the 18th century when it was built—was attached to the house. The village in which my friend lives is barely a hamlet; there is only a handful of buildings. There is no doubt that the church is a very attractive amenity for my friend. It is part of his view and his environment. If he marries a daughter, I think that he may use the church, and he may celebrate Christmas there if he can find a friendly parson to come and help him. Fundamentally, however, the church is non-operational. As he is a well-off and responsible man, he spends quite a large amount of money on the upkeep of this church—and so he should, because he can afford to do so. Furthermore, it is part of his amenities. However, the message of both of these cases must, I think, be that the chief role of the Church—and I believe that the right reverend Prelate will agree with me—is not the maintenance of listed buildings. When I say "the Church", I am using the phrase ecumenically; I mean all denominations. In any case, there are far too many churches for them to be able to do so, even if they were to interpret their role in that way.
Many parishes will have a special feeling for their church as a visible or architectural sign of grace, if you like—just as individual owners have a special feeling for their houses. And the more beautiful the house, perhaps, the more lavish the attention that is devoted to it. There is, however, this question of the difficulties and responsibiliies of ownership and upkeep. We must draw a real and important distinction between a person who takes on a listed building and owners
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like the Churches and some public institutions—British Rail has been suggested to me in a brief—and, no doubt, private owners who have inherited listed buildings or who owned them before they were listed. A person who acquires a listed building does so, in the main, with his eyes open. He takes on its responsibilities and burdens, but he also takes on the benefits and delights of such an asset. I speak as a person who until recently owned a Grade II listed building. I acquired that building. It was quite a headache to me financially, but it was very worthwhile and rewarding to try to improve it.
The case of the Churches is that they and other such bodies do not take on listed buildings; they are landed with them. A listing notice can become a great interruption of their cash flow, to put it in business jargon—indeed, a disaster. It may mean not only a heavy and continuing liability for repairs—and repairs to listed buildings, particularly to churches, are liable to be more costly than repairs to more modern edifices—but also the possibility, which was raised specifically by my noble friend who dealt with compensation, that they will not be able to realise for other purposes (for pastoral purposes, let us say) the capital value which is locked up in the building and the site. Therefore, I hope that this occasion may be used by the Government to set up, if it can be done, some inexpensive way of monitoring cases—the Colchester case was mentioned by my noble friend—where this kind of imbalance and interference with their proper task could be taking place.
Speaking for the official Opposition, we on this side of the House would like to see the position that where the owner of a church or listed building has handed it over to a local authority for a nominal or peppercorn sum there might be provision later for compensation, should a huge profit be made. It is obviously unfair to sell something for £1, let us say, if later that asset is going to realise many thousands of pounds and the original disposer—particularly if it is a public body or a church body—is not able to make use of its asset.
Before 1974 the owner retained the value of his property and the acquiring authorities suffered even if they had no

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hand in the listing and did not agree with it. But since the Act the financial burden has been shifted to the owner, even though he might have had no hand—he would certainly have no hand in the listing—and indeed the listing may have taken place only after he acquired the building. So I think my noble friend is quite right to say that where a listing takes place the owner must be involved a little bit in the decision, consulted and given good warning of what his responsibilities and liabilities may be.
That gets us talking about individual owners perhaps a little more in the direction of private houses, listed buildings and churches and although of course our Unstarred Question was particularly concerned with churches my noble friend was right to point out that very many of these cases, and cases where the Act in question might not be working satisfactorily, are punishing to owners. Our philosophy on this side is to try to give financial inducement by way of grants to owners—including, of course, churches, and indeed we pressed for churches to receive help in the Town and Country Amenities Bill and our representations there were accepted. Of course, we would rather do this by easing taxes, by giving deductions than by handing out money, as it would be cheaper in real terms. I think the message coming from this side of the House is that we in no way wish to alter or radically to amend the Act but we are disturbed, as my noble friend has been, about some of its provisions in practice and we are grateful to him for raising them. When we form an Administration we shall look into them ourselves, but until that happy, and perhaps not too far-off day, we look forward to hearing what the present Government have to say.
8.3 p.m.
The Lord Bishop of LONDON: My Lords, the noble Earl, Lord Kinnoull, was generous enough to thank us for staying behind to speak on this Question which he has raised: the boot is really on the other foot, for it is we who are very grateful indeed to him for raising this matter and I should like to express my gratitude to him for it is one which is of considerable importance and one which is creating, and increasingly will create, a sense of injustice. Most of the instances that have been given
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to us so far have been ecclesiastically orientated, and of course that is understandable because the Church has by far and away the largest number of listed buildings to deal with, but I think we ought to say from the outset that this does not only affect the Church; it affects a great many private owners; and it affects a great many charities who own property of this kind. Nevertheless, in the Churches we are very much affected by it and therefore I speak in this debate as chairman of the Churches Main Committee which represents all the Churches in their relationships with Government.
This debate carries me in mind back to the debate on the Second Reading of the Town and Country Amenities Bill in this House in July 1974. That Bill, which duly became an Act, was generally regarded as desirable and therefore it was welcomed, but there were features about it to which some of us took strong objection and under normal circumstances we should have sought to amend it, but that opportunity was virtually denied us. The debate took place in the setting of a dying Parliament; the Bill was rushed through this House—Second Reading, 15th July; Committee and Report stage, 18th July, three days later; Third Reading 25th July, and Royal Assent 31st July. We were told that, if the Bill were to be amended, no further parliamentary time could be devoted to it and therefore it would be killed. A number of us, including, I remember, the noble Lord, Lord Foot, protested against this virtual denial of the power to amend the Bill, but it was to no avail. So the Bill, which in general terms was acceptable, became law but it contained in it what many of us regarded as a serious flaw and it is a consequence of that flaw which makes this debate relevant and necessary.
The point about which we objected was this. Clause 6 of the Bill (as it then was) amended Section 116 of the Town and Country Planning Act 1971. Under that section, which has now been replaced, provision for compensation to owners of property was similar whether the building was listed or not. In the case of an unlisted building, obviously no listed building consent was needed and the owner would automatically receive the development value of the site. In the case of a listed building the valuer was directed to assume that listed building consent would be

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forthcoming for demolition and so the owner would receive the development value. Section 116 was thus intended to ensure that the owner of a listed building would receive the same treatment as the owner of an unlisted building—a position which most of us would regard as being nothing more than just.
The Town and Country Amenities Act altered that position. It laid down that in deciding compensation no regard was to be paid to any value which could be realised by demolishing the building. The compensation would be based solely on the value of the land for its existing use. So the situation was created in law that there could be two listed buildings side by side on sites of equal size; one might be a residence and therefore of considerable development value and the other, say a church, of no architectural merit, redundant because people had moved away or it had become redundant through pastoral reorganisation, and because it had no existing use value it attracted no compensation and was therefore virtually valueless.
The noble Earl, Lord Kinnoull, and I pointed out these dangers in the debates in 1974. We were given a great deal of sympathy by the noble Baroness, Lady Young, and by the late Lord Garnsworthy and he undertook, at the suggestion of the noble Earl, Lord Kinnoull, to arrange a meeting of all those involved in order to see whether our fears were well-founded or groundless. Unhappily that meeting never took place owing to the regrettable death of Lord Garnsworthy and to the overshadowing of the issues by the proposals for community land legislation. The fact of this debate today is evidence that our fears were justified.
A relevant illustration is the one which the noble Earl has already mentioned, of Stockwell Congregational Church in Colchester. As the noble Lord has reminded us, over a period of years efforts have been made to find suitable and permitted use for this building. After a public inquiry both the Inspector and the Secretary of State agreed that it had become incapable of reasonable beneficial use to its owners. The site is probably worth £20,000; they were offered £1. On 18th February 1977 the district valuer wrote to the owners, as no doubt he was in duty bound to do, in these words:
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"In this case, however, the Statute provides for certain valuation assumptions to be made and these in effect postulate a hypothetical world for valuation purposes where there is no place for the prevailing use basis of valuation".
Earlier he had written:
"If the property was incapable of reasonable beneficial use in 1974 when the purchase notice was confirmed, it must be still less capable of beneficial use now in 1936 after damage and deterioration. The value of the Church's interest therefore is nominal".
Thus, as a result of the Town and Country Amenities Act 1974 this Christian communion, owning a listed redundant church standing on a site which, if it could be cleared and sold free of commitments, would have been worth in the realm of £20,000, is offered the derisory figure of £1. In the debates in 1974, we warned that this could happen, and now we know that our misgivings were justified.
Many ask why it has taken five years for only one hard case to turn up. The answer lies in the slowness of the procedures. The church has first to be declared redundant, and in regard to the Church of England that in itself is a very long process. Then every possible effort has to be made to find an alternative use for which planning permission would be forthcoming. This having failed, the church authorities must then apply for listed building consent to demolish. When this has been refused they must serve a purchase notice on the local authority, which must be upheld after a public inquiry, and then, and only then, can discussions about value begin. In fact, in the case of the Stockwell church, the procedure has been going on for 13 years. Why has there been only one case since 1954? The answer is that this is only the tip of an iceberg. Procedures are long and complicated, and it is very probable that they will arise in increasing numbers in the future.
In any case, apart from actual instances, I would suggest to your Lordships that in this the principle is wrong. As things are at the moment, it is the community which decides that a particular building must be preserved. It is the owner who has to bear the whole financial sacrifice that that decision imposes, and this is clearly unjust and indefensible. What can be done? I suggest that the procedure for dealing with works of art shows us a way forward. Under a recommendation of the Waverley Committee on the export of

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works of art it is provided that an owner wanting to dispose of a work of art which may go overseas must be assured of a fair price if he is prevented from selling to an overseas buyer. This is not necessarily the international price, but it must be a price that is fair to both parties; that is, owner and taxpayer. So it is laid down that any system of price fixing that is adopted must be relied upon to work fairly in both ways and be such as to satisfy all concerned that justice is being done.
I suggest that a similar arrangement should apply in the case of listed buildings which have become incapable of reasonably beneficial use to the owners, but which it is decided must be preserved in the interests of the community. If, after a public inquiry, it is established that the listed building has become incapable of reasonably beneficial use to the owner, a fair price should be agreed with him, and permission to demolish withheld while that sum is being raised. If, after a suitable interval, the price cannot he raised, then permission to demolish should be granted, and the owner be free to realise the price he would have received if the building had not been listed.
This is a matter of deep concern to a number of people, indeed to any owner of a listed building. But it is of particular concern to the Churches, who are responsible for over 12,000 listed buildings. They are particularly vulnerable because, unlike houses, offices or commercial premises, the existing use value of a church is very low, and yet a great deal of the assets of the Church have gone into the building of it, and often the major assets of a community are wrapped up in church buildings and the sites on which they stand. Often it is necessary for them to move from the centre of their activities to another area. To do so they must liquidate their resources in one place in order to provide churches, church halls, social centres, parsonages in another place. If they have a listed building in one place the value of which they cannot realise, they may well be prevented from opening activities in another place where it is needed.
The provisions in the Land Compensation Act 1961, which purport to deal with this situation, do not really meet the
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problems of reinstatement, since often the circumstances which must be fulfilled do not fit exactly into the requirements of the Act. So it is that the Churches feel themselves to be in real danger. They think that the provisions of the Town and Country Amenities Act impose a serious injustice upon them. The Colchester case shows the red light, and they look to Her Majesty's Government for a remedy.
8.17 p.m.
The PARLIAMENTARY UNDER-SECRETARY of STATE, DEPARTMENT of the ENVIRONMENT (Baroness Stedman): My Lords, may I also add my thanks to those of other noble Lords who have spoken, to the noble Earl, Lord Kinnoull, for the very clear and fair way in which he stated his case, and for giving us an opportunity to air this subject. The other speakers who have taken part in this very short question and answer session tonight have all referred back to the 1974 Bill and their memories of it. I regret that I am not able to do that; I was not even a Member of this House at that time, but I have read back on the reports of those debates.
My Lords, the normal statutory basis of compensation for the public acquisition of land, which includes buildings, is market value—that is, the amount which it may be expected to realise if it is sold on the open market by a willing seller, given the planning uses to which it may be put. The market value basis applies equally to listed buildings as to unlisted buildings, so that if a public authority acquires a listed building the owner can expect to receive what he would realise if he sold it on the open market. To the extent that a new planning permission increases the development value of the site above the value in its existing use, part of that value may be recovered for the benefit of the public as a whole through development land tax; in effect, the public authority acquires at market value net of any development land tax.
In the case of certain buildings used for a purpose for which there is normally no demand in the market—and a church is, of course, a classic example of this—compensation may, if the use is to be continued elsewhere, as the noble Earl has said, be paid on the basis of the cost

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of equivalent reinstatement as set out in Rule 5 of Section 5 of the Land Compensation Act 1961. This is particularly advantageous for church authorities, and frequently applies where their buildings are taken in the course of public sector development or redevelopment.
The right reverend Prelate has said that prior to the Town and Country Amenities Act 1974 there was an anomaly in these compensation arrangements. If a local planning authority wished compulsorily to acquire a listed building in order to ensure its preservation, the compensation had to be assessed on the assumption that consent to demolish the building would be granted. This applied even where it was quite clear that such a consent would not be granted. Where there was an element of development value in the site, the authority were thus required to pay an inflated price beyond that which the owner could expect to get by selling in the market. Owners of listed buildings at that point of time were to this extent in a specially privileged position. The view was held at the time that there was no good reason why the owner of a listed building should get better terms on compulsory purchase than, for example, an owner of an unlisted building who could not realise what might be regarded as the full commercial potential of the site because he would never get a planning permission to do so. In both cases the owners have to accept limitations on their rights for the benefit of the community as a whole. This is the concept which broadly applies across the whole field of planning control, and this was the essence of a number of the changes which were brought in in 1974.
The noble Earl, Lord Kinnoull, has explained that Section 6 of the 1974 Act dealt with the particular compensation anomaly. It removed the automatic assumption of a demolition consent and allowed a listed building to be valued on a more realistic basis which took account of the real prospect of obtaining such consent. The effect was that those owners who previously might have obtained more than market value ceased to do so. The local planning authority would no longer be deterred from acquiring a listed building in order to preserve it by the prospect of having to pay what might have been an unreasonable amount in compensation.
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The Department's Circular 23/77 gives further guidance on the interpretation of this clause in Sections 24, 29 and 30. As I read it, during the debate in Committee in 1974 the noble Earl, Lord Kinnoull, expressed certain fears about the position of listed churches and similar buildings, particularly redundant churches. Though it was pointed out at the time that the number of such churches compulsorily acquired for preservation would be very few, and the number where there were no possible new uses within the existing or a suitably adapted fabric fewer still, nevertheless assurances were given that this concern would be brought to the attention of local authorities.
The current advice on this is contained in that same departmental Circular 23/77: local authorities are encouraged to consider relaxing control over land use allocation, density, plot ratio, daylighting and other controls where this would enable a particular building or group of buildings to be given a new lease of life. I know that there are some people who object to this piece of advice because they sincerely believe that once a building has been used for worship, it should not be used for a secular purpose. Obviously, if a church can continue to be used for worship and kept in good repair, that is the best solution, but when this can no longer happen and the building is of architectural interest or makes a contribution to the townscape, I think a suitable new use that enables it to be retained and repaired, should be welcomed.
We have heard reference to the consultation document recently circulated by the Churches Main Committee. As we have tonight, this paper drew attention to a difficult case concerning a redundant listed church in Colchester. The noble Earl, Lord Kinnoull, asked whether the Redundant Churches Fund, which was set up under the Pastoral Measure 1968 and the Redundant Churches and other Religious Buildings Act 1969, could be used in a case such as this. The answer is—unfortunately not in this particular case since Stockwell Church is a Congregational church and the Fund covers only Church of England churches.
The noble Earl also pointed to the change of mind on the part of the local authority about what was practicable within the existing shell. Although past attempts to find an acceptable use for the building had

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failed, a local firm submitted a planning application for alterations and a change of use to offices, which the council considered were satisfactory. A planning permission, which carries with it listed building consent for the alterations, has now been granted. I would add that the departmental circular I have mentioned encourages authorities to be as flexible as possible in these kinds of case and if in the end this results in some worthwhile use being found for a potentially redundant building, that seems to be all to the good.
The right reverend Prelate also referred to the Main Committee paper, and quite rightly so because he is the very respected chairman of that body. It proposes some special basis of payment for listed buildings broadly analogous to the arrangements by which the export of works of art which owners have sold abroad can be delayed while efforts are made to raise funds nationally. I do not propose to deal with that particular proposal at any length today because I do not regard listed buildings and works of art as analogous in this context. The proposal itself is certainly ingenious, but is really no more than a device for providing additional central Government support to churches and other charities in dealing with their listed buildings. This may not be undesirable or a wrong thing to do, but it is a somewhat separate issue from questioning the normal basis of compensation for public acquisition.
I should perhaps add that during the passage of what became Section 6 of the 1974 Act there was a certain amount of confusion about the extent to which the provision would affect the compensation payable for churches and similar buildings. The view then was that there should be little practical effect in the vast bulk of such cases. If a listed building were to be acquired and cleared by a public authority either they would pay compensation reflecting the market value assumption provided for in the Compensation Code as regards that impending demolition or, where the church was in use and the use was to be reinstated, the compensation would, as I have explained, reflect the costs of the equivalent reinstatement of the church. Even where the building was likely to be preserved, it remained open to the owners to test whether demolition
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consent would be forthcoming or what other uses might be acceptable, and the valuer would be bound in assessing compensation to take into account any prospects of a future consent being obtained. The provisions in the 1974 Act were also carefully worded to preserve the value of the owner's existing use rights under Schedule 8 of the Town and Country Planning Act 1971. I have explained this again tonight in order to avoid any doubt, because I am not aware of any evidence obtained since to suggest that the confidence felt then about the limited scope of the effect on Church authorities was misplaced.
We are all aware of the burden which the Church authorities bear in maintaining buildings which are so often a very important part of our local environment. But, of course, they are not alone in this. To help, grants are payable. Since August 1977, grants have been available under Section 4 of the Historic Buildings and Ancient Monuments Act 1953 towards the cost of repairs to buildings in use for public worship which are of outstanding architectural interest. For the two years 1977–78 and 1978–79 a total of £l·1 million was set aside for the purpose. When a building is no longer in ecclesiastical use, a grant may still be made if the building is of outstanding interest in its own right, if it forms part of an outstanding group or if it is included in an outstanding conservation area and the work would contribute to the enhancement or preservation of the character or appearance of the area.
Noble Lords will also recall that we provided certain significant exemptions from Development Land Tax, for the land held by these bodies on 12th September 1974—what was referred to as "White Paper Day". In addition, local authorities now have a duty under Schedule 6, paragraph 1 (v) of the Community Land Act 1975 to have regard to the needs and obligations of charities in their areas. We believe that many authorities already follow the convention of providing sites for churches at rates well below the market value. I think that this goes an appreciable way towards allaying some of the general fears expressed by the Churches Main Committee in their paper.
The noble Earl, Lord Kinnoull, also spoke in detail about the concern as

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regards the United Reform Church at Colchester. That has been brought to the attention of my right honourable friend the Secretary of State as causing particular difficulties. There may now be one further case emerging. It has not reached us yet, but we hear that there may be one other on the way and the right reverend Prelate may be right in saying that this is only the tip of the iceberg.
In the Colchester case, following an inquiry, the local planning authority is obliged to acquire the listed building under a purchase notice served by the Church authorities. As I have said, I gather now that the local authority is in negotiation for the resale of the building, following the granting of planning permission for office use and listed building consent for internal alterations. Negotiations as to the amount of compensation to be paid to the Church authority are still proceeding, and while I am not in a position to say how these particular factors have affected or are affecting those discussions, the valuer will no doubt take them into account. If the Church authorities are dissatisfied as to the amount of compensation, they will still have the right to refer the matter to the Lands Tribunal for determination.
It would clearly give rise to all sorts of difficulties and to other claims for special treatment if churches and charities were to be exempted from the normal market value compensation provisions which were introduced in 1974. I assure noble Lords that the Government are aware of the problems generally which these bodies face and the Department is in touch with the officers of the Churches Main Committee about their consultation document. Whereas, for the reasons I have explained, I cannot give an undertaking that the Government will review the compensation provisions, none the less they will continue to look closely at any practical difficulties which arise from their application. Certainly while I am in post I hope that I shall continue to be informed of these problems as they arise, so that we can see whether it will be a much larger problem than it looks at present, and whether we are really dealing with the tip of an iceberg or just the occasional case.
The noble Earl, Lord Gowrie, referred to the question of tax. In appropriate cases, of course, applications can be
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made for exemption from capital transfer tax, hut these would need to relate to buildings of outstanding architectural or historic interest. We have adopted a sympathetic approach to charities on taxation. For example, we gave them exemption from the development land tax for land which they owned on White Paper day. It may not be as much as many people would want us to do, but I think we have shown that we are not completely unsympathetic. The noble Earl also referred to the problems for owners which could arise when buildings are listed without prior consultation. There is scope for improvement here; I admit that. I shall certainly undertake to look at a suitable opportunity at the arrangements for prior notification of listing and publicity.
The noble Earl, Lord Kinnoull, asked whether some general advice might not be issued on what constitutes a reasonable value for redundant churches. Valuations are, of course, assessed in the context of the Compensation Code on the basis of market evidence. Inevitably, that means getting down to the facts of particular cases. We believe that there is no easy way by which any general approach or criteria could be formulated. However, if the noble Earl is aware of any specific points of difficulty, if he would like to write to me further on them, we shall certainly look at them and see whether we are in a position to offer any general clarification of our views. I am grateful to the noble Earl for having raised this matter and for having given me the opportunity of putting forward the Department's view.