Lords Sitting of 8 November 1979

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Bradford):
The LORD CHANCELLOR on the Woolsack.
The Lord Poole—Took the Oath.

NIGERIA: OIL NATIONALISATION COMPENSATION
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 whether the Government of Nigeria has yet paid compensation to the British interests concerned for the oil properties nationalised without notice in August: and whether the total amount due has now been agreed.
Lord TREFGARNE: My Lords, BP, the only company involved, are in touch with the Nigerian authorities, but detailed discussions between them in respect of compensation for BP's assets which were nationalised by the Federal Military Government have yet to take place; and no compensation has so far been paid.
Lord BOYD-CARPENTER: My Lords, I thank my noble friend for that reply. and declare what I am sorry to say is, unhappily, a minute interest in the company concerned. In view of the fact that possession of the property has passed, may I ask him why discussions on compensation are not even started after this interval of time?
Lord TREFGARNE: My Lords, the principal reason has been a change of Government in Nigeria.

SPECTACLE FRAME PRICES
3.3 p.m.
Lord ORR-EWING: 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 further measures they plan to increase price competition in the manufacturing and marketing of spectacle frames.
Lord CULLEN of ASHBOURNE: My Lords, no measures are planned to increase price competition among manufacturers. On marketing, the Price Commission found that the General Optical Council's rules on publicity limited the information available to the consumer and created a situation in which competition could not be promoted. My right honourable friends are considering whether any further measures may be necessary.
Lord ORR-EWING: My Lords, has my noble friend seen the report in the Optician dated 21st September that the General Optical Council's disciplinary committee has found one of its members guilty of displaying the price of spectacle frames in his window, and that, as a result of agreeing to remove this notice he has not been struck off the register? Would not my noble friend think that this is a case where, in order to encourage price competition in an area where spectacle frames are now costing up to £30 and even more, a measure of this sort should not be permitted, and should be investigated by the Office of Fair Trading with some sense of urgency?
Lord CULLEN of ASHBOURNE: My Lords, I fully understand my noble friend's anxiety on this subject. Some time ago the Price Commission investigated Dollond and Aitchison. The Commission made no recommendations about the company's prices, charges or margins, but included in the report to the previous Secretary of State a number of non-statutory observations, including one dealing with price display. The General Optical Council, however, declined to reconsider its present restrictions on publicity. I understand that the Director General of Fair Trading has had certain of the professional and commercial aspects of opticians' activities under review but has not completed his consideration of this question.
Lord JACQUES: My Lords, would the Government consider making it a condition

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of the NHS contract with opticians that there should be a display of frames and that they should be properly priced?
Lord CULLEN of ASHBOURNE: My Lords, I know that this is a view which is strongly held by many people, and this is one of the matters which my right honourable friend is considering at this moment. I fully appreciate the point of the noble Lord's question.
Lord WELLS-PESTELL: My Lords, may I ask the noble Lord whether he would ask his right honourable friend to have a look at the present range of frames, which many of us feel could be considerably improved at really no extra cost?
Lord CULLEN of ASHBOURNE: My Lords, is the noble Lord referring to NHS frames? I think there is work going on on this matter at the moment, and there is consultation between officials and industry with a view to increasing the range. Unfortunately it will mean quite substantial cost, and it is unlikely that any action will be taken just at the moment.
Baroness HORNSBY-SMITH: My Lords, is the noble Lord aware that hundreds of people are taking their prescriptions abroad when they go on holiday because the prices of frames are so much cheaper abroad? Indeed, on a holiday myself on the tiny island of Gozo, the one and only optician reported that he had 500 pairs previously ordered. The lenses were ordered from England and came from there, but the frames were one third and one half of the price of comparable frames here.
Lord CULLEN of ASHBOURNE: My Lords, I am grateful to my noble friend for that informative statement.
Lord JACQUES: My Lords, would the noble Lord bear in mind that since this matter has been going on for some time it has now become a matter of urgency that some action should be taken?
Lord CULLEN of ASHBOURNE: My Lords, I fully appreciate the noble Lord's point.
Lord ORR-EWING: My Lords, would my noble friend bear in mind in making his representations that there has been some support from all parts of the House on this matter? There is really no purpose in doing away with resale price maintenance when a self-appointed body can make it illegal to display the prices in the window. This does not make sense and it does not protect the consumer, and I hope some urgent action will be taken.
Lord CULLEN of ASHBOURNE: My Lords, the views that my noble friend has expressed are, I know, widely shared, and in general the Government favour the encouragement of competition in preference to control, but they have not yet decided whether specific action can yet be taken.

INSULATION GRANTS: LOFT ACCESSIBILITY
3.8 p.m.
Lord AIREDALE: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether, since a number of the 5 million dwellings without loft insulation have no practical means of access to a loft, they will authorise grants up to the same £50 maximum for other approved means of insulation of such dwellings
Lord MOWBRAY and STOURTON: No, my Lords, the most cost-effective use of our limited resources is to secure the insulation of lofts and hot water tanks, wherever this is practicable.
Lord AIREDALE: My Lords, I am obliged to the noble Lord, but is not this rather cold comfort for the people who live in these houses? If a householder is prepared to pay very much more out of his own resources towards, for instance, double glazing in the living room, provided he can have a £50 grant to start him off, is that not £50 very well spent?
Lord MOWBRAY and STOURTON: My Lords, I take the noble Lord's point and it is a point I shall bring to my right honourable friend's attention. Basically,

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as the noble Lord and the House are aware, heat is lost through the ceiling, and I quite agree that there is quite a large element of draughts. But it is the cost-effectiveness which is the important point. There are some 2 million houses, such as the noble Lord described, without loft accessibility. There are still 3 million which have accessibility for lofts which have not yet been insulated.
Lord STRABOLGI: My Lords, are the Government aware that very often when a householder spends a lot of money on putting in insulation in order to conserve energy, the rating authorities then come along and increase the rateable value? May I ask the noble Lord whether he will try to do something about this? In the Department of Energy there was great concern, but we were not able to do anything with his department. Can he try to have more success than I had?
Lord MOWBRAY and STOURTON: My Lords, I think the noble Lord in his last sentence answered the question. I shall certainly advise my right honourable friends and they will note what he said, but I expect the same answer will come back.
Lord AVEBURY: My Lords, even with the incentive of the £50 grant, is it not taking an inordinately long time, as shown by the figure given by the Minister—of 3 million houses remaining uninsulated—for this work to be carried out? Would the Minister consider making it mandatory on local authorities to install roof insulation and giving them the power to recover the capital expenditure in the form of a small increase in rents which would allow those capital charges to be met?
Lord MOWBRAY and STOURTON: My Lords, it was only a week ago today that the Government started a new scheme allowing people in public authority housing to have this right to insulate their lofts. As from that date, a week ago today, we have started a large advertising campaign, especially in areas in the Midlands where previously the take-up of the grant was not as great as we would have wished, and we are strongly advising all local authorities to give every access possible. Furthermore, for older and poorer people the new rules will allow people to get
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the £50 grant without having to show a paid receipt. I think this will be a help in the take-up.
Lord AIREDALE: My Lords, if the argument being relied on is that not all the grants available are being taken up for loft insulation, may I ask the noble Lord if this is not an argument in favour of widening the scheme slightly so as to enable other people to have other forms of approved insulation grant-aided?
Lord MOWBRAY and STOURTON: My Lords, I am not sure whether the noble Lord is not back on his original Question. He is pushing at an open door if he wants to know what our wishes are; we would wish everyone to live in as perfect a house as possible, but what we are trying to do with our limited resources is to make sure that they get the best use possible of those limited resources.
Lord GLENAMARA: My Lords, may I ask the noble Lord to say whether the new rules change a very silly part of the old rules whereby a householder who had done a very small part of the insulation himself was ineligible for grant? Surely it was a ridiculous state of affairs that people who helped themselves could get no grant?
Lord MOWBRAY and STOURTON: My Lords, it has always been said that individual cases do not necessarily make good law. One feels sad at these cases, but the rules have always been there and they must apply before one can get something.

ARAB BOYCOTT OF ISRAEL
3.13 p.m.
Lord JANNER: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what steps they have taken to combat the Arab boycott of Israel.
Lord TREFGARNE: My Lords, Her Majesty's Government have consistently and clearly stated their opposition to the boycott and have expressed the wish that

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firms should take their attitude into account when deciding whether or how far to comply with boycott requirements. Both our posts overseas and the Department of Trade are willing to give all the help and advice they can to exporters who encounter problems. Your Lordships may have seen my Written Answer of 5th November to a Question tabled by the noble Lord, Lord Mishcon, which related to the authentication of certificates of negative origin.
Lord JANNER: My Lords, while thanking the noble Lord for what he said, may I ask if he would not agree that we are really succumbing to blackmail—which I call "blackmail"—against a people, the Israeli people, with whom a favourable balance of trade has continued for many years? Are we not treating that customer, an old customer, shamefully? Will the noble Lord please study what the Dutch Government have done in regard to these certificates? Will he be good enough to explain to those who approach him with a view to succumbing to that form of "blackmoil" that the United States have passed anti-boycott laws, yet trade with the Arab countries concerned has increased vastly in spite of it? Why cannot we do the same?
Lord TREFGARNE: I cannot answer for the United States, my Lords. We have to judge this matter from our own British interests and we judge our interests presently anyway, that we should continue with the procedures that we have been following for the last year or so, with the minor change I announced the other day. As for the Dutch position to which the noble Lord referred, it is true that a number of resolutions have passed through the Dutch Parliament recently, but these have not yet been brought into law by the Dutch Government.
Lord BYERS: My Lords, will the Minister accept that in many quarters his Written Answer is regarded as purely cosmetic? When will the Government take the decision to end the discriminatory operation of validating these negative certificates of origin?
Lord TREFGARNE: My Lords, we will do that when we judge it in our interest to do so.
Lord GORONWY-ROBERTS: My Lords, would the Government confirm and agree that recent indications in certain Arab quarters of a desire to help to induce a more rational attitude in Iran towards the West gives some hope that the Government, in concert with others, possibly in the European Community, might now approach the Arab community with a request that they should revise their policy of boycott against Israel?
Lord TREFGARNE: My Lords, we would certainly be ready to discuss this question in the European forum should it be raised, but we know of no desire that it should be.
Lord GORONWY-ROBERTS: My Lords, does that mean that the United Kingdom representation in Europe would not raise it themselves but wait for somebody else to raise it? Surely this is a very worthwhile initiative that our own Government should take in Brussels?
Lord TREFGARNE: We have no plans to raise it at present, my Lords.
Lord BYERS: My Lords, I wonder whether the noble Lord, Lord Goronwy-Roberts, remembers telling the House that the British Government—that is, the last Government—would never want to be seen ahead of the pack? If that is so, is it not time this Government changed that policy and got ahead of the pack in the European Community?
Lord TREFGARNE: My Lords, I can go no further than I did before when I said that we will do that only when we judge it to be in our interests.
Lord REDCLIFFE-MAUD: My Lords, is the Minister aware that in the Select Committee, which was drawn from all parts of the House and of which Lord Caccia was a member, there was unanimity in rejecting the evidence of the Foreign Office, given that the authentication was merely of the signature and did not imply any approval of the boycott document? Is he aware that we felt very strongly in that committee that the Government should get out of the boycott process in which they are now involved and will continue to be involved until they cease this authentication process?
Lord TREFGARNE: My Lords, the authentication process, as the noble Lord and the members of that committee will know, is only the authentication of the signature to the document; it has no relation to the content or accuracy of the document itself. We have recently taken steps, as I announecd the other day, to make that doubly clear to those who use this service.
Lord PAGET of NORTHAMPTON: My Lords, as in the case earlier in regard to Nigeria, are we not here concerned with what is a British interest because open trade with. Israel is as much a British interest as it is an Israeli interest? Is this not just another instance of the weak-kneed attitude of the Foreign Office in defending the interests of this country whenever they are challenged by any crackpot regimes throughout the world?
Lord TREFGARNE: Certainly not, my Lords. British interest in terms of trade with the Arab countries is just as important as trade with Israel.
Lord JANNER: My Lords, may I put a last question to the noble Lord? Will he be good enough to study the position with regard to the American situation? Is he aware that none of the fears that were expressed when the anti-boycott legislation was under consideration have been justified and that, instead, trade has increased very considerably? Is he further aware that at the present time most of the Arab world is not included in the boycott and that we have nothing to fear from blackmail any more?
Lord TREFGARNE: My Lords, as I said earlier, I cannot answer for the Government of the United States. We have to judge our interests as we find them, and the American Government must do likewise.
Lord WELLS-PESTELL: My Lords, may I ask the noble Lord whether he will clarify one point? Is he in fact saying that the Government will support the Arab boycott of Israel if it is in the financial interest of this country to do so?
Lord TREFGARNE: No, my Lords. The Government oppose all boycotts which lack international sanction and authority. We deplore the limitations
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which the Arab boycott imposes on the commercial freedom of our firms and the extraneous political considerations it introduces into the conduct of our economic and commercial relations with Israel and the Arab States.
Lord JACQUES: My Lords, is the Minister aware that eight months ago from the place where he is now sitting I gave exactly the same answers as he has given? There is at least one thing on which we are agreed.
Lord TREFGARNE: My Lords, I am interested to hear that, and it confirms my view that our predecessors were just as anxious as we are to maintain British interests.

FURSKINS BILL [H.L.]
3.21 p.m.
Lord PAGET of NORTHAMPTON: My Lords, I beg to introduce a Bill to prohibit the export of skins of certain animals. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read 1a.—(Lord Paget of Northampton.)
On Question, Bill read 1a; and to be printed.

BETTING, GAMING AND LOTTERIES (AMENDMENT) BILL [H.L.]
Lord NEWALL: My Lords, I beg to introduce a Bill to amend the provisions of the Betting, Gaming and Lotteries Acts 1963 to 1971 in relation to the number of races on which betting may take place on dog racecourses on any day and in relation to the number of special betting days. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read 1a—(Lord Newall.)
On Question, Bill read 1a; and to be printed.

BRITISH RAILWAYS (No. 2) BILL
Read 2a
SCOTTISH EQUITABLE LIFE ASSURANCE SOCIETY BILL
Read 3a, with the amendments and passed, and returned to the Commons.
SALE OF GOODS BILL [H.L.]
Read, 3a, and passed, and sent to the Commons.
JUSTICES OF THE PEACE BILL [H.L.]
Report received.

GAMING (AMENDMENT) BILL [H.L.]
3.25 p.m.
Lord BIRKETT: My Lords, I beg to move that this Bill be now read a third time.
Moved, That the Bill be now read 3a.—(Lord Birkett.)
Lord WIGG: My Lords, this Bill touches upon a very narrow point inasmuch as it implements recommendation No. 219 of the Royal Commission on Gambling, and what it does is to remove from Parliament powers to decide the amount of money that could be won at the game of linked bingo, and in future, if the Bill receives the Royal Assent, that power would be vested in the Home Secretary, who can make an order by regulation. I supported the Bill on Second Reading, and I do not dissent from it now; but of course it has an added importance in view of the debate in another place on the 29th of last month, from which it seems that the report of the Royal Commission on Gambling is to go the way of all the other reports of Royal Commissions since the end of the war. In other words, it is going to be swept under the carpet. The little bits that peep out are those that are inescapable—they just cannot be hidden. This one is of some importance because linked bingo is tied up with a game which both the Royal Commission and the Home Secretary regard as a neighbourly occupation; so it is, in just the same way as racing taking place at Cartmel or Plumpton
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is also racing. But racing at those two small and very agreeable courses is not the same thing as racing at Epsom, York, or Ascot. It is in some way rather different, and it has to be treated on a different basis.
What has happened is this. The figure of £1,000 mentioned in the gaming Act of 1968 has lost all contact with reality. It is perfectly true that the majority of those who play bingo—housey! housey! in my days in the Army—do it on a neighbourly basis. But it is kept alive, in just the same way as Ascot, Epsom and York races are kept alive, because it is a great event; and those who go to smaller meetings pay some attention. Therefore linked bingo—the possibility of going along one night in the week and winning an astronomical sum—is an inducement or encouragement to people to maintain an interest in what I should regard as a somewhat boring pursuit if pursued every night of the week for ever and ever. But the amount that can be won must have a marked effect upon the interest that is maintained in that game. Both the present Administration and the previous Administration paid lip service to it in as much as there was an interdepartmental report on gambling—a report of the Home Office, may I say. They shied away from the recommendations because there was a recommendation to put a limit on football pools. Once you put a limit on football pools, the interest in that subject would quickly wane, with a marked loss to the Revenue. So that one, too, was shelved.
The Minister, the noble Lord, Lord Belstead replied—and I do not in any way condemn this; it is a difficult subject; he was new in office, and I was cautious—and he accepted in toto the recommendation of the Royal Commission. That is to say, they recommended that in future the matter should be dealt with by regulation, being taken away from the Act. But they went a little further. What they said was that the new figure should take account only of the future rate of inflation, and should not take into account past inflation. Again, I do not dissent from that. I was heartened by the fact that the noble Lord, Lord Belstead, in his reply said that the Gaming Board would be consulted. May I say that the reason for my joy on that was that I have every confidence in the Gaming Board and no

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confidence at all in the Home Office advisers. So the fact that the Gaming Board was going to be consulted cheered me up no end. But when the Secretary of State replied the other night he did not say the same thing. He said that he recommended the recommendation of the Royal Commission which of course, as I say, limits the increase to be given to the board of £1,000 for future inflation. But he went on to say that not all the inflationary tendencies would be taken into account. In other words, whereas Lord Belstead, when he was replying, said he stood foursquare on the recommendations of the Royal Commission, the Home Secretary used the word "all"—and the use of the word "all" means it must be part of it—and hinted that the new figure is going to be in excess. I tell your Lordships, Lord Belstead and the Home Office that what they have decided has created a sense of grievance in the associations concerned with the playing of bingo, because all the other activities which are similar in character have had an increase which has taken into full account the inflationary increases. I presume that in fact the £1,000 would be several thousand pounds if that factor was taken into account.
My Lords, what one wants to do is to try to find a way round this with the least possible friction. I would not ask Lord Belstead, when he replies today, to make a definitive statement; that would be quite unfair. What I would ask him to do is to go away, see what the Home Secretary said and what he himself said, talk the matter over with the Gaming Board and then see what needs to be done. In other words, I do not in any way detract from the conclusion that the Home Secretary should make up his mind in consultation with the Gaming Board, but I think it would be quite wrong here to just say "£1,000". May I say that the Royal Commission, when they were deciding, used the word "present". When does "present" mean? Does it mean when they came to that conclusion, before the Royal Commission's report was printed, or does it mean the 12th July last year, when the Royal Commission's report was published?
Anyway, I do not want to stress this point, because I do not want to detain your Lordships too long on this subject;
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but it has an importance because there is no subject which your Lordships consider in any Parliamentary Session which makes a greater impact on the lives of ordinary people than does this subject. Your Lordships may feel that that should not he so, and perhaps it should not. But there is an estimate given by the research unit of the Home Office itself which shows that 80 per cent. of the adult population of this country gambled during the course of the year, and the figure given by the Home Secretary in another place ran into many thousand million pounds. So what is done in this respect is of paramount importance. It is also of paramount importance, may l say, to the Revenue, for this reason. It is very hard that the Labour Party never shouts from the mountain tops about the things it achieves, but, in this field, when it came into office in 1964 there was a total revenue from gambling of £33 million, whereas now it is touching the £400 million mark, which is a very considerable sum of money indeed.
The Royal Commission's terms of reference required that they should pay attention to the need to help British sport as a whole, and they were asked subsequently to present an interim report, which they did. They came up with what was virtually a coconut. They said, "National lottery". On this particular point, the Home Secretary has said, "No decision on this". Of course he does not take a decision on it, because politically this is very awkward indeed. I say that because if you have a national lottery you are going to cut very heavily into the activities of the pools, and, of course, not only is that very important from the Revenue's point of view, it also has its repercussions through the ballot box. So, as with the interdepartmental report, it is severely left alone. But one of the things that astonishes me more than anything else is the way in which the Home Secretary brushes on one side not only what the Royal Commision has to say but what the Home Office's own research unit says in the course of a preface to a document, which your Lordships can obtain from the Vote Office, entitled Gambling—A review of the literature.It is interesting that this research unit was operating before the Royal Commission, yet the Royal Commission was never told of its existence; and only at a later date did they see the report in draft.

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What we find in this preface is the statement that information about this subject—which, as I say, touches the majority of adults in this country, produces a vast revenue and can be open to the greatest abuses—is very poor indeed. In the case of the Royal Commission, in Recommendation 4.5 they said:
"The conclusion is inescapable, both from the work of this Royal Commission and from that of the Home Office, that there is a serious shortage of reliable and accessible information about gambling in the United Kingdom".
They went on, in Recommendation 25.7, to say:
"We found an almost total absence of information about the financial state of the industry and its component parts".
In Recommendation I they said:
"The Government should establish a gambling research unit to monitor and study the incidence, sociology and psychology of gambling";
and Recommendation 2 of the Royal Commission was that the unit should be funded by the Home Office.
I do not complain that the Home Office turned that recommendation down. Although they have a responsibility to this House and to the country, the fact is that they turned it down. Well and good. I have no complaint that they turned down the setting up of a research unit into the sociology and psychology of gambling: but I do think it should be brought to your Lordships' attention, or to somebody's attention—perhaps a future Gibbon, when he comes to write The Decline and Fall of Great Britain—that, in relation to this subject, even the merest attempts to understand the facts of the situation are thrust on one side, and they are left, I would suggest, to fester, as they have festered in the past, to produce a very grave social evil.
This is not the only point. Again, I do not want to detain your Lordships too long, but this is the only opportunity one will have to deal with this matter because, judging by past experience, apart from (I must keep in order) a not very useful debate in another place, that will be the end of it; and, as far as I am concerned, I certainly do not want to take part in any debate in which no attempt is made to understand the basic facts.
My Lords, let me deal with one particular point, again of some importance.
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The Home Secretary, in the course of his speech, referred to what he regarded as a recommendation of the Royal Commission on what he described as "avoidance". He referred to avoidance on a massive scale of the impact of the levy; and reference is made to the Royal Commission's recommendation in this respect. There could not be a greater confusion, because the Home Secretary then goes on to say that he would be prepared to introduce a Government measure if he could be assured there would be no opposition; but in the absence of that, he would welcome and would give support to a Private Member's Bill to deal with this subject.
But the trouble which has arisen—and I want to invite your Lordships' attention, particularly the attention of members of the Labour Party, to how it has come about—has arisen from totally different circumstances. If the Home Secretary says, "I am in fact going to adhere first to Lord Birkett's Bill" and says what he understands is going to happen in another place, then, if we are going to get another Private Member's Bill, or even a Government measure, we ought to know how that has come about. It has come about because the Levy Board has run out of money, and it has run out of money because of this avoidance clause, which in fact has nothing to do with it at all. The avoidance, which was dealt with by the Royal Commission in some detail, arises where a group of companies can be restructured just before 1st April in such a way as to avoid what are regarded as their lawful liabilities.
The real difficulty arises because the Levy Board, with the approval of the Home Office, has loaned £2,700,000, free of interest, to the Duke of Richmond to rebuild Goodwood at a time when we are very hard up. Again, racing is conducted in such a way that a yearling can be sold for £650,000. An average of more than £30,000 could be obtained for each horse. Astronomical sums of money are to be made because of lax administration. The result is that advantage is taken of that and the money is not available simply because the Levy Board, in order to deal, itself and without consultation with the Home Office, with the difficulties thrown up by restructuring, chose to do so by making the levy payable

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not on the previous year's turnover, as has happened ever since the legislation was introduced, but on the current year's turnover. Therefore, as they can make only one assessment, they are without the means of collecting the money until the end of the year. So they spend in advance money that they have not got and run into difficulties. The Home Office, without regard at all to the consequences, propose to sponsor it, or to give it their blessing.
I am not saying that these matters should not be dealt with; but I am saying that, before dealing with them, we need to take into account the effect of the Government's lack of interest in the problems thrown up by the Royal Commission as a whole. Unless they do that, the most serious results are going to follow for British sport as a whole. One of the purposes of the Royal Commission—and they requested an interim report—was that British sport should benefit; but, as a result of local government cuts last week and of the fact that the Home Secretary has tended to ignore it or has indicated that there is no opportunity for legislation, British sport, as we know it, as it is carried on on the village green through voluntary organisations, is going virtually to come to an end. Some £50 million is going to be taken off it through local government cuts and any prospect of help from central Government is just not a starter. I am talking of all that range of sporting activities for which our nation in the past has been famous. It is said that there are 64 of them. The Home Secretary last week touched only on three; he touched on those three only very ineffectively. The result is going to be that the voluntary spirit, the voluntary efforts, are going to come to nothing.
I could weary your Lordships by giving more examples. I well understand that these are boring matters for those who do not want to listen. But so long a I am in this place I intend to take the opportunities to speak on them. It will be the only opportunity of expressing my views on the way this problem is going to be handled. So far as I am concerned, I do not want my opinions to be foisted upon anyone—even to the point of boring. But there is one difference between me and the
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Government. I do my homework before and not after. That is the claim I make and it is one that I can substantiate.
I have been right on previous occasions. I came along on my own, opposed the Private Member's Bill and said that it ought to be a Government measure. We have had the piddling 1976 Act. The only reward that I get for that and will get on this occasion is to be able to say "I told you so". I am telling your Lordships again now that British sport through voluntary efforts, be it racing, football, greyhound racing, is all going to suffer—and needlessly, not through lack of cash but through lack of interest; and because people will not do their homework or, when somebody else does it, they will not listen. They get bored. I am sorry that I bored your Lordships but I do not apologise.
3.47 p.m.
The PARLIAMENTARY UNDERSECRETARY of STATE, HOME OFFICE (Lord Belstead): My Lords, perhaps I may say a word from this Bench. The noble Lord did not bore me at all, but he has mystified me slightly. On Monday in this House I was asked a Question by the noble Lord and, as I understood it, he was seeking an assurance that gaming and the Gaming Board were in no way related to horse racing. Here we are, having enjoyed some 20 minutes of the noble Lord in which he has been at pains to show that on a Gaming Bill it is appropriate to talk about betting and the Levy Board. However, I leave that on one side.
The noble Lord made one specific point so far as this Bill is concerned. He suggested that my right honourable friend the Home Secretary in making a speech in another place on 29th October had contradicted words that I had ventured to put to your Lordships on the Second Reading of Lord Birkett's Bill. I should like to assure your Lordships and the noble Lord, Lord Wigg, that on 29th October my right honourable friend in no way intended to modify in any way what I said on the Second Reading of the Bill. The references to my right honourable friend's words are to be found (I think I am right) in cols. 853 and 854 of the House of Commons Official Report on 29th October.

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May I add only that I had not intended to intervene on this Bill because on Second Reading the Government made it plain that they supported Lord Birkett's Bill, that they would have liked themselves to have legislated on the subject. but that in this Session there was no legislative time for a major Bill on gaming. Therefore, we are grateful to the noble Lord, Lord Birkett for introducing the Bill which has its Third Reading today.
Lord BIRKETT: My Lords, I am immensely flattered that this tiny Bill should have supported such an authoritative and—dare I say?—wide-ranging speech from the noble Lord, Lord Wigg, and such a crisp and courteous reply from the noble Lord, Lord Belstead. For one wild moment I wondered whether my next task should be to withdraw my Motion for Papers, but I recalled myself and instead will humbly beg your Lordships to agree to the Motion that this Bill be now read a third time.
On Question, Bill read 3a, and passed, and sent to the Commons.

BILL OF RIGHTS BILL [H.L.]
3.49 p.m.
Lord WADE: My Lords, I beg to move that this Bill be now read a second time. In recent years there has been a groundswell of opinion in favour of some form of Bill of Rights. I think that there are a number of reasons. There is growing unease as to whether we enjoy adequate protection against encroachments on individual liberties. Then there is a belief that our Parliamentary system is not entirely satisfactory. For example, Governments may, and often do, come into power not representing a majority of the electors. They may nevertheless claim to have a mandate and introduce legislation to which perhaps the majority of the electors are opposed. There are no special safeguards, apart from public opinion, against measures affecting what some would regard as their basic liberties.
Turning to international obligations, it is true that the United Kingdom has signed and ratified the European Convention on Human Rights and Fundamental Freedoms. Yet to some this seems remote
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and the procedures are undoubtedly slow. Also there is one other relevant consideration: whereas on the whole I think Britain has a good record on human rights—I think we have reason to be thankful—nevertheless, there is damaging publicity which often follows when cases are taken to the Human Rights Court and Britain is in the dock. It may be unfair: certainly it is at times exasperating and harmful. If we look around the world, scarecely a week passes when we do not hear of some breach of human rights which we deplore. I think we are justified in joining in protests against these breaches when they occur. Nevertheless, critics of Britain do not miss an opportunity of using reports of cases at the Human Rights Court to discredit Britain and to minimise the effects of the protests that we may wish to make against what occurs in other parts of the world. That is the background.
This Bill, the object of which is to incorporate the provisions of the European Convention into our domestic law, will not solve all these problems. It is a step, but I think an important step. In view of the ground already covered, I do not think one should attempt to go over all the matters; we have had a number of debates on the subject and valuable information from the Select Committee, and the evidence taken by the Select Committee. Therefore, I will not attempt to start from the beginning of the story.
It is fair to add that when the convention was drawn up and signed it was not foreseen quite how many occasions there would be when complaints arose which resulted in a case being taken to the Human Rights Court. I do not think it was expected that there would be gaps—even if a few—in our law which had to be filed. I think it is now recognised that the number of complaints is considerable and that the queue is growing. I also think that it is fair to add, because there has been some misunderstanding on this, that rights already enjoyed would not be diminished by a Bill of this nature. They might be enlarged. The convention could not be interpreted as limiting the rights which we enjoy.
In introducing the Second Reading, may I say a few words about the history of this matter. I have introduced a Bill on these lines on three occasions. The first time

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I secured a Second Reading but time did not permit of its proceeding further. On the second occasion, we had a most valuable and interesting debate. The noble and learned Lord who is now the Lord Chancellor will remember this very well because it was then that he moved an amendment to the effect that the Second Reading should be granted on condition that the subject was taken to a Select Committee instead of proceeding on the Floor of the House. I fully agreed with that proposal. I thought that it was a good idea because it widened the whole range of examination and enabled us to take evidence, which we did. The noble Lord, Lord Allen of Abbeydale, as your Lordships know, was appointed chairman. I should like to pay my tribute to the conscientious chairmanship which the committee enjoyed during the fairly lengthy discussions of that Select Committee.
The conclusions were briefly two-fold: one was that if there was to be a Bill of Rights, it should be along the lines of the Bill that I put forward, with some amendment. Secondly, as to whether there should be a Bill of Rights at all, the Select Committee was divided. The majority was a narrow majority of one, but it was in favour of proceeding with the Bill. However, quite properly, the Committee reported to the House and there was a debate on this report of the Select Committee. That was on 27th November last year. The noble Lord, Lord Allen of Abbeydale, presented the report and I moved an amendment the effect of which was that the Bill should proceed with some appropriate amendment. The amendment which I moved was carried by 56 votes to 30.
After that, as your Lordships know, there was a General Election and a new Government came into office. I felt that some reasonable time must be allowed to lapse for the Government to consider their position. However, in July I introduced a new Bill and this is the Bill which is now before your Lordships. I am therefore in the unusual position of moving the Second Reading of this Bill for the third time. Whether this can he put down to fate or obstinacy it is a little difficult to say; perhaps it is a combination of the two. As to the time factor and the very full discussion by the Select Committee, I have no regrets. I think
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it was very useful that this lengthy examination should take place. The Bill itself is short. I think that there is merit in brevity. I think it is easier to add than to subtract but I recognise that some additional wording might be justified.
Looking at the Bill, may I make these few comments. As your Lordships will see from the Long Title, the object is to render the provisions of the European Convention enforceable in the courts of the United Kingdom. May I point out—and this is already well known to your Lordships—that we are bound by a treaty by the ratification of this convention but ratification of a treaty does not mean that an individual has a right of action in the courts here. That requires an Act of Parliament. That is why it is necessary to be discussing an Act of Parliament.
The first clause provides—and I am summarising—that the convention together with such protocols as shall have been ratified by the Government of the United Kingdom, shall be enforceable by action in the courts of the United Kingdom. In the Bill which was attached to the Select Committee report, which was the Bill before the Committee at that time, certain words were, in the context of that Bill, appropriate. They were:
"Without any reservations".
In the new context of this clause, as slightly altered, those words are not appropriate; at any rate, they might give rise to misunderstanding. At the Committee stage I suggest that the words
"without any reservations"
should be omitted and replaced with the words
"subject to any reservations thereto".
I apologise for entering into details of drafting, but I say this here and now in case anyone has misunderstood the wording of this Clause 1.
The second clause deals with the conflict between existing law and the convention and protocols that we ratified, and it provides that the convention and protocols, which we have already agreed to accept by treaty, shall be treated as prevailing if there is a conflict. But under the third clause, which deals primarily with legislation after the passing of this Act, the Bill reads as follows:

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"In case of conflict … any … enactment passed after the passing of this Act shall be deemed to be subject to the provisions of the said Convention and Protocols and shall be so construed unless such subsequent enactment provides otherwise or does not admit of any construction compatible with the provisions of this Act".
I will, if I may, come back to that in a few moments.
In the first clause there is one major difference between this Bill and the previous Bill. In the former Bill, the whole of the convention was set out in a schedule. The reason for this was primarily for the convenience of the House, so that anyone who wished could refer to wording of the convention. The question was discussed by the Select Committee as to whether the whole of the convention should be included, namely, all parts of the convention, including those aspects of it which dealt with procedure such as appeals to the Human Rights Court, although of course not parts not ratified or subject to reservations.
The Select Committee, after discussing this, were inclined to favour including the whole of the convention and protocols, with the exceptions I have mentioned. If that be so, then I think there is a case for presenting the Bill in this form without setting out the convention and protocols in full in a schedule. It certainly simplifies the Bill, but I am open to advice on the matter and also to the decision of the House.
To summarise, in any event the important part to which incorporation is intended to apply is that concerning "rights and freedoms" defined in Section 1 of Schedule 1 of the convention, together with Articles 1 to 3 of Protocol No. 1, subject to the reservation made to Article No. 2 of that first protocol, which relates to education. I am sorry if, without reference to all the articles and protocols this perhaps sounds a little puzzling. I think on reading it, it will appear clear.
I turn briefly now to derogation, which the Select Committee mentioned. Article 15 provides that—
"in time of war or other public emergency threatening the life of the nation, any high contracting party may take measures derogating from its obligations under the Convention".
The article goes on to explain what is implied by "derogation". If, as is
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proposed, Article 15 is to be treated as if it were enforceable as part of our law—in other words, incorporated—it does not seem necessary to refer to derogation specifically in the Bill.
I now come to the words "enforceable by action"—against whom? It is the high contracting parties who, by the convention, undertook to secure to everyone within their jurisdiction the rights and freedoms referred to: in our case that means the United Kingdom. A claim would therefore lie against the United Kingdom Government. As to the nature of the action. I doubt myself whether any special new remedy would be required. Occasions might arise where the interpretation of the law might rest upon the wording of the Convention. Cases might arise where some complainant might wish to bring forward a specific point, in which case I think he would probably be advised to take out the appropriate writ or ask for a declaration, or perhaps apply for an injunction. In Scotland that would be an interdict. I think these measures would suffice.
So far as a declaration is concerned, I do not think the advantage of this is always fully appreciated. I think it might prove to be very effective. If there were a breach of a provision of the European Convention and some high court declared that was so, I think any Government would hesitate to defy it. In the last resort, of course, if the Government did defy it there might be a case to take to the Human Rights Court. As to Clause 2, there are one or two minor points which can be left to the Committee stage, but the principle is important: namely, that in a case of existing law we must assume that the terms of the convention would prevail.
The main argument in the Committee and outside the House has been over Clause 3. The reason for the original wording which I drafted was to lessen the chance of inadvertent breaches of the articles of the convention in future legislation, but I have to admit that the original clause, as the Select committee pointed out, raised a question as to whether it amounted to an attempt by one Parliament to bind future Parliaments. The Select Committee felt that they were bound to keep within the existing constitution and therefore could not, even if they wished, introduce entrenched clauses.

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The new wording takes this into account. Under this Bill, Parliament is not asked to make provisions which future Parliaments could not revise. I think we must accept that so long as we keep to our existing constitution. On the other hand, the Bill assumes that Parliament would not wish to flout a convention which it has ratified as a treaty.
My Lords, I foresee some representations on the last few words of this Clause 3, which are as follows:
"or does not admit of any construction compatible with the provisions of this Act".
That is a subject which is very topical at the moment. I am thinking of certain recent cases which have been drawn to my attention on this subject of fulfilling treaties and interpretation. My attention has been drawn to the case of Macarthys Ltd. v Smith of 1979, on which the noble and learned Lord, Lord Denning, had some important comments to make and which has been reported. There is another case of Worrington v Lloyds Bank Ltd. of this year which, so far as I can ascertain, has not been reported. I certainly do not intend to embark on a discussion of these cases. I mention them because it is contended that the observations that were made in those cases support the practicability of Clause 3 of my Bill. However, so far as the last phrase is concerned, which reads
"… or does not admit of any construction compatible with the provisions of this Act",
I would not wish to fight or die in the last ditch in an attempt to retain those words. I have had no opportunity of discussing this point with others who support the Bill, and I can only give my personal opinion, but I myself would not press them if it were felt desirable to remove them. Again I think that it is appropriate for Committee.
It is never easy to outline a Bill, clause by clause, without boring the House and I have tried not to do so. But I would conclude with a few general observations. I accept that there are some political implications in observing the provisions of the convention. That flows from ratifying the convention, rather than from attempting to incorporate it. I could give a few examples of cases which have political implications, though I think it wiser to take hypothetical cases. There are two actual cases at the moment
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relating to the closed shop which are before the Commission, possibly with a view to going to the Human Rights Court, but I do not think it would be proper for me to discuss cases which are already before the Commission.
But as a hypothetical example, I can see that if there were—I am not saying that there is—a case of a closed shop with no clause at all for conscientious objections, and as a result some individual was unable to obtain employment, it might be difficult to reconcile that with Article 11. Or to take one other hypothetical case, if, perhaps somewhat unexpectedly, the present Government took a U-turn and decided to renationalise parts of industry without compensation, a question might arise as to whether—it could be a serious point—that could be reconciled with Article 1 of the first protocol. But I think that most cases would arise because some individual felt that he was suffering from some hardship or injustice, which was contrary to one or some of the articles of the European Convention, and he wanted the matter to be put right and wished to bring it in a British court. To help him do so is one of the objects of the Bill.
I can sum up by saying that the underlying objects of the Bill are twofold. One is to assist individuals in the manner that I have suggested, and the second is, at the same time, to strengthen the concept of adherence to internationally agreed principles relating to human rights and fundamental freedoms. My Lords, I beg to move.
Moved, That the Bill be now read 2a.— (Lord Wade.)
4.15 p.m.
Lord ELWYN-JONES: My Lords, I am sure that the House will wish me to congratulate the noble Lord, Lord Wade, first, on his devotion to human rights, which I think we all share, but, secondly, on his persistence in his campaign in respect of incorporating the Convention into our law. I have forgotten whether it was the Bellman in The Hunting of the Shark who said, "What I say three times is true". It may well be that the noble Lord has reached that state of mind by now. But, alas! such is the many-sidedness of truth, that it may well be that

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on this occasion, again, there will be differences of opinion; and looking at the list of speakers it seems very likely that that will be so.
Most of us whose names appear on the list of speakers have been around this course earlier, if that is an appropriate metaphor to use—no, my Lords, not in the presence of the noble Lord, Lord Wigg. I am quite safe and he is not here; regretfully, no doubt. But as I was saying when I interrupted myself, we have been around this course before, and I do not intend to take too much of your Lordships' time today. It may well be that, unfortunately, I shall not he able to be here till the end of the debate. If so, I apologise in advance.
On the occasion when previously I spoke from a different position in the House, I regret that it was in opposition to the views of the noble Lord, Lord Wade. It is the case that men of goodwill differ in their views on this difficult matter, as indeed the splendid report by the Select Committee, which was chaired by the noble Lord, Lord Allen of Abbeydale, so clearly indicated. I think that the argument is pretty evenly balanced, but I am still inclined to favour the view of the minority of five against six in the Select Committee's report, supporting the reasons which are set out in paragraph 33 of the report for rejecting what the noble Lord, Lord Wade, proposes. As I see it, what is really at issue between us is more a question of machinery than of objective; more a question of means than of ends.
But the fact of primary importance in considering the operation of the Convention is the basic fundamental decision of the Labour Government, which has been continued by subsequent Administrations, to allow our citizens the right to petition to the Commission of Human Rights and to the Court of Human Rights at Strasbourg. The existence of the convention, in itself, is of course a major step in international law and international relations, which was taken after the last war with the object of guarding Europe against any recrudescence of Nazism. It was a similar motivation which led to the earlier Universal Declaration of Human Rights in 1948.
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The great difference between the two declarations of principle is, of course, that the European Convention provided means of enforcement of the terms of the convention by giving the individual citizen, as well as State Governments themselves, the right of petition and the remedy that ought, in the normal course of events, to follow a decision of the Court, to which one would expect governments to give effect, either by administrative means, which is usually the method of dealing with it, or if necessary by legislation. But this development of the right of petition is of major importance in the history of human rights, because of the unique development that it created in international law by providing the individual citizen, in any country ratifying it, with the possibility of bringing a complaint against his own government in a foreign court, before an international body in international proceedings—a major change, a major development.
It was once said—I think these are the words of Professor Lauterpacht—that the individual citizen used to be the object of compassion; now he is the subject of rights. The British citizen is given by the convention and the act of giving a right of petition this new standing as an individual and this new strength to assert his rights. That exists now. Incorporation of the law would make no difference, I submit, to that, except that it would enable our courts to give effect to the principles of the convention. I shall say a word or two about that.
I had the great pleasure last week, on the invitation of the noble and learned Lord the Lord Chancellor, to represent our judiciary at Strasbourg in the celebrations of the 25th anniversary of the setting up of the Commission of Human Rights and the Court itself. One heard of the impressive record of case work that has evolved there. I think it is appropriate that I should pay tribute to the outstanding contribution of British lawyers. Of course it is very much a team and an international job, but the work of Sir Humphrey Waldock as president of the Court was outstanding. Additionally, a distinguished lawyer, James Fawcett, is the president of the Commission of Human Rights.
I was very interested to learn that Mr. Fawcett, the chairman of the Commission,

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himself sees grave difficulties in writing the convention into our law. He made an interesting contribution in a BBC broadcast discussion of the matter on 28th October, in which the noble and learned Lord and I each took part. By way of illustration of the difficulties which arise he mentioned some of the applications which have come to the Commission on the question whether the machinery of the Commission and the European Court is really appropriate to deal with some of the questions that arise, or whether or not it would be preferable that they should be dealt with domestically by way of parliamentary action—by legislation.
Mr. Fawcett cited compulsory sex education in schools—whether that was against one of the fundamental principles—the closed shop, abortion law. There was a reference to the Danish sex education case, where the question that the court was asked to deliberate upon was whether the State was interfering with parental rights when it imposed sex education in schools. Seven of the learned judges said yes, seven said no—again, no doubt, another illustration of the many sidedness of truth. The crucial question which he asked was whether these matters are really to be left to the courts to say what is right and what is wrong. In my view, the nature of those broad issues of public policy ought to be dealt with by legislative means.
As noble Lords well know, the convention is set out in terms of statements of general principles of public policy in very wide areas: the right to life, the right to privacy, freedom of schooling, freedom of education, freedom of association, freedom of speech, freedom of the Press, the question of forms of punishment—all major issues of public policy which, I venture to submit and certainly think, are issues appropriate to be dealt with by Parliament and not by the judiciary.
Of course it is the case that the judiciary in our country, through their creation of the common law—judiciary law as, I think, Bentham described it—have played a vital role in the progressively changing shape of our law to keep pace with the changing needs of the community and of society: by, for instance, extending the concept of natural justice. However, under the common law they have developed legal principles slowly and empirically from case to case. If the convention were
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incorporated, they would start with statutory principles of the widest generality—I have indicated what sort of ground would be covered—and they would have a free hand to decide how those principles operated in the cases that came before them.
The Convention would acquire a domestic internal significance which might well result in developments quite different from the jurisprudence of Strasbourg itself. The result of incorporation, as I think the report of the Select Committee put it, would graft on to our law an Act of Parliament in form and content totally at variance with any existing legislation and at variance with future laws that need to come forward. I heard with interest the speech of the Chief Justice of Australia, Chief Justice Barwick, on this matter in his address to the Benson Club earlier this year, when he said:
"It is worth saying that the legislature, notwithstanding its burden of party politics, is better fitted to ascertain and express the common will, the common consent of the realm—to use the language of the great charters—than is the judiciary, which does not have at its command the information required to decide upon a new rule or the acceptability of an existing rule in times of change. As well, these days the legislature is served by law reforming commissions"—
—as we are admirably served here—
"able to present the various facets of the problem of what the law should be".
In dealing with that point I should add that Parliament has certainly not been slow during my time in Parliament to legislate in new areas where fresh social problems have arisen—for instance, on race relations, sex discrimination and matters of that kind.
One of the broad issues which we discussed previously was the view that was expressed by learned Lords of Appeal. I am glad to see present the noble and learned Lord, Lord Scarman, who is as doughty in his fight on this cause as is the noble Lord, Lord Wade. But some of his colleagues in the Appellate Committee did not share his view on the matter. They expressed concern that the broad terms of the Convention setting out rights absolute in terms but subject to elaborate derogations would result in a variety of interpretations which would introduce a substantial element of uncertainty into our law. When the, alas! late Lord Morris of Borth-y-Gest debated this matter he said:

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"To enact this Bill would involve and introduce a parade of uncertainties".—[Official Report, 29/11/78; col. 1376.]
It was characteristic language of a dear, lamented noble friend.
The noble and learned Lord, Lord Diplock, expressed his anxieties in his customary vigorous language in our debate on the Select Committee's report, when he said at col. 1366:
"If this Bill becomes law in its present form, it will be open to every fanatic, every crackpot, to challenge any law they disagree with and which they think—indeed can verily suggest—detracts little or anything at all from the absolute right conferred by the first sentence in each article".
He deplored, as did others, the effect of the impact of incorporation and the decision-making which would fall upon the judges if the convention became part of our law. He said (col. 1367):
"The administration of justice in our country depends upon the respect which all people of all political views feel for the judges, and in my opinion that respect depends very much upon keeping judges out of politics. To pass this Bill of Rights cannot but have the tendency to bring judges more and more into politics. That seems to me to be a sufficient disadvantage, and so far as I am concerned, when it is put into the balance, it tips it down upon the side of not passing a Bill in the form of that which is proposed".
I am bound to say I greatly fear that this uncertainty and the broadness of the terms may well result in a great increase of litigation in our courts if these provisions became part of our law.
My Lords, I promised that I would not take up too much of your Lordships' time on this occasion as you have been very forbearing with me before, but I should just like to say this: The convention exists as a great international instrument. We have ratified it, and we have given our citizens powers under it, and I do not think there is any reason to believe that Parliament and Government in this country are likely to act in ignorance of our treaty commitments. I cannot now recollect whether it is a breach of the Official Secrets Acts to mention the existence of the Legislation Committee, but I venture the risk of doing so on this occasion, enjoying of course the protection of the privileges of this House to a Member; but certainly my recollection is—and I have little doubt that it will be happening again under the eagle eye of the noble and learned Lord the Lord Chancellor, who, it may be, is a member of the Legislation Committee—who knows?
The LORD CHANCELLOR (Lord Hailsham of Saint Marylebone): Who knows?
Lord ELWYN-JONES: My Lords, it may be that the committee under this Administration also will be watchful to see that any proposals that come forward that are in derogation or contrary to the provisions of the European Convention, do not go through the watchful eyes of the Legislation Committee, and I can recollect many occasions when that happened in my experience.
Therefore the conclusion that I have come to is this, that I am afraid I cannot myself give my support to the Bill. I am certainly not dogmatic in the views that I have sought to express about it. I do not expect that my noble friend who will be winding up the debate will be inviting your Lordships to divide upon the matter, and I have little doubt that in the fullness of time we shall have further opportunity of finding out whether what the noble Lord, Lord Wade, has said for the third time really is true.
4.35 p.m.
Lord CARR of HADLEY: My Lords, I, too, should like to thank the noble Lord, Lord Wade, and to congratulate him on bringing this Bill before the House. In this matter he does indeed show a truly biblical importunity. I hope that in due course his prayers to your Lordships will be answered in a favourable way. I will certainly assist him in trying to bring about that result.
For the last 10 years or so I have found myself in growing concern about the need for constitutional reform in this country and it is in that context that I wish to support the noble Lord's Bill. Reference has been made to the very fine balance of opinion about the value of a Bill of Rights that was shown on our Select Committee, and I must admit that there was a fine balance of opinion in my own mind. I answer it in favour of the Bill; but I have to say to the noble Lord that although I genuinely wish to support the Bill, I cannot hold out very high hopes that, on its own, it will supply what I think is necessary to allay the concern which I and a growing number of your Lordships, and certainly many other people outside this House, probably

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feel about the workings of our constitution at the moment.
May I say with respect to the noble and learned Lord who lately sat upon the Woolsack that I am afraid that his speech tipped me rather more in favour of the Bill than before, for one reason: he expressed at one time that he was doubtful about the appropriateness of asking learned judges in this or any other country to decide about the pros and cons of the merits of great general issues. As he said, truth is many-sided: seven learned judges may think one way and another seven may think the opposite way. The noble and learned Lord said that he preferred Parliament; but I am bound to say that having been a Member of Parliament for nearly 30 years—26 of them in another place—I cannot really have much faith in Parliament as we know it today dealing properly with these general issues. It might be different with Parliament in a reconstituted form. It seems to me altogether too arbitrary and too "chancy" as to whether it does get down to these subjects. I have no doubt that it can get down to them but, to put it mildly, there seems to be no guarantee that it will do so.
Those who object to a Bill of Rights on those grounds perhaps do not do enough justice to the feeling of many citizens of the importance of being certain of being able to have a libertarian grievance made subject to an impartial review. The outcome of that review itself may not be clear: seven judges may decide one way and seven the other, so the outcome may not be clear. Truth is not always one-sided and clear, but nevertheless there is satisfaction, there is relief in knowing that at least a grievance can be subject to a review and is not subject to the "chanciness" of whether Parliament will, in one's own lifetime, get round to it.
So while on balance I support this Bill, I do not wish to argue my support on the basis of the pros and cons of its legal efficacy but more to put it in the general context of my concern for constitutional reform. My real cause for concern, which has grown very strongly indeed, is that our democratic institutions in this country as they are now functioning have really ceased to provide the effective checks and balances which I believe
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are essential for the safeguarding of democratic freedom in this or indeed in any other country. The power of a majority in the House of Commons has now in fact become absolute. That might be all right, my Lords, if the majority in the House of Commons were a representative majority, but of course under our present electoral system, it is not. An overall party majority can be, and usually is, obtained by a party which has won the votes only of a minority of the electorate.
That too may not have mattered too much in the past in this country, when the major contesting parties shared a great deal of common ground about the nature of our society which they wished to see and the nature of its economy. Rightly or wrongly, in my view, unfortunately, political beliefs have polarised enormously during my active political lifetime, and now one has the position that a party commanding an absolute majority in the House of Commons, however small, can enact fundamental changes which may often also be irreversible changes; and no one can stop them from doing so, even though those changes may be desired by only a minority even of the party in power and definitely feared and opposed by a majority of the electorate as a whole. This seems to me the basic position of which we have to take notice. It is, as my noble and learned friend the Lord Chancellor described, I think for the first time, in those vivid words, the state of an elective dictatorship. I do not believe that is a situation which we should be content to see continue.
If one takes that view, there really are only four effective ways of protecting ourselves against the danger of this elective dictatorship. First there is electoral reform of the House of Commons itself, some form of proportional representation. Secondly, there is reform of your Lordships' House so that it may acquire natural authority—which may be even more important than increasing its formal powers—and once again become an effective check and balance on our constitution.
Lord ELWYN-JONES: My Lords, if the noble Lord will allow me to intervene, is he saying that we are now enjoying the privilege of an elective dictatorship?
Lord CARR of HADLEY: My Lords, I will deal with that in a moment if the noble and learned Lord wishes, but perhaps I may pursue this point for a moment. The third way is the one which is before us today, the enactment of a Bill of Rights. And the fourth, I suppose, is the adoption, as in some other countries, of a written constitution. What I want to submit is that we need at the very least one of these measures, and in my view preferably not less than two of them.
My personal first choice is a form of proportional representation for another place. I think that is the most effective, most fundamental, and in the long run the indispensable single reform which would put this matter right. I have bewailed, in Parliament and out, the fact that the last Labour Government when they first attained office did have an absolute majority in another place, did enact fundamental changes, some of which were very close to being irreversible, in spite of the fact that they had won their absolute majority with the votes of only 28 per cent. of the electorate or 38 per cent. of those who voted. Of course, I take the point that that is not the only case. The present Government, which I am proud to support, even with its much larger majority in the House of Commons still has the vote of less than 50 per cent. of those who voted.
It is some time since I did this research, but I believe I am right in saying that it is as long ago as 1900 that a party standing on its own actually came to office in this country with an overall majority of those who voted in the general election which returned it to power. That, strangely enough, was the Conservative victory in 1900. Although there was a much smaller parliamentary majority in the so-called Liberal landslide of 1906, nevertheless the Conservative victory of 1900 was I believe the last occasion on which a Government in this country came to office on the strength of the votes of the majority of those who voted in the election. Indeed, it has never happened since we have had universal suffrage.
I really do not believe that this is a satisfactory state of affairs, as long as the other place has this absolute power. As I say, my first choice would be to change things in another place. My second choice would be reform of your Lordships'
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House. My third choice is the one before us today; namely, a Bill of Rights. But for this to be effective it seems to me to be necessary to couple it with the fourth option, namely, a written constitution. I must say that of all the four choices this is the one I like the least. I do not say I oppose it, but I approach it with certain qualms and uncertainty. It is certainly the most foreign to the very long established British tradition.
Lord WADE: My Lords, in order that noble Lords may be quite clear in their minds, the noble Lord is referring to the fourth option, namely, a written constitution, which is a very controversial matter?
Lord CARR of HADLEY: Yes, my Lords, that is the fourth, and I hope I have made clear to your Lordships that I have considerable reservations about that. But what we are considering today is the third, namely, the Bill of Rights, and I do support it, I repeat, but I think it is the least effective of all those four. Although standing on its own it is better than nothing—and that is why I wish to see the noble Lord, Lord Wade, successful—I cannot believe that its efficacy will be sufficient to meet all that is needed to allay my own growing concern, which I suspect is shared by many people inside and outside Parliament. So in conclusion, I wish to appeal to my noble and learned friend——
Lord FOOT: My Lords, before the noble Lord concludes perhaps he would allow me to ask a question. He has drawn attention to the three ways in which he thinks that the evil of an elective dictatorship could be avoided. Would he agree that, so far as this Bill of Rights is concerned, it does not provide any safeguard against an elected majority in the other place carrying through a measure which intrudes upon the rights of the subject, because of course it is provided under Clause 3 of this Bill that if there is a conflict between subsequent legislation and the provisions of the convention then, unless they can be reconciled, the subsequent legislation must prevail?
Lord CARR of HADLEY: My Lords, I do agree, and this, of course, is one of the reasons why, although I welcome this Bill, I am bound to say that it is the least of all the measures that I think necessary.

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So may I conclude by appealing to my noble and learned friend the Lord Chancellor. We have noticed that one noble and learned Lord moved from a position on my left to a position opposite me while maintaining the position he held the last time this Bill was debated. I remember with pleasure and vividness how, when he was on the Opposition Front Bench, my noble and learned friend the Lord Chancellor came out in support of this Bill; and I hope that we might hear the same from him tonight. May I just say this to the noble and learned Lord. I certainly realise, as I am sure all noble Lords realise, that he is in a position of greater constraint than he was when this matter last came before the House. But I am sure all your Lordships know that, whatever constraints he may be under at any particular time, he is a doughty and effective fighter for the cause of dealing with this problem of an elective dictatorship in this country. I do hope that, whatever the Cabinet of which he is a member may have decided about the view they must take about this Bill, he will assure us that he will use his maximum strength within that Cabinet to convince them of the importance which your Lordships attach to the need for constitutional reform in one form or another.
We may each have our preferences, and I would not wish to be dogmatic or to die in the last ditch for any one of them. What I would really feel let down by would be if this Government which I support went through its term of office without addressing itself to the need for constitutional reform in some fundamental way. They may not opt, and I fear they will not opt, for my own first choice, but I hope they will do something. Otherwise they will not be being true to the basic precepts and principles of the party to which I belong, and of which they are the representative Government; namely, that the maintenance of our institutions should be the first objective of the Tory Party. It seems to me that our party is a constitutional party, and when I look at our institutions today I feel that in the last decade or so I have seen them decaying in front of my eyes from lack of proper maintenance. So I beg my noble and learned friend to use all his influence to ensure that, even if it is not my preferred form of maintenance, some effective form of maintenance and
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modernisation is brought to bear on the building of our constitution.
4.50 p.m.
Lord REDCLIFFE-MAUD: My Lords, first I should like to say that I personally, in welcoming what the noble Lord, Lord Wade, has done for us for the third time, must assure my noble friend Lord Carr of Hadley that I do not believe that the passing of this Bill will do anything to change the constitution in the way in which the noble Lord has suggested he thinks it needs changing.
It is important that we should be clear in our minds about what it is that is before us. I remind your Lordships that the Select Committee consisted of people drawn from all parts of the House, including two Independents who disagreed with each other. The first witness was the noble and learned Lord who sits on the Woolsack. It was he who first started my conversion to the position in which I now stand in support of the Bill of the noble Lord, Lord Wade.
I entered that committee feeling that I distrusted profoundly Bills of Rights and I did not think that this would help—it would merely throw a spanner in the works of the legal system and give a great deal more money to lawyers, which I did not mind. We heard evidence on both sides, from not only those who supported the Bill of the noble Lord, Lord Wade, but from those who opposed it. As the evidence accumulated I found myself becoming convinced of one thing and one thing only—namely, that on balance, having signed and ratified the convention; having therefore since 1950 committed ourselves as a country regardless of party in that respect; and having gone further (as the noble and learned Lord, Lord Elwyn-Jones, reminded us) and allowed the subject to go and complain against his own country in the Strasbourg Court, we did not do what we should have done, which was at the same time to make this a part of the law of the United Kingdom.
I do not want to weary the House with the reasons for that, which were clearly set out in the Select Committee's report and which are probably familiar to all noble Lords. The "Golder" road to Samarkand—it took Mr. Golder five years to reach Strasbourg and to get his

1019
decision—is not in my opinion a crucial point. Moreover, to be quite honest, it is not to help the Golders of this world that I am particularly concerned in supporting this Bill. However, I think that what the noble and learned Lord, Lord Elwyn-Jones, told us about his celebration of the 25th birthday of the Strasbourg Commission and Court, which culminated in this picture of the court dividing seven for, and seven against, confirms my feeling that, noble and distinguished though the Strasbourg Court I am sure is, and particularly distinguished in view of the contributions of Waldock, Fawcett and others from this country, I do not regard that as a suitable court of first instance for the citizen in this country who knows his convention and thinks that he has been aggrieved.
From the nature of the pattern, the Strasbourg Court is designed as a court of appeal. The noble and learned Lord, Lord Elwyn-Jones, and others on the committee who disagreed with the noble Lord, Lord Wade, were at pains to point out the different technique, which did not require appeal to our own courts, for the convention to have its perfect way. Frankly, it was at that point that I became convinced that they were wrong and that nothing can get away from the fact that, if the Bill receives not only a Second Reading—as I hope very much it will this afternoon—but a Third Reading, and is passed in due course by this House (whatever may happen in another place) what will really matter is that then the courts of this country can start absorbing the content of that convention and making the best of it, the common law and statute law of this country. That is the process which I believe will he encouraged if their Lordships in our own courts, and the other parts of the judiciary, are told that that is something that they must do.
I do not think that we are being honest to our own citizens so long as we deprive them of the help of our own courts in deciding what, if anything, is the relevance of this international convention to the common law and statute law of this country. It is partly as an educational experiment that the Bill of the noble Lord, Lord Wade, is valuable.
The noble and learned Lord, Lord Elwyn-Jones, mentioned that the Legislation
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Committee and members of the Cabinet are advised—as of course we know they are—by their able civil servants, how far any particular part of a Bill may contravene the convention. Of course, Ministers know and so do the particular top civil servants know, as the noble Lord, Lord Allen of Abbeydale, has always known. But do not let us kid ourselves. That is not true of Whitehall as a whole. I speak with shame as one who was head or so-called permanent head—acting or otherwise—of live departments at various times who had never heard of this convention or had read it until he became a member of your Lordships' Select Committee. I do not say that that is characteristic because many of my colleagues are much better behaved than that. However, it is simply not true that the people of this country know anything about this convention—that it was signed in 1950; that it was ratified; and that they have a right to go to the Court and Commission at Strasbourg.
I believe that if one of those terrible questionnaires were sent out and a great deal of money paid to the expert pollsters to tell us how many people know about this, and their answers to questions which I could set them about the convention, I am convinced that the result would be deplorably depressing to those of us who think that this is a statement of human rights which the people of this country share with most of Europe; which they share with large parts of the British Commonwealth; and which they should share—and please God! one day will share—with people behind the Iron Curtain. That, in its international aspect, is something that I find particularly attractive in the Bill of the noble Lord, Lord Wade. Here, of course, we are only dealing with what, to my mind, is the narrow point of whether we should allow, or indeed insist, that the courts of this country should be involved as they will be if the Bill is passed.
However, there is a wider aspect. Human rights is a cause which I believe should be on the agenda of every civilised country in the 1980s. It will take time. But here is a place where we overstep the bounds of nation statehood and think first, as this convention does, of those in Europe who have signed it, and also of the citizens of the world. It is not simply a statement that the citizens of this country

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have human rights, which no Government of whatever party should infringe except in the protection of rights of other individuals. It is not a bare defence of individual freedom. It is a defence of the rights of each individual not only to have the rights but to surrender those rights when that is necessary for the rights of his fellow-citizens in this country, in Europe and in the world. That is what particularly appeals to me and I think to the noble Lord, Lord Carr of Hadley, who opened his speech by saying that it is not the mere passing of this Bill that is at stake, but that it is part of a movement and that we must start at home.
I believe that we have waited far too long. Your Lordships have done a service—and no one more than the noble Lord, Lord Wade—in insisting that we go on and on talking about this. Even if we reached agreement here, it would not meet my point about the need for civil servants and local government officers to be informed of the attitude which, by international treaty, they are committed to adopt with every client with whom they deal.
5.2 p.m.
Lord LLOYD of HAMPSTEAD: My Lords, we have had a long series of debates on this subject, plus a report from a Select Committee composed of Members of this House. One might well be pardoned if one takes the view that there is nothing more to be said on this subject—at least in this House—although it is fair to say that the other place has been, if not notably silent, at any rate very quiet on the subject, which perhaps in itself is of significance. On previous occasions I have ventured to point out—and I repeat it now—that, notwithstanding some of the emotive if not emotional arguments that one sometimes hears put forward, there appears to be no demand by the public for this Bill at all. On the last occasion when we debated this I mentioned the complete lack of interest of the national Press in the subject matter of our Select Committee report when it was published, and the fact that only one member of the Press turned up at an arranged Press meeting—that one member being a gentleman who is known for his passionate interest in this subject.
Recently I was interested to hear a BBC programme in the "You, the Jury" series. After a careful presentation of
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arguments by both sides, with the calling of eminent witnesses who were cross-examined during the proceedings, a vote was taken of those present, and about 70 per cent. of those present were against the existence of a written constitution with a Bill of Rights. Therefore, the idea of there being a sense of need on the part of the public has not manifested itself at all. Nor, as my noble and learned friend Lord Elwyn-Jones pointed out, is there any great principle at stake here because we are all in favour of human rights. The only difference is whether it is an appropriate procedural step to take to incorporate the terms of the convention into our law.
It seems to me that many of the people who favour this step rely on what may be regarded as a rather emotional viewpoint, stirred up by their passion for human rights, which we who oppose it equally share. On the other hand, there are those who support this Bill but in a very lukewarm spirit. I am sorry to see that the noble Lord, Lord Carr of Hadley, is not now in his seat, but in his speech the noble Lord appeared to have very lukewarm enthusiasm for the Bill and thought that there were many other better ways in which we could achieve the result; but as an ultimate pis aller, so to speak, he was prepared to support the Bill.
However, when one looks at the arguments against the Bill and the disadvantages which it would occasion, one would have thought that any careful scrutiny of them would show that they are a very great force indeed. I shall not reiterate arguments that have been dealt with at great length in previous debates. But it is necessary to say shortly that those arguments fall under two headings. One is the immense uncertainty that it would occasion to our legal system. Here one has only to look at the provisions of Clause 2 of the Bill, which the noble Lord, Lord Wade, has already read to us, which provides in substance that where there is a conflict the provisions of the convention and its protocols will prevail. What does that mean? It means that the whole of our existing law is subject to these provisions. Therefore, it is open to argument, and it possibly may be held in many cases that in such a conflict the previous law is overruled.
Therefore, a huge area of uncertainty will be created. Anyone who doubts

1023
that should read—if he has not already done so—the detailed exposé of this matter put before the Select Committee by Sir Henry Fisher, a former and eminent High Court judge who is now the President of Wolfson College, Oxford. At pages 213 to 215 of the Minutes of Evidence taken before the Select Committee he gave a full account of all the areas of uncertainty which would be created by a Bill of this kind. It was detailed evidence which, to my knowledge, has never been controverted.
My noble and learned friend Lord Elwyn-Jones referred to the observations in our previous debate of the late and most lamented Lord Morris of Borth-y-Gest when he expressed his vigorous opposition to a Bill in this form and indicated the absurdity of enacting into our law such general propositions as, for instance, everyone has the right to freedom of expression, everyone has the right to life, and so forth; statutory law should be as clear and certain as possible, and this would produce—as my noble and learned friend has quoted—a parade of uncertainties and would, indeed, create endless opportunities for litigation.
I was rather surprised to hear the noble Lord, Lord Carr of Hadley, dismiss the argument that Parliament is the appropriate place to judge public policy of importance, rather than the judges. He seemed to think that the argument in favour of Parliament was disposed of by pointing out the imperfections of Parliament and the extent to which it does not reflect a precise mathematical representation of the electorate. Surely, in a democratic system the reason why Parliament is to be preferred as the source of public policy as against judges is that Parliament is democratically elected and is accountable to the electorate. Judges, however eminent and however distinguished, are appointed by the Government—though of course they are completely independent; nobody disputes that. Very properly, they are not elected. They should not be elected. Nothing would be worse in my opinion than a judiciary who are elected. That is not the nature of the judiciary. But they are appointed and, having been appointed, they are not accountable, and therefore they are not a
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democratic source of political policy. It is for that reason that Parliament is to be preferred as a source of public policy, and the judges are inherently an unsuitable forum for this kind of decision.
This leads one to the second fundamental objection to the incorporation of this sort of convention into our law—that it will fundamentally change the role of the judiciary and the tradition of the common law. I know that no less a distinguished judge than the noble and learned Lord, Lord Scarman, has argued strongly in favour of extending the judicial role in this way, and has spoken in his evidence to the select committee of freshening up the principles of the common law. Indeed, in the last debate which took place in this House he rather dismissed my opposition to a Bill of this nature as merely an example of complacency. I do not feel that I can justly be accused of complacency on this issue. On the whole my interest, as I think he will be the first to admit, in law reform has been manifest for many years. But I believe—and I hope that this is not complacent—that we should be slow to tamper with institutions, which have served us well for a long period, for somewhat illusory benefits.
In this connection I would venture to refer to the recent address—and my noble and learned friend Lord Elwyn-Jones also referred to it—of Sir Garfield Barwick, the Chief Justice of Australia; one of the most distinguished judges in the whole Commonwealth, as is universally agreed. He delivered a recent address in London on the subject of judiciary law, and he pointed out firmly the dangers of putting our judiciary in the role of law makers. He saw an antipathy, as he put it, between the spirit of the common law and a declaration of rights. He particularly referred—and this is a matter of considerable interest—to "a tendency in some quarters to look longingly across the Atlantic to the greater freedom of the United States judiciary". He then went on to point out that, in a community with a lively parliamentary responsiveness, judicial activism of this sort is really unnecessary and indeed indesirable.
The LORD CHANCELLOR: My Lords, does not the noble Lord see a certain paradox in Sir Garfield Barwick's remark, seeing that he has spent his entire

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legal life under one of the most rigid written constitutions at present existent in the world?
Lord LLOYD of HAMPSTEAD: My Lords, I am grateful to the noble and learned Lord the Lord Chancellor for his intervention, but with great respect I cannot see that because Sir Garfield may have operated under a statutory constitution—which incidentally is entirely different from the American type of Bill of Rights constitution—that in any way disqualifies him from expressing views on the subject of judicial activism, with which he is as familiar, I would venture to think, as any other common law judge.
What is often not realised is that in the United States itself, which is of course the prototype of this type of Bill of Rights constitution, there is at present a very deep disquiet felt at the way in which the judicial role is developing on legislative lines. May I quote one learned writer who wrote recently:
"All too many federal judges have been induced to view themselves as holding roving commissions as problem solvers".
Another learned writer said:
"There is unease at judicial authority striking down laws enacted by democratically elected legislatures. Where, after all, is the accountability of life tenured judges?"
This is precisely the point that I was making in regard to Lord Carr of Hadley's preference for judges as against Parliament in the making of public policy.
Indeed, in the United States at the present day, there is a substantial critical literature on this subject expressing in great detail doubts as to whether the judges, whatever judicial skills they naturally possess, nevertheless possess the right skilled training and expertise to give competent decisions on broad matters of policy. Indeed, one wonders why there is this enthusiasm for American style constitutions at the present day in certain quarters in this country. In many ways it is very arguable that the American constitution is at present proving to be far less workable than our own both in a political and a legal sense, but to develop this would take me too far afield.
I should, in conclusion, like to comment briefly on the view that the noble Lord, Lord Carr of Hadley, expressed when he linked this Bill of Rights argument with
1026
the question of a dictatorship—a parliamentary dictatorship—and suggested that however inadequate, this might have some possible means of control. But he was the first to admit that this was likely to be pretty ineffective, as indeed emerged from Lord Foot's very effective intervention towards the end of his speech.
The fact of the matter is, as a learned writer in a recent issue of the Modern Law Review pointed out, that the law cannot be a substitute for politics. The political decisions must be taken by politicians. In a society like ours that means by people who are removable. There is in the background of all this argument—perhaps it has not become very clear in your Lordships' debates, though the argument has sometimes been pursued more vigorously outside this House—a certain feeling that in this way, through the intervention of the judiciary, it might be possible to restrain certain kinds of Left Wing, or socialist legislation. That seems to me a perilous course and a perilous argument. If what we fear is political tyranny, then we must seek to control that by political means. To try to bring the judiciary into this sort of contest can only have one effect, and that is to destroy the standing of the judiciary in the eyes of the people as a whole.
It is for that reason among others that I remain unrepentant in the belief that the European Convention is best left not as a court of first instance as the noble Lord, Lord Redcliffe-Maud, would wish to see it, but as an international long-stop, where it is of some value, though perhaps of minimal value, and that if we go further and seek to import it into the fabric of our law, that will prove a grave error and one which might inflict lasting and irreparable harm on the working of our whole legal system.
Lord REDCLIFFE-MAUD: My Lords, the noble Lord referred to Sir Henry Fisher's valuable evidence to the Select Committee, and he is perfectly right that Sir Henry Fisher was dead against the Bill. However, would he agree with Sir Henry Fisher in the evidence he submitted to us that in fact a plaintiff, if this Bill were passed and the convention became part of United Kingdom law, could not be worse off and could be better off than as things are today?
Lord LLOYD of HAMPSTEAD: My Lords, of course there may be marginal cases where an individual is concerned where that individual may derive some benefit from the Bill, but that entirely overlooks the crucial point that it is the broad effects of the Bill on our legal system which will be a much greater detriment as against those comparatively small marginal advantages which will be to the benefit of the individual. The noble Lord may not accept my argument but I hope he appreciates that it is the nature of the view put forward by those like Sir Henry Fisher who oppose the structure of the Bill.
Baroness GAITSKELL: My Lords, does the noble Lord recall what Sir Henry Fisher said—namely, that however bad the law is the judges must support it? I think anyone who says that is not living in the world today.
Lord LLOYD of HAMPSTEAD: I am grateful to my noble friend for that intervention, but if I attempted to answer it we might get into a very broad field and one which might bring our present Master of the Rolls speeding to these Benches to intervene. I will therefore refrain from attempting a detailed reply.
5.23 p.m.
Viscount MASSEREENE and FERRARD: My Lords, I apologise to the noble Lord, Lord Wade, for hearing only the last part of his speech. Believe it or not, my train from Kent was four hours late. It got stuck on the hill coming up from Rochester, with a freight train in front. I suggested to the driver that we should try to give it a push but he replied that such a course was irregular. However, in the end we did give it a push and, very slowly, we got it going. My Lords, I shall be brief because I am surrounded by eminent lawyers and I am no lawyer. However, I wish to make it clear at the outset that I support the Bill and hope that the old adage "Third time lucky" proves to be the case for the noble Lord, Lord Wade. After watching events over the years I feel that the individual in this country has been losing his individual freedom. We have had innumerable statutory instruments, enabling legislation and an avalanche of regulations; in many respects the individual is having his freedom taken from him. At one time
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Britain was in the forefront of freedom for the individual, and I have always believed that freedom of the individual was the most important freedom, perhaps even more important than freedom of the State.
Indeed, one can say that an Englishman's home is no longer his castle. I read somewhere of the great number, in fact thousands, of officials who have the right to enter anybody's home. And when one goes outside one's home there are all the various Government bodies, commissions and boards such as the Forestry Commission and the Highlands and Islands Development Board, with compulsory powers; I agree that they use those powers carefully, but nevertheless they have them and that is another reason why a Bill of Rights is essential. As my noble friend Lord Carr of Hadley said, this is especially so as we have no written constitution. An unwritten constitution has served us well in the past, but times have changed and—who knows?—we might have a lot of wild men in power.
Several noble Lords: Might have?
Viscount MASSEREENE and FERRARD: We may already have had a few, my Lords. In any event, it could be dangerous without a written constitution. I was reading a report on SLADE, the artists and writers union; perhaps other noble Lords have read it. The report had some strong criticism for some of SLADE'S members. Referring to recruiting people into the union it said:
"without any regard whatsoever to the interests or welfare of the respective recruits".
I have with me a newspaper cutting on the SLADE report in connection with a man named Marriner who runs an art studio in London. Apparently he is all for having unions but believes membership should be optional, and I quote from the cutting:
"One evening two men arrived at my works and asked if they could see my staff. The staff declined an invitation to drinks with the two men, who turned out to be SLADE officials. A few weeks later Mr. Marriner was accosted by one of the two men, who said he wanted to organise the staff into SLADE. Despite objections from the staff, the SLADE official"—
apparently the national organiser, Mr. Martin—
"said, ' Unless everybody joins within 14 days we will close you down. We will block everything you produce'."

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Everybody in the studio joined after that, except for one man, and he had to leave. Do we not require a Bill of Rights? It is an appalling situation. I think the noble and learned Lord, Lord Elwyn-Jones, said that, after all, we have ratified the convention, and all that, and that any man who feels himself aggrieved in this country can appeal to the Strasbourg Court. Well, of course, that is quite true. But, my Lords, it is a very expensive process, and I doubt very much that many people realise that they can do that. I also feel that, if there are a lot of people from this country who consider that they have been unjustly treated and they go and appeal at Strasbourg, that will not do our prestige much good. There was a case involving three railway workers. I think that British Rail dismissed 56, or, it may have been, 54 men for not joining the appropriate railway union, and three of them appealed to the Strasbourg Court, at great expense. I understand that their appeal has been upheld, and presumably they are due quite a lot of compensation from British Rail. That is the only example I know of. It was presumably very expensive for them; I suppose they were backed financially.
But how much better it would be if we enshrined the European Convention on Human Rights into our own law. I cannot understand the objections against doing that; they do not seem logical to me. I can understand the behind-the-scenes fear of so doing. I do not want to introduce any party feeling into this—though I cannot avoid a little—but obviously it could be rather unpleasant for the unions. But I am not going to dwell on that. I will not speak any longer because I have said quite enough, and I am surrounded by many eminent lawyers who are far more able than I am to deal with this matter. But I should like to say again how heartily I support the noble Lord, Lord Wade, in his Bill, and I hope it has success.
5.33 p.m.
Lord SCARMAN: My Lords, I should like to join other noble Lords in congratulating the noble Lord, Lord Wade, on his persistence in the noble cause of human rights inside and outside this House. Like the noble Viscount who preceded me, I hope that third time will be lucky, and whatever may happen to the Bill in another place, I earnestly beseech this House to
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give it a Second Reading, to study it in Committee, and let it go on its way to another place. It is sad in a way that this modest little Bill—to which I shall be returning from the constitutional flights on which some noble Lords have taken us—should excite such interest in constitutional and political questions. Those who have supported the Bill have done so on broad constitutional grounds with which the Bill is only remotely linked. Those who have opposed it have in some ways queered my pitch, talking of judicial activists, judges entering politics. I began to wonder whether, as a professional judge who has already earned his pension, I could conceivably rise and address your Lordships on this Bill. I decided that I could because my pension is already safe.
Let us look at the Bill—only three clauses of it. I commend the two principles to be found in the Bill. The first principle is that the European Convention on Human Rights and Fundamental Freedoms should be incorporated into our law and should be enforceable in the ordinary courts of the country. The second principle is that if Parliament wills—and this is a matter for Parliament, not for judges—that this Bill of Rights should become part of its statute law, then so long as it is part of the statute law of the Kingdom, it shall enjoy pre-eminence over other statutes. That does not mean that it will be entrenched and Parliament cannot amend or repeal it. It merely means that, so long as it is on the statute book, it shall enjoy pre-eminence.
Surely in a civilised society such as ours we should be not only prepared, but eager, to ensure that a statute, whose duty it was to protect our human rights and fundamental freedoms, should have preeminence. It is really no good paying the slightest attention to the siren, sweet voices of some noble and learned Lords whom we have heard this afternoon, and say that this will create uncertainty; it is completely inimical to the legal traditions of our country. Not at all! Magna Carta has always enjoyed, and still enjoys, the sort of pre-eminence that this Bill suggests the European Convention should have. We have a Bill of Rights almost 300 years old. Since it was enacted it has always enjoyed, and will continue to enjoy, so long as it remains on the statute book, pre-eminence over other statutes, and indeed over the common law.
Lord Lloyd of HAMPSTEAD: My Lords, will the noble and learned Lord permit me to put one question to him on this point?
Lord SCARMAN: My Lords, I hope that the noble Lord will please allow me for the moment to develop my theme. I wanted to point out that the preeminence of the 1689 Bill of Rights and Act of Settlement is such that our parliamentary Sovereignty and the independence of the judges both depend upon it. The European Communities Act of 1972, as long as it remains on our statute book, will enjoy the sort of pre-eminence that I am discussing.
I cannot believe that we would be prepared not to give a Bill of Rights the sort of pre-eminence proposed in Clauses 2 and 3 of this Bill, if we were prepared, as I suggest we should be prepared, to incorporate it into our law and to make it enforceable. The argument against incorporating it into our law can take many forms. One form that is commonly taken is this. It is quite unnecessary to introduce the European Convention or a Bill of Rights into our law because our law already secures to us the various rights and freedoms which are set out in the convention. Well, the European Court of Human Rights does not think so. We have already had from the noble Lord, Lord Redcliffe-Maud, a reference to the Golder case. There was the recent Sunday Times case dealing with the freedom of speech.
There are question marks in the minds of most lawyers over the right of privacy in our law; and one could enumerate other vital human rights and fundamental freedoms protected by the European Convention which are certainly doubtfully protected, and, one would think, not wholly protected, by English law. So there is a case for saying that this convention is necessary because we are failing in our duty—and it is a duty imposed upon us internationally by Article 1 of the convention—to secure to persons within our jurisdiction the rights and freedoms set out in the convention.
Then, surely, my Lords, there is a great advantage in having these rights and freedoms, which we recognise it is the duty of our State to secure to our citizens,
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enforceable in the ordinary courts of our country. It is really absurd, I would suggest, to say that the enforcing of those rights by our judges under a statute enacted by Parliament—because that is what this Bill will be if it is passed—would be bringing the judges face to face with political, non-justiciable issues. European judges at Strasbourg have been handling these matters perfectly well for a very long time. There are our colleagues, fellow members of the Council of Europe, who have signed and ratified the European Convention, who have incorporated it into their law and who, so far as I know, are having no difficulties with their judges and no difficulties with the substance of their law. In fact, to use for a moment one of the European languages recognised by the European Convention, I know of no judge in any State which has ratified the convention who has been led to behave, because of the convention, au-dessus de sa gare—not one. I would suggest to your Lordships that these fears can be set upon one side.
Now, let us look just for a moment at some of the objections which have been developed by the noble and learned Lord, Lord Elwyn-Jones, and others in the course of the debate this afternoon. I would summarise them (I hope not incorrectly) as threefold: first, that there would be the risk of a flood of litigation from crackpots and others; secondly, that the judges would be led into politics and would become powerful in areas where they should exercise no power; and, thirdly, the uncertainty of the law. Of course, there would be more litigation. The litigation would be, not all the time, that of crackpots and fanatics—there are plenty of those litigating in the Strand at the moment. It would be litigation arising from minority groups, from individuals and others who have no political clout, who have grievances and who would then be able to turn to our courts seeking judicial redress. If litigation in this country is swollen by the addition to litigants of immigrants, convicted prisoners and other minorities and individuals without political clout because they have grievances which they think constitute infringements of their human rights or fundamental freedoms and they want them adjudicated upon by judges, why ever not? What is there to fear in that? Is there not very much to welcome in it?

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My Lords, this alarm about floods of litigation might be said to be no more than a respectable facade for suppressing that type of litigation. Why should those people without any political clout have to go to Strasbourg to get justice? And, if judges in Strasbourg can give them justice, what is the sense of the argument that if an English judge, administering and interpreting an Act of Parliament—because that is what he would be doing—should dare to give him justice, that English judge is going beyond forensic bounds and is moving into the area of politics? I beg to suggest to your Lordships that that objection is nonsense.
Now, let us look at the next objection—that of the overpowerful judge. As long as a judge is applying either the common law or a statute enacted by Parliament, and is called upon, when applying the statute law, to interpret it, he is performing a judicial function. He will be doing no more than that if called upon. as Strasbourg judges are regularly called upon, to interpret a statutory Bill of Rights. It is said by the lawyers; Oh!, but this convention is in too broad terms. This convention is declaring matters which should be the subject of Parliamentary redress, not judicial redress". Of course, as long as the convention remains on the periphery of our law, poking its nose in occasionally when some bold judge in the Court of Appeal or elsewhere thinks it valuable to take a look at it, as long as it remains in that no-man's land on the frontiers of our law, then it is somewhat political to start looking at it: but, if we bring it respectably and legitimately into the law by a statute enacted by Parliament, what is there then in the principles so introduced which is so dangerous that a judge cannot read them, understand them, interpret them and apply them?
Finally, there is the uncertainty argument—the uncertainty of the law. We have heard a lot about that, but let me tell your Lordships what I heard on Radio 4 the other night. It was a programme entitled "Talking Law", and my noble and learned friend Lord Denning, who unfortunately is not here this evening—he has deserted the Floor of the House for the stage of Lincoln's Inn, where I am told he is giving a performance—was asked whether he advocated the introduction and incorporation of the
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European Convention into our law. "No", he said; "I like it where it is. When I want to use it, I can". My Lords, that is uncertainty. Either my noble and learned friend sitting judicially should be required by law, where it is relevant, to pay attention to the European Convention, or he should not. At the moment I have every sympathy with my noble and learned friend and, indeed, with other judges in handling the European Convention.
When I sat, as I was privileged to do for a number of years, with the Master of the Rolls in the Court of Appeal, from time to time, particularly in immigrant cases, we referred to the European Convention, because we were concerned to keep our administration of the immigration laws in line with the convention. But it was a tentative business and, of course, anything that we did could not in the slightest degree affect or guide the development of the human rights jurisprudence that is developing in respect of this convention at Strasbourg and elsewhere. That is a great loss to Europe as well as to this country.
It is really hopeless to talk about uncertainty when the European Convention in its present limbo is creating uncertainty in our law. There is another little opening of uncertainty in regard to the convention. The European Court of Justice in Luxembourg, which administers, as we all know, the Common Market law, has declared that when a question of human rights comes before it in the course of its jurisdiction it will apply the European Convention. I need not tell your Lordships—I have said it before—that, of course, the Luxembourg Court is the only constitutional court that we have. It is a constitutional court by virtue of the European Communities Act 1972 and its decisions are such that in the area of Common Market law we have to follow it. So there we are. In this little area of law covered by the Common Market the convention must be followed.
But when one is dealing with minority groups, when one is dealing with individuals, who cannot get their grievances handled in Parliament, we deny the convention to them. But when the commercial men are fighting their cases in the Common Market law, the Luxembourg Court which we must follow is applying

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the convention. This limbo should not be allowed to continue. We can end it by taking our courage in our hands and incorporating the convention and making it enforceable at law.
My Lords, I have spoken for too long but I wish to end with a reference to Northern Ireland. There was a very moving debate in this House last week—and I was privileged to listen to it—on the condition of Northern Ireland; the need for a political or constitutional initiative, the need for stability in administration and local government and the need to breed in the minority population of Northern Ireland a sense of confidence in British law and British administration. It is no accident that perhaps the best document produced in this country on the European Convention and the Bill of Rights was presented to Parliament in 1977 by the Northern Irish Standing Commission on Human Rights. It was a unanimous report that Northern Ireland required a Bill of Rights. A majority wanted it as part and parcel of a United Kingdom Bill of Rights, taking the European Convention as the Bill of Rights. One dissentient said, "Let us have it whether those people on the other side of the water have it or not". And that in a community where Her Majesty's Government have considered it necessary from time to time to file notice of derogation under the European Convention in Strasbourg. I suggest that that is food for thought.
Of course, the law is no panacea for social, political and economic troubles; but it can help. And if there are remedies available according to a law which is universally understood, acknowledged and upheld according to principles which people can see, understand and accept and which they know the courts are going to accept, then, within those limits, the law will help. And it is within those limits that the European Convention will play a very important part. If this becomes law, the European Convention will be a guide to legislators, to administrators and to judges that Parliament requires these principles to be observed in all aspects of our public life when the State, whether administratively, judicially or legislatively, is dealing with the subject. It is for that reason that I most fervently support this Bill, and it is for that reason
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that I thank the noble Lord, Lord Wade, for introducing it for a third time.
5.55 p.m.
Baroness GAITSKELL: My Lords, it is a privilege for me to follow the noble and learned Lord, Lord Scarman, and, as on the last occasion that we debated this Bill of Rights, his speech gave me great pleasure. As a matter of fact, I should like to tear up the speech that I have here except that part of it where I say that I support the noble Lord, Lord Wade, and I would read out—declaim, in fact—the speech of the noble Lord, Lord Redcliffe-Maud. I should like to do that because it was he who really showed what the whole business in individual petitions (when it was introduced in the United Nations when I was there) really mean to the whole of the world; and the importance of it, of which very few people in this country have the least understanding.
The noble Lord, Lord Wade, once again initiates a debate on a Bill of Rights. I hope that it will not become a hardy annual We have had three. Perhaps we will get somewhere with this one. I remain somewhat conservative (with a small "c") in my approach towards a Bill of Rights, as I think is already known. I am not a lawyer and I do not feel competent enough to go further than to plead for the incorporation of the European Convention into our domstic law. That seems to me to go a long way, since there is no threat to the sovereignty of Parliament. My views have been influenced by my experience during the years when I was the United Kingdom delegate in the European Rights Committee of the General Assembly of the United Nations. It was there that I learned that human rights were the increasing concern of the international judiciary as well as the national Governments. The main point made by the noble Lord, Lord Redcliffc-Maud, which struck me so forcefully, was that the law, and not war, was the solution to human rights violations.
Reading once again the report of the Select Committee on a Bill of Rights, and turning to the chapters reflecting the judgments of those who were against a Bill of Rights, I could only construe them, from my own point of view, as being for such a Bill. I will give a few of these: one, the interpretation of race relations;

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two, freedom of speech; three, education; four, punishment, et cetera. Great play had been made about the dangers of incorporating the European Convention into our domestic law because this would flood our domestic law with uncertainty. But I believe that uncertainty is the prelude to change, and surely there are areas where improvement is desirable. So I remain unrepentant and I believe that to incorporate the articles of the European Convention into our domestic law is not beyond the ingenuity of our legal profession. Surely this must be true, as the present situation in the United Kingdom is in accord with the original philosophy of the European Convention. Of course, there might be conflicts but surely these can be put right when the United Kingdom law at this time happens to fall short of the standards of the European Convention.
As I am not a lawyer, as I said before, I am unable to think of the law as an immaculate conception. Surely, it must constantly regenerate itself in tune with the political changes of our time—and the changes come thick and fast today. I believe that the time has come when Parliament should exercise its power by legally incorporating the European Convention for the Protection of Human Rights into our law. Parliament now has a duty to incorporate the European Convention—for instance the provisions under Article 13—to have effective remedies for any violations of human rights in this country. If European judges can have effective remedies for such violations, why cannot English judges too have the same power to give effect to these rights? Why can German, Dutch and Italian judges exercise these rights? Today English judges must take the long, slow trip to Strasbourg. It seems to me that the European Convention is not only good for our own judges, it is also good for our civil servants, for our Members of Parliament, for all our people in fact. We agree with the moral and legal values set up by the European Convention, surely this should now have the blessing of our courts. They appear very simple rights, but they are often abused. I will give a few examples, such as the right to marry and have a family and the guaranteed right not to be discriminated against. We have all heard about the Conservative Government's new law to deprive a group of United Kingdom women of the right
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of genuine marriage with foreign men. This is but one instance of a violation of these guarantees. Let us think of telephone tapping, violating the right of privacy in Article 8. There are no legal safeguards against the misuse of the power of the police to tap telephones. The case of Mr. Malone, lost in the English court, has now gone to Strasbourg. There is the interference with the right of prisoners to communicate with the outside world following a Home Office standing order—that is, without being passed by Parliament—so that, if this is allowed, there is no legal redress. These are but a very few things that incorporation of the convention would allow to be dealt with in our own courts.
May I ask the noble and learned Lord the Lord Chancellor for reassurance that individuals will be able to go to Strasbourg for individual petitions, and that this will be renewed up to 1981? I would add one final sentence in favour of incorporation of the European Convention into our domestic law. This can only benefit our own laws; it does not take anything away and so can only strengthen and widen our law. It is a unique right that we are acquiring with an international Bill of Rights.

BUSINESS OF THE HOUSE
6.5 p.m.
The LORD PRESIDENT of the COUNCIL (Lord Soames): My Lords, with the leave of the House and for the convenience of the House, I should like to make a Statement on the business for next week. I apologise to the noble Lord, Lord Wade, for interrupting his debate and also to the noble Lord, Lord O'Hagan, who is to speak next.
Yesterday I said in my Statement on the proposed arrangements for the Southern Rhodesia Bill that it was expected that the Bill would reach this House in time to be taken through all its stages on Monday. I have now to tell the House that the Bill will still be being considered in another place on Monday. The Official Opposition have, however, given an undertaking that it will reach this House when it sits, to be taken through all its stages on

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Tuesday, with a view to the Bill receiving Royal Assent on Wednesday. Consequently, this House will not sit on Monday and the Motions for approval of statutory instruments which are on the Order Paper for Tuesday will be postponed until Thursday. I regret the inconvenience which may be caused to the House by this change but I hope that the House will recognise both the business complexities involved and the unusual importance at an international level of the Bill.
Lord PEART: My Lords, the House will wish to thank the noble Lord for making that business Statement. We of course understand that the other place should have as much time as possible to deal with a Bill so important as this one. This means that your Lordships' House will have only one day for discussion, but we on this side will use our best endeavours to achieve completion of all stages of the Bill that day.
Lord WADE: My Lords, I should like to join with the noble Lord in thanking the noble Lord the Leader of the House for making that Statement. We said from these Benches yesterday that we would be happy to consider the Bill, and consider it very carefully in one d ay on Monday. We see no reason why we should not do so in one day on Tuesday. We realise that a change of business causes a great deal of inconvenience for noble Lords, but we feel sure the House will wish to co-operate as far as possible in clearing the ground for a possible settlement in Zimbabwe-Rhodesia.
Lord SOAMES: My Lords, I am most grateful to the noble Lords from the Opposition and the Liberal Party for what they have said and for the understanding that they have shown in these difficult circumstances.
Lord HATCH of LUSBY: My Lords, while welcoming the Statement of the Leader of the House, which indicates a much more seemly attitude on the part of the Government towards this very important Bill—and particularly during the visit of President Kaunda—may I ask one simple and indeed simplistic question? A number of us have put
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Starred Questions down for Monday. What now happens to those?
Lord SOAMES: My Lords, I regret this. I would not have thought that it was advisable for the House to meet just for Starred Questions. I can only apologise for the difficulties involved for noble Lords who have put down Questions. A possible answer, given these difficulties, is for the Questions to be withdrawn and put down for another day, or they may be left and they will receive Written Answers, whichever noble Lords prefer.

BILL OF RIGHTS BILL [H.L.]
Second Reading debate resumed.
6.9 p.m.
Lord O'HAGAN: My Lords, I am glad that so many of your Lordships have come to hear about the Bill of Rights, and I welcome the interest which this House continues to take in this important subject. May we now return from Rhodesia to Strasbourg. I returned from Strasbourg, leaving at 4 o'clock this morning, in order to take part in this debate, so I hope your Lordships will excuse some of the incoherence of my remarks. I should like to sympathise very much with the noble Baroness, Lady Gaitskell. I, too, came with various proposed speeches, all of which I have now abandoned because the deeper principles, which those of us on the Committee who agreed that this Bill should be incorporated into domestic British law share, have all been dealt with, in particular in two remarkable speeches by the noble Lord. Lord Redcliffe-Maud, and the noble and learned Lord, Lord Scarman.
I should therefore like to make a few comments merely in the margin—a few "scribbles at the top of the chapter"—but before embarking on my own small commentary on the passage of this Bill I should like to thank all my colleagues on the Select Committee for having contributed to my further education in these matters. Your Lordships' House has a special role in the constitutional development of this country and I think this Select Committee can be an example of how this House, in its present form, can contribute to the solution of the constitutional

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difficulties which my noble friend Lord Carr discussed in his most important speech. Like every other participant in this debate, I must thank most of all the noble Lord, Lord Wade, for his persistence in bringing this matter to your Lordships' attention. I hope he will not need to persist for too much longer.
I was alarmed—I am sorry that the noble and learned Lord has gone—by the nature of the comments of the noble and learned Lord, Lord Elwyn-Jones, as well as by some of the comments of the noble Lord, Lord Lloyd of Hampstead, not because they sit on the opposite side of the House, since the difference between their views and mine is not essentially of a Party political nature; but it seems to me that the arguments they advanced and the arguments we heard advanced throughout the proceedings of the Committee are really, if closely analysed, arguments against ever having signed the convention in the first place, or arguments against continuing to be a signatory to it, having signed it.
These arguments are based on a deep and introverted view of the nature of law and Parliament. They are arguments which reject any relevance of an internationally binding convention of any sort, if taken ad absurdum, because the arguments they were putting forward are of a sort which lead one, taken to their fullest conclusion, to be opposed to the idea of having binding conventions of this sort. That, my Lords, is the starting point of my own education. I will not go through all the rest of the stages in your Lordships' House tonight. We sat for a long time in the Select Committee and, like many other members, I began as a doubter. It was this, as it seemed to me, slightly emotional attitude of some of the opponents towards incorporation that started to raise questions in my mind which led in the end to my being one of the majority of eight in favour of incorporation.
I wish to leave the legal arguments to others, not out of cowardice but because there are others who will deal with them better. I should like to return to the nub of the argument of the noble and learned Lord. Lord Elwyn-Jones. He was arguing for a very rigid demarcation line and for a very firm and stern barrier between the judiciary and Parliament. I agree that
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that line must be firm and must be stern. I also agree, to use his words, that:
"Parliament is the place for the discussion of broad issues of public policy".
Of course it is, and of course it must remain so; but all elected bodies tend towards the tyranny of the temporary majority. I have just joined a new elected body without traditions. I am a member of a temporary majority of the Centre Right in the European Parliament. It is very annoying in committee when independent members of the libertarian Left lie on the floor or cut off all the microphones. It is extremely infuriating when those of us who wish to work are prevented from so doing because somebody else tables 5,000 amendments to a particular report. But concern about getting on with the job must not turn into tyranny of the temporary majority—and Parliaments can turn tyrannical. I would ask your Lordships to look at what happened during the French Revolution and to remember the lessons of Cromwell. So I think there are deeper considerations than a purely reverential attitude towards the role of Parliament in these matters. We must remember that Parliament itself can be an instrument of tyranny if it is not restrained, and this is the place of the European Convention in helping towards the restraint of the tyranny of the temporary majority.
Some noble and learned Lords— not in this debate but in other debates on previous incarnations of this Bill—have cast aspersions on the mental agility and deductiveability of the British judiciary. Other Members of this House—not I— have said they would be incapable of ever applying this Convention. I doubt this myself. I do not know, but I suspect that most judges are capable of judging on a wide variety of evidence. I am also concerned, to use the phrase of the noble Lord, Lord Lloyd of Hampstead, at the emotional tone in which this sort of comment is made. There is a place for emotion in these discussions because noble Lords are talking about what each of us believes in deeply and how it can he protected. Of course there is a place for proper emotion, because we feel deeply about these matters; but we cannot let feelings allow us to cut off the possibility of adaption. The emotional tone of some of these comments about the incapability of judges to adapt themselves to

1043
interpreting the European Convention, as if they were tender, ignorant and innocent people who must somehow be protected from pollution by these dangerous and libertarian ideas, is something that I find reprehensible.
I think the British people, of all different races and parts, especially Wales—I see the noble Lord, Lord Raglan, and his views are well known—have a genius for taking things from abroad, adapting them and developing them into something specifically British: look at architecture, music, Christianity or the Monarchy. All those ideas are not ours alone but we have developed them into something which is specially ours. Are judges somehow so foolish and so wayward as not to be able to adapt the European Convention in such a way that they can make use of it here to protect those categories of people mentioned by the noble and learned Lord, Lord Scarman?
I conclude by saying that there are three major anxieties which preoccupy me about the downward path of this country. One is constitutional decay. I share the concern of my noble friend Lord Carr of Hadley and I implore my noble and learned friend the Lord Chancellor to use his influence to make sure that this Government help to prop up the British constitution and develop it and advance it wherever they can.
I am concerned also about the decline in the respect for the law generally. The incorporation of this Bill into our own domestic law would be a minor and modest step in showing that we would obey our international obligations and make the law more accessible to the individual. But especially as a European Parliamentarian, I am concerned about our increasing tendency towards narrow introversion and the kind of backward-lookingness which is restrictive and not proud of tradition. Of course, anybody who forgets his past cannot build a secure future and that applies to any country. But if we allow the perspectives to become so narrow that we look at the rest of the world through nothing but a telescope made in Britain, then we are in danger. Some of the concern, some of the opposition and some of the anxieties about this Bill are of that narrow introverted nature, and it is that kind of narrow introverted view of our future that led to
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our staying out of the Community for far too long, and has led to our not ratifying this international obligation in domestic law for too long.
I conclude—I said that earlier, but I mean it this time—with a plea to my noble and learned friend on the Woolsack, to whose difficulties I do not wish to add. Conservatives on the Select Committee, I suspect—there was not a Whip—all went in doubtful. They all voted for incorporation in the end. I think this illustrates that it is now becoming an essential part of the obligation of those who are concerned about the modern interpretation of the principles and roots of the Conservative Party, that constitutional issues, once relegated to the textbook, the federalist and the lecturer, are now becoming part of day-to-day politics and of active concern to those who wish the country to continue and to continue united.
Of course, this is not a special prerogative of this Party or this House, but I believe that this Government now have a special duty to use the veneration for continuity and tradition, of which the Conservative Party is an embodiment as well as an exponent, to make sure that the British constitution works and works for everyone. This little Bill, which must, I hope, proceed through your Lordships' House quickly, is a minor part in that rather larger task. I hope that the Bill receives a Second Reading and a speedy Committee, Report and Third Reading in your Lordships' House before going to another place.
6.23 p.m.
Lord PLANT: My Lords, I, too, want to thank the noble Lord, Lord Wade, for his persistence in pursuing this issue and for tabling this Bill. It is a long saga. I just want to remind your Lordships that, when the Kilbrandon Commission was considering constitutional issues in Northern Ireland, a special document was prepared by the Government of the day which said:
"Many of the subjects likely to be dealt with in a Bill of Rights are subjects which it is proposed should be devolved to Scotland and Wales (and might also be within the competence of some future Northern Ireland legislature)"
In January, 1957, the committee of my noble and learned friend Lord Gardiner recommended that,
"consideration should be given to the enactment of a Bill of Rights".

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Then, still with a Northern Ireland flavour, in June, 1975, my right honourable friend Merlyn Rees said in another place,
"A Bill of Rights or legislation covering the human rights law, will be part of the next constitutional legislation for Northern Ireland".
Twelve months later, my right honourable friend informed the other place,
"The Government acknowledge the consensus in the Report"—
that is, the Constitutional Convention—
"that there should be further legislation on human rights. It will consider how best to make appropriate statutory provision in the light of the detailed study currently being undertaken by the Standing Advisory Commission on Human Rights in Northern Ireland".
I had the good fortune to be chairman of that Commission and we produced a document which finally recommended a Bill of Rights for the whole of the United Kingdom. We could not see how there could he a Bill of Rights for part of the United Kingdom; that is, Northern Ireland. The Northern Ireland Committee of the Irish TUC came out very strongly in their evidence in favour of a Bill of Rights for Northern Ireland. The British TUC has recently gone on record as supporting a Bill of Rights for Northern Ireland. I can only say that a Bill of Rights in Northern Ireland would not stop violence and I am quite unrepentant, having looked at this issue most carefully over a long period, in believing that a Bill of Rights for the whole of the United Kingdom is now necessary, because modern conditions and the march of events point to the need for such a Bill.
For example, we contrast with other countries in not having fundamental rights guaranteed. This is more important than ever, given our accession to the European Economic Community and the proposed accession of the Community to the European Convention on Human Rights. Your Lordships' Sub-Committee on Law now has before it the document from the EEC and it will he interesting to see its conclusions. It would be better to make a conscious decision about a Bill of Rights, rather than wait for the European Court in Luxembourg to start making decisions about what ought to happen in our domestic law.
As the noble Lord, Lord Carr, said, there have to be adequate constitutional
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powers to prevent the abuse of power by Government or Parliament. There is no modern and coherent system of administrative law enabling citizens to obtain prompt, speedy and adequate legal redress for the misuse of administrative powers by public authorities. The number of cases going to Strasbourg is growing, and it would be an advantage, in terms of access to our own courts and a saving in cost to members of the public, if we had the European Convention incorporated into our laws. The noble Viscount, Lord Massereene and Ferrard, made the point that we ought to reduce the cost to individuals of endeavouring to obtain redress.
We must look to the future. A Bill of Rights would face up to the problems which we can only vaguely foresee. We live in a very complex industrial society and the scope and impact of new technology on employment, education and economy is quite fantastic. But these changes and advantages will somehow have to be controlled, and it would be helpful if, under Article 8 of the European Convention—which reads,
" Everyone has the right to respect for his private and family life, his home and his correspondence"—
persons concerned about privacy could raise in a court the implications of the technological change, if they so wished.
The point here is that in a stable society existing legal institutions can "apply the law", but we are experiencing rapid technological changes and it is vital, when change is the order of the day, that there is a meaningful way of gaining an answer as to what should or should not happen, and how the change should proceed or should be controlled. Whatever the imperfections of the European Convention, at the very least it is a valuable and worthwhile starting point. Improvements to it could be introduced, but in conjunction with our partners in Europe. The articulation of rights in the European Convention—Article 60 mentions this—in a Bill of Rights in the United Kingdom would not detract from the existing rights provided under the statute or the common law of England. Article 60 reads:
"Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may he ensured under the laws of any High Contracting Party or under any other agreement to which it is a Party".

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Many of the people who argue against the incorporation of the convention into our laws seem to omit consideration of that issue.
We are aware that over the years there have been many measures to try to protect the civil liberties of citizens and to ensure that the convention is understood only as 'a minimum standard. The alleged difficulties for a judiciary are over-emphasised. It is entirely possible for the judges to adapt their practices and interpretations to read existing law in terms of the European Convention, and some already feel that as an international obligation they must already do so. This has been emphasised in the penetrating speech of the noble and learned Lord, Lord Scarman. May I say how persuasive was the speech made by the noble and learned Lord, Lord Scarman, and how delighted I was to learn today that the noble and learned Lord will be delivering the Lord Mac-dermott Lecture at Queen's University, Belfast, next April and that he will also be undertaking a task for the Human Rights Commission in Northern Ireland, since he is to address a symposium on a Rill of Rights.
There is an anxiety as to whether the entire convention and protocols should be incorporated, or only the substantive provisions. The argument in favour of the former is to avoid confusion by tinkering with the convention as drafted. The argument in favour of the latter is not to clutter up a Bill of Rights statute with procedural material which would additionally dilute the effect of a clear statement of guaranteed rights. There should be a positive statement of the rights guaranteed under law. There is an educative effect and value of a positive statement of rights. It would be useful if there were a schedule setting out the substantive provisions of the statute. Whether this should be Articles 1 to 14 or Articles I to 18 is not really crucial. However, it should be set out somewhere for all to see the basic and fundamental rights which must and will be guaranteed by law.
Some people say that it is impossible, under Motions of parliamentary sovereignty, to entrench any statute so that the provisions are superior to other statutory
1048
provisions, while other people say that a Bill of Rights must be entrenched and have superior validity. I am convinced that as a matter of politics the point is not very strong. If you announced a guaranteed list of rights, then it would be an extremely courageous Government which ever tried to detract from them. In other words, a Bill of Rights would be clung on to by the public.
Stating Articles Ito 14 and the protocols would be useful. In addition, however, it is essential that Article 60 should be respected, whether by incorporation in the Bill or otherwise. The whole point of Article 60 is to make it plain that the convention only guarantees some basic rights and is not exhaustive and does not cut down under the other rights and privileges allowed under the domestic law of any of the high contracting parties. It would be wise in any Bill of Rights statutes made in the United Kingdom to understand that other rights are not disparaged or denied in any way.
The important element before your Lordships' House is to have support in favour of the principle of Lord Wade's Bill. There will be detailed amendments in committee and I have indicated some of those which might possibly materialise. Our discussions are a continuing source of parliamentary education about the values of a democratic society. Like my noble friend Lady Gaitskell, I hope that the discussions will very soon be brought to a successful and fruitful conclusion.
6.36 p.m.
Lord ALLEN of ABBEYDALE: My Lords, I rise with some diffidence at this stage of the debate, but having totted up the number of speakers who have spoken in favour of the Bill it is perhaps time for a voice to be heard briefly expressing a rather different view. May I begin by saying that for reasons of which the noble Lord, Lord Wade, is aware I was unable to be present for the first part of his speech, and to my regret I missed the comments which I understand he was kind enough to make about the Select Committee. This was indeed a fascinating and, as I found it, educative experience.
One of the things I learned on the Select Committee was that the United Kingdom is the only signatory of the

1049
European Convention which has neither incorporated the convention into its domestic law nor evolved a charter of fundamental rights as part of a written constitution. I am bound to go on and say that I have never seen this as being conclusive on the question whether we should now legislate. However, when we last discussed these issues there was some doubt about whether a recent and rather complicated judgment of the Strasbourg Court—in the case, as I recall, of Klass and Others—has some bearing on whether there was an obligation upon a signatory to embody the convention into its domestic law.
I am not sure whether those doubts have been resolved. However, on the assumption that this judgment of the Court does not put a firm obligation on us, I am bound to say that notwithstanding the eloquent arguments we have heard today—notably from the Cross-Benches—I remain unrepentant in keeping to the conclusion I reached on the Select Committee. And may I say to the noble Lord, Lord O'Hagan. that I reached in an unemotional way the conclusion that the case for incorporating the convention into our domestic law has not been made out.
Like other speakers, I do not want to go over ground that we have already trodden several times. However, I should like to say that one of the considerations which appeals to me is the question of uncertainty. I am afraid that the explanation today of my noble and learned friend Lord Scarman has not removed all my doubts. The problem, as I see it, is this: the effect of Clause 2 of the Bill would be that principles of wide generality, as set out in the convention, would override our existing legislation which is drafted in a very different way. The problem of assessing the precise effect of the general on the particular, and therefore of knowing exactly what the law was in important areas, would introduce real doubt and uncertainly—doubt and uncertainty which could be removed only slowly, either by fresh legislation or by decisions over the years by judges on the accident of the cases which happened to come before them.
I cannot see any analogy here with the functioning of the justices of the United States Supreme Court, for a variety of reasons, obviously including the fact that
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there is a written constitution in the USA; nor do I think there is a very good analogy with the function which our judges have always had under the common law. But these are issues which we have discussed several times before, and having stated my own view I do not propose to pursue them any further this evening.
However, the second of the two points I want to make relates to the form of the Bill, if we are to have a Bill at all. If we are, as I think everyone has agreed, the incorporation of the convention with all its defects and absence of areas which it covers, is clearly the right course. I also welcome the new version of Clause 3, for the reasons which I am sure the noble Lord, Lord Wade, explained earlier today. There is, however, one small problem under that clause which has made me wonder a little and that is the position in relation to consolidation Acts, which appear before this House in a steady stream, passed after the Bill of Rights came into force. These Acts would simply repeat the existing law in a more convenient form and without any changes of substance, but the actual date of enactment would be such that it seems to me that they would then be caught by Clause 3 rather than by Clause 2. I do not know whether the noble Lord, Lord Wade, commented upon this problem when he opened this debate hut, if not, he may like to consider commenting upon it when he comes to wind up.
Lord SCARMAN: My Lords, I think the noble Lord is absolutely right. A consolidation Bill enacted after the enactment of a Bill of Rights would be caught by Clause 3.
Lord ALLEN of ABBEYDALE: My Lords, I am grateful to the noble and learned Lord. It is nice to have a judicial ruling so promptly. There are a number of other points, most of them discussed by the Select Committee, which make me wonder whether this short Bill, if it is to go ahead, does go quite far enough. If I may mention them briefly, it seems to me that they are rather more than being cosmetic amendments suitable to be raised only at the Committee stage. The first point is that the Select Committee thought that the convention ought to be set out in full in the Bill, and although I

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did not hear the explanation given by the noble Lord for his decision not to include the convention in this latest version, I am bound to say that I think it is rather a pity that it is not included. If these provisions are to be of such concern, not only to the courts and to Parliament but to society as a whole, it seems to me that they ought to be readily available on the statute book. Incidentally, I cannot help thinking that if an amendment were tabled at Committee stage to add the convention and all the protocols it would probably be one of the longest amendments ever moved in the history of Parliament—but no matter.
I am also somewhat uneasy about the provisions of Clause I in relation to the protocols which the United Kingdom has not accepted. I am not at all sure that the clause would bite if we withdrew our reservations at some future date. I think there should be a specific power in the Bill to make Orders-in-Council to deal with such eventualities, and perhaps also to deal with future amendments of the convention itself—and we all know that the convention is very much in need of amendment. I think one ought to be able to do this without having to legislate afresh each time. I think there should be a specific power in the Bill for the Government to be able to make a declaration of derogation in time of war or emergency. It is somewhat unrealistic to leave it to the judges to come to a leisurely decision under Article 15 after hearing argument on whether we are in such a state of grave emergency that we ought to derogate from our acceptance of the convention. Perhaps more important, I am inclined to think that the Bill ought to make some provision for remedies and I know that my noble and learned friend Lord Scarman had some sympathy with this view when he met the Select Committee, although I know too that this would take us into pretty deep water.
References to the closed shop remind me that one point for consideration is whether the Bill ought to provide specifically that its provisions can be invoked against non-governmental organisations and private parties: and I think, too, that there is something in the conclusion which the Select Committee came to, that the Bill itself should make provision
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requiring the courts to have regard to the jurisprudence at Strasbourg, although certainly not making it binding upon them. That is quite a formidable list of points on which this short Bill is silent and if some of them were adopted at later stages the Bill could end up by looking quite different from the document we have been considering today.
One final comment before I sit down, my Lords. Reading again the previous reports and debates on this topic, and without in the slightest wishing to minimise its importance, it still seems to me that there is some risk of attaching too much importance to whether or not we have a Bill of Rights. A society which is contemptuous of the values embodied in legislation of this kind, as we know only too well, looking round the world, is not made virtuous by changing the law. It seems to me that more important are a country's political climate and its traditions and whether there are enough responsible persons and a responsible Press—and perhaps I may end by quoting, I hope accurately, something which is not usually quoted in full—
"to exercise the eternal vigilance which is the condition upon which God hath given liberty to man".
6.49 p.m.
Lord FOOT: My Lords, l wonder whether it would be permitted for me, although I have not put my name down on the list of speakers, just to intervene for a few moments: and I promise your Lordships that I shall occupy your time for no longer than that. I had the privilege, with others who have spoken in the debate this afternoon, of being on the Select Committee and, unhappily, I differed from my noble friend Lord Wade upon this issue. On the last occasion when we discussed this matter in this House I did not have the opportunity to make any contribution and I should like briefly to indicate one reason at any rate why I found myself in the position of differing from him.
It is never agreeable to me to find myself differing from my noble friends, and in particular from the noble Lord. Lord Wade, but I fortify myself with the thought that there is no difference between us about the immense importance of this general issue of constitutional reform in

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this country, and the arguments for and against the setting up of a Bill of Rights. There is no disagreement about that. And similarly there is no disagreement between us about the importance which we attach to the freedom of the individual and to civil rights.
Having said that, I do not want to do anything more this evening—because so much has been said, and very happily said, on both sides of the House upon this issue—than deal with one single issue; that is the issue to which the noble and learned Lord, Lord Scarman, paid particular attention, and which has been perhaps the most important point of controversy during the course of this debate. It is the question as to whether incorporation of the European Convention into the domestic law of this country would in fact involve and include and import into our whole legal system an unacceptable degree of uncertainty.
If I may say so to the noble and learned Lord, Lord Scarman—and indeed I address anything to him with the greatest possible hesitation because my admiration for the noble and learned Lord over the years has never fallen short of idolatry; it is highly idolatrous, and therefore I hesitate to make any comment upon what he has had to say—I do not think that he has given due justice to the anxieties which not only I and others but many of his judicial colleagues have expressed about the uncertainty which this incorporation might introduce. It is not, I would suggest, a mere theoretical objection to introducing theoretical uncertainty into our legal system. It is much more specific; it is the fear that we will introduce uncertainty as to what are the human rights in this country.
This is the cause of my anxiety, and what I should like to do is to seek to illustrate the reason why I take that view by reference to one particular civil right which is one of the subject matters of the European Convention. It is a commonplace, of course, certainly for lawyers, that in this country the way in which we have defined individual rights in the past has not been by engaging in generalised solemn pronouncements about the virtues of freedom of expression and freedom of speech and the like. The way we have gone about it, for better or for worse, under our constitution, is that we have sought to establish remedies available to the individual if his
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civil rights are in fact infringed. The way we have defined civil rights in this country is not by engaging in wide pronouncements but rather by providing remedies, so that if somebody's rights are infringed he has a remedy and he has a court to which he can go to obtain that remedy. The great virtue of that, I suggest, is that it means that the citizen can be reasonably certain of, and can reasonably ascertain, what his rights are. The danger that we see in the import of the convention into our law is that it will introduce, and indeed gratuitously introduce, a new element of uncertainty.
May I explain to your Lordships very briefly how I suggest that that arises. Let me take one element in the business of human rights, the law of defamation, the question of freedom of expression. As your Lordships will all know, over the years in this country, through the common law and partly through statutes, we have developed a law on defamation which is at the same time sophisticated and complicated. It involves a lot of rather esoteric concepts such as the concept of absolute privilege, the concept of qualified privilege, the concept of fair comment, and the effect of malice upon the defences of fair comment and qualified privilege and the like. Over the years we have built up this system of law which defines precisely, or as precisely perhaps as one can do in human affairs, what are the limits upon the right of one man to write or say about another. That is the system which we have at the moment.
Supposing, however, that you incorporate the European Convention into our system of law. You will be incorporating among many other things Article 10, which is the one that begins by saying that everyone has the right to freedom of expression. When one turns to the second paragraph of that article one finds these words—I may say in passing that I am going to leave out words which are relevant to matters other than defamation:
"The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society for the protection of the reputation and rights of others".
Now, my Lords, what happens when we incorporate that in our law and we provide, as this Bill does under Clause 2, that:

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"In case of conflict between any enactment prior to the passing of this Act and the provisions of the said Convention and Protocols, shall prevail"?
I should like to ask this question: Whenever anybody brings an action for defamation, libel or slander it will be open, will it not, to either party to question whether our domestic law as it has developed up till now has in fact been superseded by the Convention on Human Rights? That point would inevitably arise. It will not be a matter of crackpots bringing the matter up; it will be a matter raised on every occasion. The judge and the court will have to ask themselves whether the law as it existed before the passage of this Bill has in fact been superseded. Then the court or the judge will have to go on to ask whether the law as we have it today is "necessary in a democratic society for the protection of the reputation and rights of others".
My Lords, why should a court, or why should a judge, be invited and required to engage upon a speculation of that kind? It opens the door, of course, to caprice and arbitrariness. One of the most evil features of so-called justice under so many of the totalitarian regimes of this world is that judges decide cases having regard to the interests of the State. Is every judge who sits upon a libel case, or indeed upon an issue which involves privacy or an issue which involves official secrets, always to ask himself, "Is the law that I am administering something which is necessary in a democratic State?" I suggest that that is a judgment that no judge or court ought to be called upon to make and a judgment that should be made by the representatives of the people—by Parliament. It is for Parliament to make that decision.
That is all that I wish to say. Unfortunately I still believe that this measure, as presented before us today, is one that will not be advantageous. However, I should have liked to say to the noble Lord, Lord Carr of Hadley, had he been present, that I entirely agree that, if we once start upon a major constitutional reform, then it may well be—as has been said by the noble and learned Lord, Lord Hailsham of Saint Marylebone, so often on previous occasions—that the case for a written constitution and a Bill of Rights, is made out.
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I am sorry for having intervened for longer than I intended. I apologise for standing between your Lordships and the remaining speakers, especially the noble and learned Lord, the Lord Chancellor.
7.1 p.m.
Lord BOSTON of FAVERSHAM: My Lords, one matter upon which I think we all agree tonight is that the noble Lord, Lord Wade, is to be congratulated on his determination. I am sure that we all admire the way in which he has urged the House consistently and repeatedly to adopt a measure of the kind now again proposed and he does so, as he did in the Select Committee, in such an engaging way.
I was sorry not to be able to be present when your Lordships last debated this subject on 29th November 1978 in the debate on the Report of the Select Committee on a Bill of Rights. I happened to have been attending the last session of the United Nations General Assembly, helping to deal with human rights matters, among others, as a member of the United Kingdom delegation and, if I may say so, trying to emulate the high standard which had been set there over many years by my noble friend Lady Gaitskell. I should like to add how much I enjoyed her speech tonight.
However, I have read the report of the debate of last November and, as a member of the Select Committee, perhaps I could add my warm tribute—belatedly, but this is the first opportunity that I have had—to the outstanding and genial chairmanship of the noble Lord, Lord Allen of Abbeydale, and the excellent service we all received from our clerk, Mr. Valiance White, and our specialist adviser Mr. Rippengal. Perhaps also it is not inappropriate to add that we all valued all of the evidence that we received, not least from the Standing Advisory Commission on Human Rights in Northern Ireland, chaired by my noble friend Lord Plant, who also made a valuable contribution in his speech tonight.
There is another matter which was touched upon by the noble Lord, Lord Foot, and on which I hope that we are all agreed—namely, that none of us, whether we are in favour of the Bill or against it, has a monopoly of enthusiasm

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for promoting human rights and no one on the one side will say of anyone on the other side that he is wanting when it comes to furthering those aims. Indeed, it might be worth recalling a significant paragraph in the Select Committee's report, where it states in paragraph 6 at page 20:
"The Committee feel it is of great importance to emphasise that, although some of the members favour incorporation of the Convention into United Kingdom law and some oppose it, there was unanimity of view on the need to protect and advance human rights and unanimous recognition that both sides were wholly committed to the promotion of human rights".
I emphasise that, because, although it is most unlikely to happen here in your Lordships' House, it might be all too easy for some people outside to claim that those of us who do not support the Bill, do not care enough about human rights. I am also sure that, when the noble Lord, Lord O'Hagan, in his interesting speech tonight referred to my noble and learned friend Lord Elwyn-Jones and my noble friend Lord Lloyd of Hampstead, and rather suggested that perhaps they were casting cold water upon the whole idea of the convention, he was not charging them with anything of the kind. Indeed, as he knows, my noble friend, Lord Lloyd of Hampstead, was a member of the committee and we all shared with the noble Lord, Lord O'Hagan, a passionate feeling in favour of human rights and so too with my noble and learned friend Lord Elwyn-Jones. Indeed, as regards my noble and learned friend, I cannot think of anyone who has shown a more enthusiastic, long-standing and passionate support throughout his life for the cause of human rights. Having said that, I share the enthusiasm for human rights which was expressed by the noble Lord, Lord Redcliffe-Maud, and by my noble friend Lady Gaitskell.
As our debates in your Lordship's House have revealed, there are differing views within all the main parties, in your Lordships' House and indeed on the Cross-Benches as well. Therefore, I certainly cannot speak for everyone on my side of the House, let alone anywhere else. I was among those members of the Select Committee who voted against incorporating the European Convention on Human Rights into our law. I should like to mention two or three of the main reasons for taking that view. Although some of
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those have been referred to in our debates in your Lordships' House in the past, I am encouraged to take this course by the speech of the noble Lord, Lord Redcliffe-Maud, because it' after some 30 years of the convention he can say that there are very many people—indeed an overwhelmingly majority—who do not know anything about that convention, I venture to fear that there may well be a similar number of people who still have not taken in the arguments against, or indeed it may well be for, the Bill of Rights of the noble Lord, Lord Wade. and the arguments about the incorporation of this convention. Of course, this is, in fact, the first opportunity that I have had to give my own view to your Lordships' House.
One of the most fundamental objections to incorporation is that it would—as the committee's report observed in stating the arguments against incorporation of the convention—graft on to the existing law an Act of Parliament in a form totally at variance with any existing legislation, and in a way which would be incompatible with such legislation. Among those who have referred to this problem is my noble and learned friend Lord Elwyn-Jones.
It has long been accepted in our constitution that Parliament legislates in a specific form and that the role of the courts is to interpret that legislation. If we took the course proposed and incorporated the convention, we would be opening up a wide variety of legislative policies in a very general way and handing them over to the judiciary for detailed development—not just interpretation, but detailed development—on such subjects as race relations; freedom of speech; freedom of the Press; privacy; education; forms of punishment and so on. Yet, those are all matters which, under our constitution, have been the province of the legislature.
I share the view of those who say that, under a Bill of Rights, it would not be the case that the role of the courts would be no more than the type of role they have always had at common law. For at common law the development of legal principles has been a slow process—and that is something which has been referred to in the course of our debate tonight—evolving, as has been emphasised, from case to case. But, under the Bill, they would start off with a set of broad

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principles and would then have a free hand to decide how to apply those principles to the individual cases coming before them.
In your Lordships debate last November the noble and learned Lord, Lord Morris of Borth-y-Gest, whose wise council and geniality we miss very deeply on so many matters in your Lordships' House, put the matter in the following way at column 1373 of the Official Report:
"Before we put a measure on the statute book must we not he quite certain that there is a need and that a need has been proved to legislate in the proposed terms? Very often legislation comes about as a result of some strong demands, often vigorously expressed. We have not, I think, experienced such processes. However, my opposition to the suggested legislation does not rest on my view that no substantial advantage has been shown to result from the passing of the Bill, but rather on my view that there would be positive and serious disadvantages.
"The legislation would be in a form quite different from the accepted style of legislation in this country. It would always be possible to change our scheme of things; it would always be possible to legislate and to lay down some precept or good intention and then to say, ' Now we leave it to the judges to work it out '. I should be wholly opposed to any such system. In my view, it would be quite undesirable for Parliament partly to legislate and then to hand over the matter to the judges and require them to legislate as to the remainder. I am quite sure that Her Majesty's judges will do whatever they are asked to do by Parliament. But I am also sure that they would not ask to have powers put upon them to make decisions which really are decisions as to the content of legislation".
So the noble and learned Lord endorsed that major argument against incorporation.
As was pointed out in the committee's report, Parliament has repeatedly demonstrated that it is ready to move into new areas of law-making, where the need has been shown to meet fresh social problems. It is far better for Parliament to enact detailed legislation, as it has, on such matters as sex discrimination and race relations, than to leave it to the unelected judges, who are not there in any representative capacity, to develop policies and work out how they should be applied. Indeed, as we all know, a legislative role is given to some of Her Majesty's judges here in this very House, where part of their very function is to play a full and immensely valuable part in the statute law-making process. However, in my submission it is here that they are meant to fill this particular role, not elsewhere.
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Another matter of great concern which has been referred to by a number of noble Lords who opposed the Bill tonight—including the noble Lord, Lord Allen of Abbeydale, my noble friend Lord Lloyd of Hampstead and the noble Lord, Lord Foot—is the uncertainty in the law which we foresee arising. Surely we would all agree that, so far as possible, the law should be clear and certain. After all, that is one of our principal roles as legislators. But if the European Convention were made part of our domestic law—a convention which is couched in broad terms proclaiming wide generalisations open to a variety of interpretations—it would introduce a vast area of uncertainty into our law. I agree with those who draw the conclusion that it would become much more difficult for individual people as well as companies and other bodies to get confident advice about their rights and obligations, their powers and their liabilities. As the Select Committee's report put it when noting this objection:
"The uncertainty thus brought into our law would itself afford opportunity for exploiting endless challenges in the courts or before any tribunal to the validity of the existing laws. No one would know where he stood until each question had been tested afresh, and the least that can be said is that there is the prospect of a very great extension of litigation in the courts".
To put it in less elegant language, it would indeed he lucrative for lawyers; a soft option for soliticors; indeed a bonanza for the Bar. Therefore, not for the first time in your Lordships' House I find myself, as a lawyer, advocating policies against more income and work for my profession. It is fair to say that the noble and learned Lord, Lord Scarman, in his fascinating survey conceded that there would, indeed, be more litigation arising.
It is also noteworthy that the Law Society came out strongly against the Bill in its evidence to the Select Committee and in a note by its Law Reform Committee published after the Select Committee's report. Among the Law Society's strongest objections to incorporating the Convention, it mentioned the problem of the uncertainties that it said would arise in our law. Of course, other arguments against the Bill have also been raised; some are noted in the report and some have been mentioned tonight by noble Lords.
I return to the main fundamental objections of those of us who oppose the

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Bill and the questions that those objections raise. This is not to venture into the nevertheless interesting constitutional implications that arise out of a survey of this whole matter, which, for example, have been mentioned tonight by the noble Lord, Lord Carr of Hadley. However, the questions that do arise are, for example: Who should be responsible for reforming and developing our laws? Whose responsibility is it to legislate? In whom should power reside? Whose task should it be to intervene in new areas of law reform and who should formulate and introduce new, detailed measures? Should it be Parliament, with its representative democratic elements, or should it be the non-elected judges?
I believe that part at least of this argument is about power, where power resides and should reside in our democracy and under our constitution. I am sorry to differ on this point from the noble and learned Lord, Lord Scarman, whose evidence on this to the Select Committee we all very much enjoyed. We are considering here matters of the highest constitutional significance.
When the noble and learned Lord the Lord Chancellor—for, if I may say so with respect, whose views on legal matters I have the highest regard and, therefore, it pains me to differ from him on a matter of this kind—spoke in the debate in your Lordships' House last November he raised a number of objections to opposition to the Bill. I was not there, in fact, to hear them, but in part the noble and learned Lord said that those who were against the Bill of the noble Lord, Lord Wade, were saying that our own judges are too stupid or too biased to do what we have deliberately put into the hands of the judges abroad as justiciable. As I say, I was not present to hear the noble and learned Lord make his speech and I, therefore, do not know what was the expression on his face when he delivered those words or whether, partly at any rate, he delivered them with tongue in check. But I should like to assure the noble and learned Lord the Lord Chancellor that that is certainly no part of my argument and I believe it to be no part of the argument of those who are opposed to this Bill.
Our judges are able people, perfectly capable of doing whatever Parliament asks them to do, as Lord Morris said last year.
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But in my submission it is a question of what Parliament should empower them to do, not a question of what they are capable of doing. The judges are powerful, and rightly so. Their power derives from the statutory authority that Parliament gives, from the common law and, on a more personal basis, from their own qualifications and intellectual qualities. It is true that the power they possess through the common law is considerable. To develop the law through interpretation and the gradual process of reform has, indeed, brought immense benefits over the centuries. This power has come down to them over the centuries.
In my submission, it is one thing to draw benefits from those gradual developments, which have taken place over the centuries, but it is quite another suddenly to give that gradual common law process of interpretation and development a significant, if not vast, new role and purpose—in fact, one might almost say a new statutory basis for the common law itself. It is a change quite unlike any change it has undergone before. Those who are against this Bill are certainly not saying, "Don't let us reform the law". On the contrary, we are saying, "Let us continue to urge Parliament to bring in the necessary reforms".
In my submission the objections are not least that the uncertainties people would face in seeking legal advice would be too high a price to pay for the flexibility claimed by supporters of the Bill, and answer the claim that the individual citizen could not on any footing be worse off with a Bill of Rights. I am afraid that I cannot support this Bill, but I would just add that in view of the importance of the subject matter that it raises, neither I nor my noble and learned friend Lord Elwyn-Jones would feel able to urge your Lordships to resist a Second Reading of this measure.
7.21 p.m.
The LORD CHANCELLOR: My Lords, I deliberately did not come into this Chamber with a prepared speech. I hope that my judgment in not doing so will be justified in the event, but one is always running a risk when one takes this course. Clearly I have a delicate task to perform. On the one hand I have to declare the attitude of the Government,

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as I understand it to be, as a member of that Government without disloyalty in any way to my colleagues. Secondly, I do so in the knowledge that I have gone on record, I should think not less than a dozen times, in favour of Lord Wade's Bill in one of its variant forms. I have spoken in favour of it in this Chamber at least three times. I gave evidence to the Select Committee once under the chairmanship of Lord Allen of Abbeydale, and I also gave evidence to the Northern Irish one under the chairmanship of Lord Plant. If anybody thinks that I am going to unsay a word of what I said on those various occasions when I was free to speak without constraint, I can only say he has misjudged me seriously. I am not going to unsay a word of it.
I must say first of all on behalf of the Government that this Bill is one in which there shall be at every stage, so far as I can judge, a free vote. That is to say, I am free to vote for it and I should if there was a Division—I rather gather that there will not be—and so is every other member of the Government, free to vote against it if that is what they feel. It is a genuinely free vote. Secondly, I must say—and I hope that this will not be too disappointing to the noble Lord, Lord Wade, because I gave him fair warning that he was likely to get at any rate this douche of cold water—that having made what inquiries I could about the state of business below the corridor, I cannot see the smallest chance of an icicle in June of the thing getting on to the statute book this Session. Especially as although there are no party politics in this in one sense, my belief is that the Liberal Party, in spite of the noble Lord, Lord Foot. is 99.9 per cent. in favour, the Conservative Party I would think is about 70 per cent. in favour, and the Labour Party is probably about 70 per cent. against. The opportunities for the consumption of parliamentary time during this Session that this would present are, I think, an insuperable obstacle against the chances of its seeing the Royal Assent this Session.
The third thing that I say, and I say it as a member of the Government, is that if noble Lords refer to the Conservative Party Manifesto at the last general election, they will see that we proposed constitutional talks. I was going to write to my colleagues in the Government and to
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either the noble and learned Lord, Lord Elwyn-Jones, or the noble Lord, Lord Boston of Faversham, whichever they prefer, and indeed to the noble Lord, Lord Wade. to try to find out what are the prospects of party talks on this subject of incorporation. We are ready to hold them. I am personally anxious to hold them, but I do not want to swim in treacle for about six months and then find that we get nowhere. So I want a candid answer—not now, but in answer to a letter which I shall try to compose—to the question of exactly where the constitutional talks that we said we were ready to have would get if we were to invite people to them, and of the form in which anyone thinks that useful talks can be held. I should like to see something like this on the statute book, and I know very well that I am not going to get it on the statute book simply on the basis of a main Government programme Bill opposed by the Labour Party. It is not realistic and it is no good pretending that I think it is.
That brings me to the actual merits, or demerits according to which way you look at it, of the Bill itself, and of the arguments which have been deployed. When I was appointed Lord Chancellor this time my noble friend Lord Boyle of Handsworth—I hope he will not mind me, without leave, quoting his verdict of me—said that I had got an extraordinarily long experience. Indeed, I am the only surviving member of Mr. Churchill's coalition during the war who is still in active operation. So I have a very long experience. He said that I had a longer experience than anybody except Mr. Churchill himself.
I am left, I must tell the House, with a growing sense of despair and exasperation at the appalling conservatism of the legal profession of which I am a proud member. It is no coincidence at all that those who have opposed this Bill—whether it is the noble Lord, Lord Foot, or the noble Lord, Lord Boston of Faversham, or the noble and learned Lord, Lord Elywn-Jones, or the Law Society, or all the rest of them—have all been professional lawyers, and they have all said, "Well, it will give a legal bonanza. There is so much uncertainty. It is a new pattern of legislation, and we really cannot face learning a lot of new law".

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The other thing which has exasperated me in a long life has been the appalling inertia of this political machine, of which we are all part, in anything which is in the nature of structural change. It has been with a growing sense of despair that I have seen the gradual grinding to a halt of what I believe to be the effective working parts of our constitution. I have said that in opposition and I should be less than true to myself if I did not say it now individually as a member of the Government.
To listen, for instance, to the noble Lord, Lord Foot, or to listen, for instance, to the noble Lord, Lord Boston of Faversham, about the role of the judiciary—and I am coining back to that again and again in the few remarks I want to make—one really would think that one would not have realised to the full that by signing this convention we have handed over to foreign judges the very role which they say we cannot hand over to our own. That is what I meant. I did not have my tongue in my cheek when I said those words. It annoyed the noble and learned Lord, Lord Elwyn-Jones, when he was sitting there more than I can say because he thought I was insulting him. But the fact is that I really meant that if you sign a convention in these terms the time to object, to put this sort of argument forward, was when we were handing over these very problems to foreign judges.
When the noble Lord, Lord Foot, says, "What about the law of defamation?" he is making a perfectly valid point. It raises difficult questions. But it will raise them sooner or later in Strasbourg, because the foreign judges will have to sort it all out then and say whether our law of defamation is compatible with the European Convention, just as they had the other day to sort out the question whether our law of contempt was against the European Convention.
This is where I take up what was said in an extremely eloquent speech by the noble and learned Lord, Lord Scarman: by denying our judges a right to play a part in this debate they are adding to the uncertainty, they are compounding the uncertainty, because the court in Strasbourg—and I have just visited it myself, just as Lord Elwyn-Jones did at my invitation; I thought it right that on rather different
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occasions we should go there—is far from perfect. It would do a great deal to that Court if there was a jurisprudence in this country fitting the law of defamation—fitting the various bits of the common law and statute law which we have inherited from our forefathers—into the European Convention, as we are bound to do.
If we listened only to the speeches against the Bill today, I think we should be surprised to recall that in every case (not in some or the majority but in every case) when we have given independence to a former colony we have not only given to the judges of that colony the right to decide the very subjects in the very way in which we are told we should be doing—I quote from memory, "lasting and irreparable harm", as the noble Lord, Lord Lloyd of Hampstead, put it, to our own constitution if we gave it to our own judges—not only have we given those very powers to the judges of every colony to whom we have given independence since 1945, but we have actually entrenched it in a written constitution so that they cannot be repealed.
It is in this context that I feel like Alice Through the Looking Glass listening to my legal friends deriding the possibility that we might incorporate these things into our law when we have solemnly, and as a great benefit, conferred on them and given in every independent colony just that role to the judges. I say to Lord Elwyn-Jones, to whom I always defer with very great respect and love: I wholly disagree with him, and I disagree with the lawyers, when they say, "The judges have one role, Parliament has another, and one is better than the other and one must stand above the other". No one doubts that Parliament is sovereign—that is what this Bill is about—but if you ask whether judge-made law is better than or inferior to parliamentary law, I would answer that they ought to work, as they have worked for 350 years at least, in concert with one another, the one supplementing the other; each has its virtue and each has its disadvantage.
Sometimes when I read the judgments of, say, the noble and learned Lord, Lord Denning, I only wish that before he formed such radical conclusions he had the kind of evidence from numerous parties that is possessed by a Select Committee or Royal Commission. Sometimes in reading the

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particularity of the parliamentary draftsmen, whose esoteric art is accepted almost without question in both Houses of Parliament, I wish that they had sometimes tried to sit in judgment in a case in which their own work was being scrutinised after the event and see how many gaps they had left in it.
That brings me back to the argument on the Bill and to what Lord Scarman said. If you sat, as I have been sitting now for the best part of 10 years on and off, on the Appellate Committee of this House, you would notice that nine cases out of 10 are concerned solely with the question of what on earth Parliament meant by certain unintelligible words. delivered a judgment in this House this very morning in which this question, fortunately with the concurrence of four colleagues, was debated, but it is not always that such debates arrive at unanimity. Oh dear no! In a judgment which we are going to deliver, I hope some time in the next two weeks, there is a long history of litigation about the same words going back to 1963 in which the House of Lords divided 2–2 on one occasion, with the casting vote cast on a different point—so that the case actually had an end result—and certainly two of them had got it wrong.
We are being told—and the noble Lord, Lord Boston of Faversham, says with great pride that this is an entirely new pattern of legislation which we are imposing on our poor judges—to try to apply general principles to a concrete set of facts. I beg him to believe that I regard that as a virtue. I really believe there would be less uncertainty if the rules of construction—and I am talking now only about the Bill of Rights but about the whole pattern of appellate litigation in this country—which the courts after centuries have found themselves constrained to apply to statute under our present system—could be properly tidied up.
I believe it is only because the subject is so obscure and so little understood by anybody outside the profession that the thing is not a crying scandal. The thing is a shambles. I could give dozens of examples where different courts, differently composed, have been applying different sets of rules. Do you look at the mischief of the Act or how far are you bound by the actual literal grammatical interpretation?
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Sometimes you will find one judge apparently applying a different set of rules in one case from what he has done in another. And if you go to the magistrates' courts and the county courts of this Realm and see what is actually going on—if you try to read one of the text books like Maxwell on the Interpretation of Statututes—you will realise that there is growing uncertainty. Do you look at blue books? Can you consider the report of a commission? Nobody really knows the answer; some judges do one and some judges do the other. And I noticed a very remarkable judgment of the Master of the Rolls reported in this week's All England Reports in which he said, and I quote almost verbatim,
"We cannot look at Hansard to see what these words mean, but you can",
and he gave the reference as House of Commons Hansard, column so-and-so and such-and-such a date, and added for good measure,
"It was carried by a very small majority".
I should like to see the interpretation of statutes put on a more solid basis. It is a very difficult and thorny subject, but the Law Commission made a report in 1969 which I think deserves rather careful consideration. I know that there are great difficulties and I am not going to commit either the Government or myself to it, but all that this little Bill is—and I accept Lord Seaman's description of it as a modest little Bill—is a rule for the interpretation of statutes. If a certain section of the Law Commission's Report in 1969 had been accepted, it would be totally unnecessary, because that Section said, almost in the words of Lord Wade's Bill—although it did not refer specifically to the European Convention—that, in construing statutes, the courts ought to pay attention to the international obligations which Her Majesty's Government had undertaken and ratified.
At the end of the day I cannot give the smallest hope that the Bill will become law—not this Session anyway. I ask the noble Lord, Lord Wade, to weigh very carefully what I might call the series of committee points made by the noble Lord, Lord Allen of Abbeydale. I do not want to rule or pontificate upon them, but I thought that most of them had some substance, and if ever we do incorporate the European Convention into our municipal law we shall have to pay very

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great attention to the kind of questions which the noble Lord, Lord Allen, was raising. They cannot just quietly be brushed aside. The parliamentary draftsmen, the Departments of State, will have to come to some conclusion upon them.
It is for the noble Lord, Lord Wade, to make up his mind in the end what he wants to do with the Bill. I shall vote for it on Second Reading—except that I do not think that a vote will be taken—and I shall give it as fair a wind as I can. But there must come a point—I do not know when it will be—when the noble Lord, Lord Wade, must ask himself whether he wants to go through the entire process of Committee, Report, Third Reading, and "the Bill do now pass", and so send it down to the House of Commons where it will undoubtedly founder if it goes down this Session, or whether he would prefer to adopt the other line of country adopted by, for instance, the noble Earl, Lord Longford, in connection with his Criminal Injuries Compensation Bill.
I do not want in the least to unsay a word that I said in favour of the Bill. Everything that I would have liked to say at greater length was said better by the noble and learned Lord, Lord Scarman, or by the noble Lord, Lord Redcliffe-Maud, or by my noble friend Lord Carr of Hadley, with whom I agreed in tato, except that I did not agree with what he said about proportional representation. Having said that, I hope that I have told the House what the Government's attitude is, without any loss of personal integrity.
7.43 p.m.
Lord WADE: My Lords, I should like very sincerely to thank all those who have taken part. It has been a very important debate, and the subject matter has been as distinguished as those who have taken part. I have made copious notes with the intention of making appropriate comments on each speech, but there comes a time when one has to assess what it is wise to do. I feel that the House will forgive me if I do not make those appropriate remarks and utter words of thanks in regard to the speeches that have been made. I am awfully tempted to start thanking the noble Lord, Lord Carr of Hadley, for his first point, with which the noble and
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learned Lord the Lord Chancellor disagrees. I am most tempted to encourage the noble Lord, Lord Carr; but I will not do that.
I must make some observations in reply to the remarks of the noble and learned Lord the Lord Chancellor at the end of the debate. Of course I am aware of the situation; of course I have to consider very carefully what is the proper thing to do. After hearing the speeches of, just for example, the noble Lord, Lord Redcliffe-Maud, the noble and learned Lord, Lord Scarman, and the noble Lord, Lord O'Hagan, I could not possibly not attempt to get the Bill through the House of Lords. It is not only because of the Members of this House. I do not want to be presumptuous, but a number of bodies are anxious to know what we decide. They want to know what kind of Bill we have produced. After all, we have been discussing this for several years. We have had a Select Committee; we have sat for over a year. If those of us who agree with the Bill cannot get through a Committee stage and produce a Bill, I am afraid that it will not—I hope I am not disrespectful—help the prestige of this House. There are points to be raised on Committee, and I would agree that some of these points require amendment.
I think the only difference I detected among supporters of the Bill is the question of whether the whole of the convention should be incorporated, or only those parts that set out the rights and liberties. That I see as a fine point of argument, and I hope that it would not take up a lot of time. I would do my utmost to ensure that the Committee stage was carried through as expeditiously as possible. I do not think that it should involve an inordinate amount of time for the reason that the main difference is whether there should be a Bill or not. Quite clearly those who say "not" are going to flood us with amendments. I think that the points will be serious ones on the question of whether the Bill is worded in the most appropriate way so that we can get it through this House.
As to what happens after that, I am not in a position to say. My jurisdiction does not extend to another place. The noble and learned Lord the Lord Chancellor has given some indication that the

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prospects are not exceedingly bright in this Session. But it is certainly my duty to do my best—I have an obligation to my colleagues who are supporting me—to try to get the Bill, in the best form possible, through this House, and I hope that we shall succeed.
On Question, Bill read 2a and committed to a Committee of the Whole House.

SOCIAL SECURITY BENEFITS UP-RATING (AMENDMENT) ORDER 1979
7.47 p.m.
Lord CULLEN of ASHBOURNE: My Lords, I beg to move that the draft Social Security Benefits Up-rating (Amendment) Order 1979, which was laid before your Lordships' House on 23rd October, be approved. I think that it may be for the convenience of the House if we take at the same time the draft Family Income Supplements (Computation) (No. 2) Regulations 1979, the draft Social Security (Earnings-Related Addition to Widows' Allowance (Special Provisions) Regulations 1979, and the draft Social Security (Maximum Additional Component) Amendment Regulations 1979. These three Instruments were also laid before the House on 23rd October.
The purpose of the draft Social Security Benefits Up-rating (Amendment) Order 1979, is to maintain at £45 the earnings limit for the dependent wives of certain pensioners. Your Lordships may recall that the Pensioners Payments and Social Security Act 1979 removed from my right honourable friend the Secretary of State for Social Services the duty of reviewing and, where appropriate, increasing the amount of this earnings limit. As my right honourable friend said in another place on 14th June, it has become common ground between the parties that different considerations apply to the earnings limit for these wives and those which apply to the earnings limit for retirement pensioners. It has become apparent that, as a test of dependency, the wives' earnings limit is already too high. Currently, the joint rate of basic
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pension for a man and his dependent wife is £31.20, and it goes up to £37.30 later this month. A wife earning £45 a week after deduction of work expenses is thus already supporting her husband, rather than the other way round, and some dependency benefit is still payable at present if the wife earns £58 a week. Power was taken, through the Pensioners Payments and Social Security Act, to hold back on up-rating the earnings limit for those wives until it reaches a more realistic level.
With the Bill on its way to Royal Assent, the main up-rating order, which was laid on 4th July, made no provision for increasing the wives' earnings limit. What was not made clear at that time—indeed, it was overlooked in presenting the order—was that what the up-rating order did was to leave the options entirely open by repealing the 1978 order, which had fixed the wives' earnings limit at £45. From that point we could have moved forward to £52 had the Bill not received Royal Assent, or back to £45 when, as of course happened, it did receive Royal Assent. This Amendment order therefore concludes the matter by retaining the £45 earnings limit from the old 1978 order, so that the limit which applies at the moment will continue to apply. In accordance with the provisions of Section 124 of the Social Security Act 1975, a copy of a report by the Government Actuary was laid with the draft order.
I turn now to the family income supplements (known as "FIS") regulations. Here, I am in the unusual position of having to ask your Lordships to agree a further increase in FIS before another, already approved by Parliament, has taken effect. What we are proposing is an extra £1 a week for FIS families to help them pay their fuel bills this winter. Most families on FIS will get the extra £1 by the £2 increase in the FIS prescribed amounts. This is because the amount of FIS a family gets is half the difference between their income and the FIS prescribed amount, which depends on the number of children in the family. The increase in the prescribed amounts will not benefit families who would already be getting maximum FIS payments, and, for them, the regulations therefore provide an additional £1 in the FIS maximum payments. Raising the prescribed amounts has the effect of bringing some more

1073
families into FIS who would not be entitled to it under the rates earlier agreed by your Lordships. Families who benefit from this windfall will in most cases get less than £1 FIS a week in total. They will, however, gain from the FIS passport—the automatic entitlement to other means-tested benefits, such as relief from NHS charges, which FIS brings with it.
When the Government's intention to propose the FIS increases was announced on 22nd October, they were explained as part of a package with measures to be taken by the Supplementary Benefits Commission. Householders on supplementary benefit with a child under 5 will all be given the 95p a week standard rate of heating addition if they are not getting it already. Wider coverage of the FIS families is appropriate because, unlike supplementary benefit, the FIS scheme makes no other special provision for extra help with fuel bills. Your Lordships may like to be reminded that the Supplementary Benefits Commission will also be paying the 95p heating addition to supplementary pensioner householders who are over 75, or who have a dependant who is over 75, if they are not already getting it. Looked at as a whole, the package is a mark of the Government's determination to help poorer families and maintain work incentives. The extra £1 a week will benefit around 85,000 families on FIS, and will cost about £5 million in the year up to November, 1980. The extra £1 represents a permanent improvement in the value of FIS: it will not be withdrawn at the end of winter, or have its value whittled down in future up-ratings. I am sure your Lordships will agree that this is an improvement which it is well worth making.
My Lords, I turn now to the draft Social Security (Earnings-Related Addition to Widow's Allowance) (Special Provisions) Regulations 1979, the purpose of which is to correct an anomaly in relation to widow's allowance for certain women widowed on or after 6th January 1980. If a widow's husband had reckon-able earnings as an employed person in the relevant past period, she may also be able to receive an earnings-related addition on top of her widow's allowance. Under the existing statutory provisions, this addition is calculated by reference to
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contributions paid in the relevant period by her husband, which will have been related to his earnings. However, since April 1978 employed people over pension age have not been liable for contributions. An unforeseen effect of this change is that where the husband is over pension age, but not retired, and dies after 5th January 1980, it will no longer be possible to calculate an earnings-related addition for his widow in the normal way by reference to his contributions. From 6th January the relevant year for the calculation of earnings-related addition will he that which started in April 1978.
The draft regulations rectify the position by providing that in these cases the earnings-related addition shall be calculated by reference, not to the husband's contributions but to his actual relevant earnings. These regulations have been submitted to the National Insurance Advisory Committee, whose report, recommending that they should be made, was laid with the regulations. I feel sure that noble Lords will agree that, in future, this small group of widows should be able to receive their benefit which widows in a similar position have been able to receive up to now. I commend these draft regulations to your Lordships.
Finally, I turn to the Social Security (Maximum Additional Component) Amendment Regulations. These regulations correct a defect in the principal regulations—the Social Security (Maximum Additional Component) Regulations 1978. If left uncorrected, this would result in certain widows and widowers who deferred their retirement beyond the end of the current tax year becoming entitled to more benefit than was intended. A person cannot receive more than one retirement pension, but Section 9 of the Pensions Act enables a surviving spouse, in appropriate cases, to receive a higher retirement pension (both basic and earnings-related additional component) by combining the pensions on the contributions of himself and his spouse.
The provisions relating to basic pension cause no problems; the maximum combined pension is the standard flat-rate pension for a single person. In relation to the additional component, Section 9

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of the Pensions Act, together with the principal regulations, provides that a surviving spouse can receive the additional component on his or her own contributions plus additional component on the late spouse's contributions, but only up to a prescribed maximum. It was intended that the prescribed maximum should be what one person could have earned had he paid maximum contributions in all the tax years relevant to the calculation of his additional component. The defect relates to the time when that maximum is to be calculated.
As they stand, the principal regulations would enable a surviving spouse who defers his or her retirement beyond pensionable age to achieve a maximum additional component appropriate to a date up to five years after pensionable age (or the date of death)—several pounds a week more than was intended. These amending regulations correct that defect. Regulation 2(b) of the principal regulations, which provided for the up-rating of maximum additional components, has been deleted as unnecessary. The up-rating provisions of the Pensions Act already provide for this. I am confident that your Lordships will accept the four instruments now before the House and I beg to move the first of them.
Moved, That the draft order, laid before the House on 23rd October, be approved.—(Lord Cullen of Ashbourne.)
8 p.m.
Lord WELLS-PESTELL: My Lords, we are grateful to the noble Lord, Lord Cullen, for moving these regulations and the order and particularly for being so brief and clear at this hour. I do not imagine that there will be any problem over your Lordships approving these regulations but, because of the hour, I am sorry that the noble Lord, Lord Banks, and I did not meet beforehand to arrange some kind of division of labour. I am proposing to deal with only one of them and I have a feeling that he will deal with the rest.
We must face the fact that we cannot look a gift horse in the mouth. Bearing in mind that the Government's tax cuts
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gave the richest 7 per cent. of the people 34 per cent. of the tax cuts and the poorest 10 per cent. of the community only 2 per cent., we should feel grateful for these further crumbs from the Government.
As I understand the position, about 85,000 people who are in receipt of family income supplement will benefit to the extent of £1 a week or less to help them with their heating bills at a cost of about £4½million in a year. As I understand it, the Government are providing something like £162 million in new money. My first question is this. Is the balance to be used to defray the cost of paying the 95 pence heating addition to supplementary benefit households who are over 75 years of age and to those who have a dependant over 75 and to those with a child under the age of five? In other words, where is the balance going? I gather that it will only be paid if they are not already getting a heating allowance.
I find this rather difficult to understand. Surely, all persons receiving supplementary benefit because of the low rate of benefit will be eligible for one of the existing three heating allowances and the 95 pence is not likely to apply in very many cases. If I am right in thinking that, I would ask the noble Lord how many, if any, will be eligible for the 95 pence heating addition and what is the total number who will benefit from the Government's present scheme? I imagine that the total number will be about 400,000 people. If that is so, I would remind the noble Lord that the previous Government's scheme resulted in about 4 million people benefiting, and that nothing like that number will benefit under the present Government's scheme.
The Government in the other place claimed that the scheme was designed to help those most in need. The noble Lord will know that within the last few days the Government have released figures showing that there are something like 200,000 families living below the supplementary benefit level and, on this showing, the Government will be helping only about 85,000 of these. I want to ask: what about the remainder? The Labour Government's schemes were, I concede, a little cumbersome; but the Government did then spend something like £38 million in 1979 in helping poor families with their fuel bills.

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The last point that I want to make is this. I know that the Government have said in another place that the whole purpose of this was to try to restrict it to cover the really needy people who wanted help with their heating bills. This is why they put in the above-75s. But are the Government really doing this? Are they really helping the most vulnerable? As the noble Lord will know, quite recently a very serious survey was done about hypothermia. It shows that over half of those who are vulnerable and at risk so far as hypothermia goes are under the age of 75. While I feel that the scheme is really not meeting the needs of a very large number of people, I accept that it is going to meet the needs of a fair number. I am sorry that it has not been possible for the Government to do something tangible and to spread it over a much larger number of people who are obviously just as much in need.
Lord BANKS: My Lords, I, too, am grateful to the noble Lord, Lord Cullen, for his very clear explanation of these regulations and the order. I think that if the noble Lord, Lord Wells-Pestell, and I had had a meeting before this short debate we might not have found it so easy to agree, because I wanted to say a word about the one that he picked on: the Family Income Supplements (Computation) (No 2) Regulations. Perhaps I can say a brief word about the others before I do so. The Social Security Benefits Up-rating (Amendment) Order is necessary to bring about the situation which we thought had been brought about by the previous order; and we debated the issue at that time. That order, I am sure, is acceptable to the House. It is clear too that the second order is required because a widow's late husband, over 65 and not retired at the time of death, would have no earnings factor because no contributions were payable after 65 and it would not be possible to calculate an earnings-related addition in relation to contributions. As a result, actual earnings are to be used. Again, I am sure that that is a very non-controversial proposal.
As far as The Social Security (Maximum Additional Component) Amendment Regulations are concerned, I imagine that many Members of the House will have come across the rhyme in the days of their youth:
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"Brothers and sisters have I none, But this man's father is my father's son".
They would then have spent many frustrating minutes trying to work out who is talking about whom. I had a similar experience when I first approached this order. I spent some time with a wet towel around my head trying to sort out everything that had happened on all the events of this remarkable day when the person specified in line 5 reaches pensionable age, retires and dies and that person's spouse, if he or she also retires on that day, becomes, but for the double entitlement rule, entitled to two pensions. A very full day indeed for all concerned. I came to the conclusion in the long run that it does do what the noble Lord says that it does.
But I am left with another small question. Ought not Paragraph 2(a) to begin "he or she"? And in 2(b), ought it not to read "he or she had had an earnings factor"? I ask this because "he or she" is used with reference to the surviving spouse at line 12. If the surviving spouse can be male or female, it follows that the deceased spouse can be male or female, as well. I do not think that the support of the House for that particular regulation will depend on the noble Lord's answer to that question.
I should like to say a word about the Family Income Supplements (Computation) (No. 2) Regulations. Like the noble Lord, Lord Wells-Pestell, I welcome the £1 a week increase which these regulations provide for all those on family incomes supplement. It is, as the noble Lord explained, only one-half of the Government's plan to help the poorest with their fuel costs and it must be judged in that context. The other half is the provision of the 95p heating addition to be paid automatically to those families with children under 5 and to people over 75. The two together replace the electricity discount scheme. As the noble Lord, Lord Wells-Pestell, said, that scheme was cumbersome. It was not ideal and was restricted to one fuel; but it helped 3 million people at a cost of £38 million, as the noble Lord, Lord Wells-Pestell explained. Therefore, there has been a substantial cut in financial help with fuel bills, from £38 million to £16½ million and a substantial cut in the number of

1079
people helped from 3 million to 345,000. Again, as the noble Lord, Lord Wells-Pestell, pointed out, many now eligible for supplementary benefit heating addition automatically under this new provision are already getting it, since more than half of the supplementary benefit beneficiaries are already receiving a heating addition.
However, those who are helped are helped on average more substantially, approximately £50 per year per head on average as opposed to £7·50p. In this respect, those on family income supplement are particularly helped. Under the old scheme, if one had an electricity bill of £40 and was receiving supplementary benefit at the lowest rate of heating addition, one received £54·20p per annum. If one received family income supplement, one only received £10. That will now be increased to £52 for most people on family income supplement, and that undoubtedly is good.
But what about the person on rent or rate rebate who received £5 before and now gets nothing? Those who were included before and are now left out must total about 2½ million, and they include pensioners on rent and rate rebates (because they are not on supplementary benefit) and pensioners aged between 65 and 75 who will not get any automatic payment, although of course they will be able to claim. But they are a group very vulnerable to hypothermia as the noble Lord, Lord Wells-Pestell, said. There are families with children over five on supplementary benefit. They may claim heating addition but they will not get it automatically as the people now on family income supplement in similar circumstances will. I am concerned that the range of beneficiaries is not wide enough. I am concerned that the cut in the amount of money available from £38 million to £16½ million should be so drastic. It is a cut of 56 per cent.
If the Government had tackled the problem through the benefit system but with a wider range of beneficiaries on similar lines as they have suggested but on a wider range, and with more money available—on the scale provided last year—then there would be less criticism of their proposals than there is. Though
1080
I say they should use the benefit system, I have a reservation about the use of family income supplement because of its effect on the poverty trap being means-tested benefit, and because of the take-up which is 75 per cent.
Under the tax credit scheme, which we on these Benches would like to see established, it would be possible to have either a fuel credit for a limited range of beneficiaries but wider than the Government now propose, or an element of fuel costs included in the personal credits, which would be paid to everyone. This would be to provide, in one way or another, a fuel benefit rather like child benefit; and like child benefit it would not be means-tested and since the object of a tax credit scheme is to get away from means tests and lift the great number of people off supplementary benefit who are on it at the moment, that would be an important point. Like the child benefit, it would help the poorest most.
8.15 p.m.
Lord CULLEN of ASHBOURNE: My Lords, I am grateful to both noble Lords for what they have said. There has been some criticism but, on the whole, acceptance of the regulations. The noble Lord, Lord Wells-Pestell, asked me who really gets this benefit, apart from the 85,000 families on FIS. He is quite right: the cost for those 85,000 families is about £5 million a year. We estimate that about 110,000 pensioners will receive it, also at a cost of about £5 million, and 150,000 beneficiaries with young children will benefit. That will cost about £6½ million. That is how the balance is made up.
So far as the criticism of the FIS scheme is concerned, it does take the place of the previous Government's electricity discount scheme, which as the noble Lord, Lord Banks, said, did run into a fair amount of criticism. Five pounds was given to a lot of people who in point of fact did not deserve to have it—children living at home over a certain age who did not have any fuel bills to pay, and so on. I think that everybody realises that that scheme, although costly, was spread very thinly and did not altogether go to the most needy people. Again, as the noble Lord, Lord Banks, said, the average receipt

1081
was about £7.50p. We have a different scheme which is to give about £50 to the most needy people. There are always lots of needy people, and, unfortunately, in these days, we cannot give all we should like to give to all the people who would like to have it, and who perhaps really do need it.
There is another criticism of that other scheme, and that is that it cost £4 million to administer. Our scheme, which, admittedly, only comes to £16 million or £17 million as opposed to £38 million, will only cost £400,000. That I think is undoubtedly in its favour.
The noble Lord, Lord Banks, asked perhaps a slightly jocular question about "he or she". There is probably a good deal in what the noble Lord has said. "Person" seems quite a reasonable word. It applies to "he or she", and I think that the draftsman probably found it difficult to think of a better word than "person". It may well be that "he or she" would have been better. I doubt if the noble Lord will wish——
Lord BANKS: My Lords, very briefly, it was not that I was objecting to the word "person", but the text just said "he" in the two places to which I referred. I felt it should say "he or she" because it was, as I understand it, referring to a man or a woman. Further down in the order that distinction is made.
Lord CULLEN of ASHBOURNE: My Lords, there is certainly substance in that, but I doubt if the noble Lord would wish to have it changed. My Lords, I think I have answered most of the questions that I have been asked.
On Question, Motion agreed to.

FAMILY INCOME SUPPLEMENTS (COMPUTATION) (NO. 2) REGULATIONS 1979
Lord CULLEN of ASHBOURNE: My Lords, I beg to move.
Moved, That the draft regulations laid before the House on 23rd October be approved.—(Lord Cullen of Ashbourne.)
On Question, Motion agreed to.

SOCIAL SECURITY (EARNINGS-RELATED ADDITION TO WIDOW'S ALLOWANCE) (SPECIAL PROVISIONS) REGULATIONS 1979
Lord CULLEN of ASHBOURNE: My Lords, I beg to move.
Moved, That the draft regulations laid before the House on 23rd October be approved.—Lord Cullen of Ashbourne.)
On Question, Motion agreed to.

SOCIAL SECURITY (MAXIMUM ADDITIONAL COMPONENT) AMENDMENT REGULATIONS 1979
Lord CULLEN of ASHBOURNE: My Lords, I beg to move.
Moved, That the draft regulations laid before the House on 23rd October he approved.—(Lord Cullen of Ashbourne.)
On Question, Motion agreed to.