Lords Sitting of 18 March 1980

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

ELECTRICITY: ESTIMATED DEMAND IN 1986–87
Lord AVEBURY: My Lords, I beg leave to ask the first Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what estimates they have received from the electricity supply authorities of maximum simultaneous demand in 1986–87, and how this compares with previous estimates for that year.
The MINISTER of STATE, DEPARTMENT of EMPLOYMENT (The Earl of Gowrie): My Lords, the Electricity Council informed Her Majesty's Government recently that they currently estimate that simultaneous maximum demand in England and Wales in 1986–87 under average cold spell conditions will be 48·5 gigawatts. This compares with a previous estimate of 51·1 gigawatts adopted by the council in 1979. It might be helpful to the House if I explained that a gigawatt is 1 million kilowatts, and 1 million kilowatts is 1 million times a one-bar electric fire.
Lord AVEBURY: My Lords, I thank the Minister for that reply. Is it not true that in nearly every year since 1970 the electricity authorities have had to scale down their previous forward estimates of maximum simultaneous demand; and would the noble Earl say what implications this has for the studies which are now being made by the Government of the future need for a fast reactor, which of course arises only if a large number of thermal reactor stations have been constructed first, thus using up the available supplies of uranium? Is it not a fact, my Lords, that a scaling down of the electricity authorities' future plans for
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thermal reactors would delay the need for a fast reactor until the indefinite future?
The Earl of GOWRIE: My Lords, as I said in my original Answer, we are, of course, dealing here with estimates, and estimates can be wrong. It is true that the tendency has been to over-estimate demand recently, but in the 1950s and early 'sixties there was a record of underestimating demand. It is the Government's view that there would still be a leading role for nuclear power in electricity generation; and, of course, the nature of electricity demand would not be the only factor determining how one generated electricity.
Lord AVEBURY: But, my Lords, is it not a fact that in the 1950s and 1960s world oil prices were constant or declining in real terms, whereas from now onwards up to the end of the century, so far as we can see, even on the estimates of the Department of Energy, there will be a steady increase in the price of other kinds of fuel, perhaps amounting to a doubling or a trebling by the end of the century? So the decline in the forward estimates of maximum simultaneous demand would be expected, would they not, to continue as far ahead as the eye can see?
The Earl of GOWRIE: My Lords, I still think it is rather difficult to predict the future with any certainty. Nevertheless, the implications of the new load forecast will be looked at most carefully by the Government.

APPLICATIONS FOR CITIZENSHIP 1970–1979
2.40 p.m.
Lord AVEBURY: My Lords, I beg leave to ask the second Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how many applications for citizenship of the United Kingdom and Colonies were made and granted respectively in each of the years since 1970, and what was the number of staff in the Home Office engaged in processing those applications, and the number of applications outstanding, on 30th June in each of the years in question.
The PARLIAMENTARY UNDERSECRETARY of STATE, HOME OFFICE (Lord BELSTEAD): My Lords, as the information requested has to be in the form of a statistical table, I shall, with permission, circulate it in the Official Report.
Lord AVEBURY: My Lords, I am most grateful to the noble Lord for circulating this information. Is he aware that grave offence has been caused to many people who are anxious about their nationality applications by the circulation of a duplicated letter, Form N.427, saying that they are not to make inquiries about their own cases except in the most exceptional circumstances, and threatening them that, if they do so, consideration of their cases will be delayed? Is the noble Lord not anxious because Government business has fallen into such a disarray that it is impossible to reply courteously to normal letters from members of the public?
Lord BELSTEAD: My Lords, I was not aware of that, and I shall certainly look into it.
Lord DERWENT: My Lords, can one have a supplementary question to an original Question when the original Question has not been answered?
Following is the information referred to:

Applications received by 31 December

Applications granted by 31 December

Number of staff in post at 30 June

Number of applications outstanding on 30 June

1970

38,275

30,392

94

5,542

1971

45,826

34,610

96

9,542

1972

43,326

39,965

126

11,555

1973

86,843

41,575

177

18,480

1974

85,442

65,728

269

52,828

1975

39,141

60,587

292

38,240

1976

34,915

31,263

216

26,538

1977

32,391

23,912

184

26,462

1978

38,010

24,924

189

33,067

1979

48,578

24,586

186

35,571

Explanatory Notes:
(1) Applications received in any one year may not be dealt with in that year. The number granted in any one year and the number outstanding midway through that year or at the end of that year do not necessarily correlate with the number received in that year.
(2) The increase in the number of applications received in the years 1971–1974 and in the numbers granted in the years 1972–1975, coupled with the rapid growth from 1973 in the number of applications outstanding, was largely due to increased numbers of applications from citizens of Pakistan under the provisions of the Pakistan Act 1973 and the modification of provisions for the registration of Commonwealth Citizens in the Immigration Act 1971, which came into force in 1973.
(3) A number of High Court judgments in 1977 on illegal entrants and overstayers complicated nationality work and have slowed down the rate of processing applications.
(4) From 1978 the number of applications received began to increase and by the end of 1979 was over 50 per cent. higher than in 1977. This has coincided with a period of strict restraint on the growth of civil service manpower and it has not been possible to provide comparable increases in
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staff to deal with the increased work. One hundred and ninety-five staff are currently employed, and it is hoped to bring this number up to 217.
(5) From 1974 to 1976 additional staff were added temporarily to the nationality division to deal with the large number of applications for citizenship made under the provisions of the Pakistan Act 1973.

ARMY RECRUITING: ORGANISATION AND COST
2.41 p.m.
Lord CAMPBELL of CROY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how much was spent on staff and activities directed to recruiting for the Army in the last year for which figures are available; and whether the Government gave any assistance in the preparation of the television programme"Gone for a Solidier"broadcast on 9th March.
Viscount LONG: My Lords, the estimated cost of the Army Recruiting Organisation was £12.32 million for the financial year 1978–79. Facilities were made available to the makers of the TV programme,"Gone for a Soldier ", to film Army recruiting and training activities.
Lord CAMPBELL of CROY: My Lords, I thank my noble friend for his reply. I recognise that neither he nor the Government were responsible for the content of the programme, but is he aware that the programme's effect was damaging to the reputation of the Army and to its difficult role in Northern Ireland? Is it not an extraordinary paradox that the general public should have paid, through their licence fees, for a programme which largely nullified the recruiting effort which the general public had also paid for out of taxation?
Viscount LONG: My Lords, I am most grateful to my noble friend for not blaming the Government or the authorities for what happened, and perhaps I may give a little more information to my noble friend and the House about what happened. The producer of the programme requested assistance as long ago as December 1977, when the Ministry of Defence was given a synthesis of the

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programme. It was not until the preview that the department became aware of the editorial slant. The Ministry of Defence requested cuts in sequences which, in their view, were biased and unrepresentative, but the request was denied. Representations have been made at a high level to the BBC, and in another place the Under-Secretary of State for the Army, answering Questions on 11th March, gave the Government's general reaction to it.
The Minister of Defence has no wish to reserve editorial rights over programmes of this type, other than on grounds of national security, and would not wish to place more restrictions than are absolutely essential on the media's access to the armed forces. In the light of the programme, it is possible that assistance to the Press may be granted more selectively in the future.
I should also like to mention that even though we have had this biased programme levelled against our soldiers, the current recruiting performance has been very encouraging. I should like to explain to the House how pleasing it has become to the Ministry of Defence. There has been a marked upturn in recruiting since we restored service pay to its appropriate level. From April 1979 to February of this year, Army recruiting was 20 per cent. higher than in the same period last year. It is vital that this improvement be sustained. The targets next year are higher and have to make up for the high outflow and the shortfalls in recruiting over the past two or three years. Whatever happened during this programme, recruiting will continue.
Lord SHINWELL: My Lords, is the noble Lord aware that history, however damaging and deplorable, is acceptable as long as we escape from it? Do not the recruiting figures indicate that the programme, far from being deplorable, was historical and factual and is unlikely to do any damage; and that the conditions now prevailing in Her Majesty's Forces are on the whole satisfactory compared with what they have been in the past?
Viscount LONG: My Lords, I am most grateful for what the noble Lord has said. Indeed, morale in the armed forces is very much higher and, as I
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have already said, recruitment is—as the noble Lord, and, I am sure, all of us, would like—going along steadily.
Lord TRANMIRE: Is my noble friend aware that some of the incidents portrayed relating to action by our forces both in Northern Ireland and in Cyprus were extremely inaccurate and disappointed very many ex-servicemen who saw the programme and who had been in action in Northern Ireland and in Cyprus? May that be conveyed to the chairman of the BBC?
Viscount LONG: I am grateful to my noble friend. Strong words have been already written in letters to the BBC. The next time round they will find it probably a little more difficult to be able to get through such a situation. I should like to say at this stage that our troops have done a wonderful job in monitoring the Rhodesian elections. This, of course, was not brought out in the programme, for the programme was too early for it. Our troops certainly do a good job; and it was unfortunate that the producer got hold of the wrong information.
Lord TAYLOR of BLACKBURN: My Lords, would the noble Lord not agree that the Government's policy, because it is creating unemployment, encourages people to go into the forces?
Viscount LONG: My Lords, the forces have always been interested in those who would like to enlist. It is not a matter of unemployment or what the noble Lord suggested about Government policy.
The Earl of CATHCART: My Lords, would my noble friend not suggest to the BBC, funded as it is from public funds, that they might balance the record by showing in a similar manner the wonderful service done by the British Army in Rhodesia and also, over a long period, in Northern Ireland—something no Army in the world could have done with such good humour and discipline?
Viscount LONG: I am grateful to my noble friend for that supplementary question. There were some 54 different programmes of different sorts last year which have shown that our forces do a good job in one way or another. These were television programmes or write-ups in magazines or the Press.
Lord WIGG: My Lords, when talking about recruiting, will the noble Lord bear in mind two factors: first, that unemployment has a direct effect upon recruiting; secondly, that whenever there is an increase in pay there is also a sharp rise in recruiting; and that very often the curve rises and falls? What the Ministry of Defence need to look at is the average recruiting figures over a period in relation to the number of men that it is possible to recruit; that is to say, the number reaching the age of eligibility.
Will the noble Lord also bear in mind that I have at least one qualification to speak on this subject?—that I am the only Member of this House who has served on a regular engagement, as did my forbears. Would he further bear in mind that the picture presented by the BBC, while it tended to be a caricature, was not all that historically incorrect? The Regular Army was never a bed of roses; but as one who went through the mill for a period of some 30 years, I would do it all over again if I could, for I got more out of it than I put in.
Viscount LONG: My Lords, I wonder whether I would do it all over again. I am glad that the noble Lord wants to recruit himself back into the Army. I am sure that noble Lords will go all the way with him on that.

WORLD ADMINISTRATIVE RADIO CONFERENCE
2.49 p.m.
Lord MORRIS: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will make a Statement on the results of the World Administrative Radio Conference as they affect the United Kingdom.
Lord BELSTEAD: My Lords, the decisions of the World Administrative Radio Conference so far as they may
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affect the United Kingdom are now being studied very carefully. But already it is clear that, at least in the short term, they will have limited effects on the great majority of our telecommunications. To give two examples where an effect can be foreseen: some re-planning of certain important land mobile services will be necessary, while the new flexibility available for the long term use of certain broadcasting bands will have to be explored. In other cases, however, the precise effects on our services will not be clear until the further conferences foreseen by the WRAC have been held. Already, we are laying the foundation for the related preparatory work.
Lord MORRIS: My Lords, may I thank my noble friend for that helpful and informative reply? May I ask him whether he is aware that many who know this somewhat esoteric subject have good reason for admiration of, and gratitude to, the United Kingdom representatives who maintained and secured this country's best interests during the negotiations in Geneva?
Lord BELSTEAD: My Lords, I am grateful to my noble friend for those kind words. I will certainly draw my right honourable friend's attention to them.
Lord WALLACE of COSLANY: My Lords, is the noble Lord aware that the Radio Society of Great Britain, representing radio amateurs, considered the results in their field as very satisfactory? Is he further aware that the society is indebted to the Home Office delegation for their advice and co-operation? The Home Office team is indeed to be congratulated on its efficient and effective work, which deserves the highest praise.
Lord BELSTEAD: My Lords, I am most grateful to the noble Lord for the remarks which he has made from his side of the House. It was a very long conference and made very great demands on the United Kingdom team who went to Geneva. I will also draw my right honourable friend's attention to the words which the noble Lord has been good enough to speak.

EDUCATION (No. 2) BILL: SCHOOL TRANSPORT
Lord DENHAM: My Lords, with the leave of the House, my noble friend Lady Young will be making a Statement on school transport similar to a Statement being made in another place by my right honourable and learned friend the Secretary of State for Education and Science. This will be at a convenient moment after 3.30 p.m.
It may also be for the convenience of your Lordships to know that, as the consideration of Commons amendments on the Companies Bill has been postponed until Thursday of next week, 27th March, dinner will not be available this evening.

BUSINESS OF THE HOUSE
The MINISTER of STATE, MINISTRY of AGRICULTURE, FISHERIES and FOOD (Earl Ferrers): My Lords, I beg to move the Motion which stands in my name on the Order Paper.
Moved, That Standing Order No. 43 (No two stages of a Bill to be taken on one day) be dispensed with for the purpose of taking the Consolidated Fund (No. 2) Bill through all its stages this day and the National Health Service (Invalid Direction) Bill through its remaining stages on Thursday the 20th of March.—(Earl Ferrers.)
On Question, Motion agreed to.

CONSOLIDATED FUND (No. 2) BILL
On Question, Bill read 2a: Committee negatived.
Then, Standing Order No. 43 having been dispensed with, pursuant to Resolution, Bill read 3a and passed.

RESERVE FORCES BILL [H.L.]
The LORD CHANCELLOR (Lord Hailsham of Saint Marylebone): I beg to move that the Commons amendments be now considered.
Moved, That the Commons amendments be now considered.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
[References are to [Bill 131] as first printed for the Commons.]
[Nos. 1–4]
Clause 144, page 69, line 7, leave out 'in Northern Ireland or lsewwere'
Clause 144, page 69, line 8, leave out '£50
and insert the statutory maximum'
Clause 144, page 69, line 13, after ' elsewhere ',
insert in the United Kingdom '
Clause 144, page 69, line 15, at end insert—
' (2) In subsection (1) above"the statutory maximum ", in relation to a fine on summary conviction, means—
(a) in England and Wales, the prescribed sum within the meaning of section 28 of the Criminal Law Act 1977 (at the passing of this Act £1,000);
(b) in Scotland, the prescribed sum within the meaning of section 289B of the Criminal Procedure (Scotland) Act 1975 (at the passing of this Act £1,000); and
(c) in Northern Ireland, £50.'
The LORD CHANCELLOR: My Lords, with the leave of the House, I should like to speak to all the amendments together and to put the Question as a single Question. I beg to move that the House doth agree with the Commons in their amendments. Amendments Nos. 1, 2 and 4 are all connected, and Amendment No. 3 is a minor drafting amendment. Amendments Nos. 1 and 2 bring Clause 144 of the Bill (which deals with penalties for assisting desertion) into line with the existing law regarding maximum fines, contained in Section 28 of the Criminal Law Act 1977 and Section 289B of the Criminal Procedure (Scotland) Act 1975. These two sections increase within their respective jurisdictions the maximum fine which may be imposed in Great Britain on summary conviction, and provide that such maximum may be altered by order on a change in the value of money.
Amendment No. 4 defines the phrase"the statutory maximum"as used in Amendment No. 2. The difference in the level of fines in Great Britain, on the one hand, and Northern Ireland, on the other, reproduces the existing law. These three amendments correct an oversight in the drafting of the Bill, and make no

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changes in the substantive law. Amendment No. 3 is a minor drafting amendment, which clarifies the word"elsewhere"where it appears in its context. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(The Lord Chancellor.)
On Question, Motion agreed to.

SOUTHERN RHODESIA (CONSTITUTION OF ZIMBABWE) (ELECTIONS AND APPOINTMENTS) (AMENDMENT) ORDER 1980
2.56 p.m.
Lord TREFGARNE Lord TREFGARNE rose to move, That the order laid before the House on 26th February, be approved. The noble Lord said: My Lords, I beg to move that the Southern Rhodesia (Constitution of Zimbabwe) (Elections and Appointments) (Amendment) Order 1980, a copy of which was laid before the House on 26th February, be approved. I will not detain your Lordships for long in introducing this order. Its main purpose is to simplify the procedure for electing a President of Zimbabwe.
The independence constitution provides that the President shall be elected by an electoral college comprising the members of the Senate and the House of Assembly. In normal circumstances, the electoral college would be presided over by either the Speaker of the House of Assembly or the President of the Senate. However, in the pre-independence period, this would have necessitated prior meetings of either the House of Assembly or the Senate solely to elect a presiding officer. Neither body would meet for any other purpose before independence since the Governor has full legislative power while he remains in Rhodesia.
It was felt therefore that, rather than summon a special meeting of one or other of the bodies to go through what might have been a lengthy and possibly controversial process of electing a presiding officer before the election of a President, it would be simpler and more in keeping with the spirit of the interim period to allow the Governor to appoint a presiding
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officer for the electoral college only. The post is concerned purely with the technical arrangements for the election of the President. It will be for the House of Assembly and the Senate to make their own arrangements for the election of their presiding officers after independence.
I should tell your Lordships, in all honesty, that we were particularly anxious to simplify matters in this way at a time when we envisaged that the period between elections and independence would be very brief. However, as your Lordships may know, Mr. Mugabe has urged the Governor to stay on rather longer than we originally envisaged and, at his request, independence has been postponed until 18th April. No objection has been raised by Mr. Mugabe or any of the other parties to the simplified procedure for which this order provides. The Governor has indicated that he prefers these revised arrangements, notwithstanding the later date for independence. I am confident, therefore, that the House will be ready to agree to a proposal which is acceptable to the parties themselves.
The elections for the Senate are to be held tomorrow (19th March) and the election of a President-elect quite soon thereafter. The purpose for which this amending order was made will therefore, very shortly, have been served. In future Presidential elections, the normal provisions of the constitution will of course apply. The second purpose of the order is to ensure that no steps which the Governor thought it necessary to take to ensure that the elections for the House of Assembly were free and fair could be held to be in contravention of the provisions of the constitution.
As was widely reported, the Governor was seriously concerned at one stage of the election campaign by the level of political intimidation, which came from a number of quarters, and the threat which this posed to the holding of free and fair elections. For this reason, he took powers to impose limited penalties on any party whose activities were not consistent with the undertakings given at Lancaster House; and to suspend elections in certain areas if intimidation appeared to make it impossible for free elections to be held in them.
In the event, it was not necessary for the Governor to make any use of these powers after the amending order was made. The provision of them was intended to deal with a contingency which, thankfully, did not arise. The British Government, fortified by the opinions of nearly all the international observers, including those from your Lordships' House, accept the result of the election as representing the considered view of the Rhodesian people.
There is little more to be said. Apart from the remaining constitutional formalities, the main task of the final weeks of the Governor's administration will be to provide advice and support to Mr. Mugabe while he and his team of Ministers settle into their offices. The Government will be providing assistance and guidance in a number of fields where Mr. Mugabe has requested our help.
It might, however, be helpful if I were to list briefly the remaining Orders in Council which will be necessary to discharge the task of bringing Zimbabwe to independence. An order will be laid before Her Majesty tomorrow to make transitional provisions consequent upon the introduction of the independence constitution. This is standard practice when any new State is granted independence. A further order will be laid before Her Majesty at the same time, setting the date of independence as 18th April. Finally, a draft order will shortly be laid before Parliament, making amendments to the Zimbabwe Act and other United Kingdom laws consequent upon Zimbabwe's joining the Commonwealth.
The order before us today is among the last of the steps we shall take before Rhodesia joins the world community and the Commonwealth as the free and independent Zimbabwe. It is intended to facilitate that process, and I hope your Lordships will approve it. I beg to move.
Moved, That the order laid before the House on 26th February, be approved.—
(Lord Trefgarne.)
3.3 p.m.
Lord GORONWY-ROBERTS: My Lords, I wish to give an enthusiastic
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welcome to this order and to the manner in which the noble Lord the Minister presented it. It gives us all great pleasure to assist once more in the consensus of welcome to all that is happening in Zimbabwe in conformity with the practices of democracy and constitutionality.
This order facilitates two of the quite final steps towards the establishment of the new independent sovereign State of Zimbabwe in the world community and in the Commonwealth. While there may be occasions in the future when we shall, in a friendly way, consider the way things are going in the first few months of the history of the new State, this is not the time to extend the debate. The whole House is delighted that matters have gone the way they have. I am sure we all agree with this order, which makes regular and orderly the appointment of presiding officers for the House of Assembly and the Senate and also the appointment by due process of the President: these are indeed historic happenings.
I entirely agree also that the second purpose of the order deserves the welcome and support of the entire House, namely, in a somewhat retrospective way, to safeguard the position of the Governor, who needed powers to intervene if the elections, for one reason or another, did not prove to be as free and fair as this Parliament had enjoined that they should be. Happily, those powers were not necessary and it will be within the recollection of the House that, from this box on behalf of Her Majesty's Opposition, I intimated that certain aspects of those powers, especially those relating to freedom of electoral activity, would best be honoured in the breach, that is by the Government, than in the observance. The fact that they were within the power of the Government we hopefully thought might be sufficient. I am delighted to hear from the lips of the Minister that that was indeed the position.
With those few words, extending a welcome as well as official approval for this order, I hope the House will not hold up this instrument any further. It is desired and needed by the new Prime Minister and his Government, and indeed it suits the convenience as well as the necessities of the moment in Rhodesia and also in this country.
3.6 p.m.
Lord UNDERHILL: My Lords, may I say just a few words on this order, as it arises from the elections and I was privileged to be one of the ten Members who went out to observe the elections over a period of three weeks. Your Lordships will not wish to have a travelogue from me, but I think it ought to be placed on record how we arrived at the statement which was made by the delegation before the actual voting took place.
During our visit we met six of the leaders of the parties, including Mr. Robert Mugabe, whom we met three times and who was consistent in his views on each of the three times we met him. We met all the officers and officials whom wewished to see. We talked on a number of occasions with the elections supervisor, Sir John Boynton. We met all his provincial election supervisors and quite a number of district election supervisors, who were also appointed by Sir John Boynton. We attended also the election commission, which was a useful instrument for enabling representatives of the parties to discuss various arrangements for the elections and to be satisfied about them, including the ordinance to which the noble Lord has referred.
Prior to the three days of polling we had opportunities to travel throughout the country into tribal trust lands, protected villages and townships, and we were freely able to talk to a very large number of the persons who would be voting. We also had the opportunity to attend a number of rallies and two assembly points: I shall not refer to them now as they do not refer to the actual elections observance.
During the three days of polling we were able to visit quite a number of polling stations throughout the country, to observe the procedures and to attend subsequently verification counts and the counts themselves. Your parliamentary delegation was the first to issue a statement, and that was issued deliberately as a unanimous view some days before the actual voting took place.
As the noble Lord, Lord Trefgarne, has mentioned, there was concern about certain incidents and the delegation themselves were concerned about them. Those developments provoked a spate of allega-
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tions and counter-allegations of intimidation and partiality, but it has to be remembered that these elections were taking place after a long and bitter war, which made it extremely difficult to apply the criteria of United Kingdom elections. Also, those elections were carried through in a state of martial law which was still in existence. Therefore the members of your delegation addressed themselves to the question as to whether or not the situation was such that it had become impossible for the elections to reflect the general wish of the people of Zimbabwe and, despite the various incidents to which I have referred, the delegation were unanimous in expressing their views on three particular points.
These points were: first, that the organisation and mechanics of the poll had been efficiently and fairly carried out; secondly, that the official literature, numerous broadcasts and other means had enabled the message about the secrecy of the poll to be well understood, and we were able to question quite a large number of people as to whether that point had gone home. Thirdly, the large provincial electoral and party list system minimised any possible effect of local incidents of intimidation. Therefore we did not use the phrase"free and fair elections ", which we thought had become rather a cliché We concluded that the election results would fairly reflect the general wish of the Zimbabwean electorate. Our statement was followed by a similar statement on behalf of the independent observers, who were appointed by the United Kingdom Government, by the British Commonwealth observers team and by numerous other representatives as well.
Also, the election commissioner, Sir John Boynton, in his report—all these reports were issued either before voting or, in the case of Sir John Boynton, after voting but before counting of the votes—concluded, notwithstanding the distortion of voting in certain areas, that in the Rhodesian context the overall result of the elections would broadly reflect the wishes of the people. It must be reported that the numbers of those who voted were 50 per cent. Up—that is, nearly 900,000 extra voters—on April, 1979, and that, despite this huge increase in votes, the number of spoiled papers fell from 66,000 to 53,000, which indicates how the procedure of the election had got across.

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I—and I am certain that this will be endorsed by all members of the delegation —would wish to place on record our appreciation of the splendid work of Sir John Boynton, the election commissioner, and of the provincial and district supervisors with whom he worked and with whom we had many discussions. May I also say that the decision to bring in the 500 British policemen was, frankly, an imaginative brainwave. We spoke to many of these people out in the protected villages and elsewhere, and they were carrying on their duties in the calm and sensible way that we would expect the British"bobby"to do.
Finally, never before has an election been so much under the eyes of the world. There were the hundreds of pressmen and media men— the briefing conferences every evening were simply packed to capacity—and also the observers who, I believe, numbered something like 160. Never before have so many people roamed over a country looking at an election, and their views have all somewhat corresponded. The manner in which these elections were carried out, despite all the difficulties, is a great testimony to British administration and will have some considerable effect not only on the future of Zimbabwe, but, maybe, in other parts of Africa as well.
3.12 p.m.
Lord HATCH of LUSBY: My Lords, I endorse everything that my noble friend Lord Underhill has said, particularly in regard to the excellent, imaginative and sympathetic manner in which the officers conducted this election right from early in January. The noble Lord, Lord Trefgarne, introduced this order in a non-controversial way, and indeed it is a non-controversial order, so I do not propose to question anything in it. But may I take this opportunity of asking him two questions?
First, according to the order, and also according, to the noble Lord's introduction, neither the Assembly nor the Senate will meet before the date of independence. Could he explain to us what is the position of the Prime Minister—or the Prime Minister-elect, as I suppose one should call him—and the other Ministers in regard to their adminstrative and ministerial
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duties, between now and independence day? Secondly, noble Lords will recall that we on this side of the House pressed the Government very hard on two occasions when we were debating first, the Southern Rhodesia Act, and then, secondly, the Zimbabwe Act before the Christmas recess, to make them subject to Affirmative Resolutions. The Government resisted that pressure and, as I understand it—and I hope that I shall be corrected if I am wrong—the Government now have power to grant independence to the new State of Zimbabwe simply by Order in Council, which could, in fact, be laid during the recess without ever coming back to the two Houses of our Parliament.
I suggest that, if that is so, the Government might very well offer a self-denying ordinance, because it would, I believe, be regarded not only in this country, but certainly in Africa and in other parts of the world, as a certain dereliction of our responsibilities if there were not an opportunity for both Houses of Parliament to debate the issue of independence before independence day. This has normally been done in the past, though not always.
There are many issues to be raised here and many lessons to be learned. It has always been the claim of British Governments of both parties that they had responsibility for Southern Rhodesia, then for Rhodesia and now for the granting of independence to Zimbabwe. So I humbly submit to the Government that it would be very well worth while if they were to arrange for debates to be held in both Houses before independence day, so that it can be seen that it is this Parliament which is granting independence to Zimbabwe.
3.16 p.m.
Lord TREFGARNE: My Lords, I am greatly obliged for the attitude of every noble Lord who has spoken with regard to this order. I think it is only the noble Lord, Lord Hatch, who has actually put points to me which I shall deal with. First, as to the position of Ministers-elect who are, as I said, now settling into their offices in Rhodesia, executive power in Rhodesia will remain in the hands of the Governor until the date of independence. But, of course, he will be working in the closest consultation with the Prime Minister-elect and the Ministers-elect between

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now and the date of independence, and the new Ministers will, of course, take office and take over executive power on the date of independence itself.
As for the question of a debate in one or both Houses before independence, we explored these matters very fully when the Zimbabwe Act, as it is now, went through Parliament just before Christmas. The executive act, the Parliamentary approval for the independence of Zimbabwe, was contained in that Act which your Lordships saw fit to approve, and the order to which referred will set only the date for independence. It will not affect the fact of independence on which, as I have said, Parliament has already expressed an opinion. It is clear—and I think that the noble Lord, Lord Goronwy-Roberts, appreciated this—that Rhodesia is now poised to take its place in the world community. At the risk of sounding unduly smug, may I suggest to your Lordships that the people of Rhodesia, soon to be Zimbabwe, owe a debt to my noble friend Lord Carrington and to my noble friend Lord Soames, which they will not soon nor easily repay.
Baroness GAITSKELL: My Lords, may I put this point to the Minister? In this year of triumph over Rhodesia, I have just discovered that there was no delegate from this country to the Human Rights Committee. I must say that I would have given I do not know what to have been there on the day that Rhodesia's independence was declared. There was no British delegate.
Lord TREFGARNE: My Lords, I do not think that the noble Baroness would expect me to comment on that in this context. But I take note of what the noble Baroness has said.
On Question, Motion agreed to.

NATIONAL HEALTH SERVICE (INVALID DIRECTION) BILL
3.20 p.m.
The LORD CHANCELLOR: My Lords, I beg to move that the Bill be read a second time. My noble friend Lord Cullen of Ashbourne ordinarily speaks, and
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speaks with distinction, in this House for the Department of Health and Social Security, but I hope that the decision that the one easily available Member of the Cabinet should move the Bill will meet with the approval of the House. Validation Bills do not come before us every day of the week, and I think that I owe it both to the House and to my colleagues to ensure that the Second Reading at least of the Bill is moved in this way.
In this process there is both an advantage and a disadvantage. The disadvantage is that I am not as well briefed on the affairs of the Department as is my noble friend, but my noble friend, Lord Sandys, is on the Government Front Bench, and I am sure will do what is necessary to repair the defect. On the other hand, in some ways there is something of an advantage, because this House is not a mirror image of the other place but has its own constitutional function to perform. Therefore, I hope that it will not follow the other place into debating some of the details which Members of another place felt it necessary to discuss. I refer to the course of events prior to those which made the Bill necessary, and the cognate problems of the divergent interests between say, Kent and Sussex, on the one hand, and Lewisham, South-wark and Lambeth and other London boroughs on the other—matters which occupied so much of the time of the other place. Nor, I think, can the Government properly indulge in hubris on the one hand, nor the Opposition in Schadenfreude on the other We have all had our problems in the past, and no doubt we shall all have them again. We face a concrete situation and must deal with it as practical men and women of affairs.
Fortunately, the Bill is mercifully short and requires little technical explanation. It arises from a decision by Mr. Justice Woolf in the Queen's Bench Division of the High Court on 25th February last. That decision was delivered on the application of the three London boroughs of Lambeth, Southwark and Lewisham, which together comprise an Area Health Authority (Teaching) under the structure of the National Health Service as it was reorganised by the National Health Service Reorganisation Act, 1973, now consolidated with other statutes in the National Health Service Act 1977. Any references

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I make in my remarks to the numbers of sections relate to the consolidated legislation.
The House will recall that under that structure there are, at the base of the pyramid, a series of area health authorities, supervised and administered by a smaller number of larger regional health authorities, and, at the apex of the pyramid, the Secretary of State for Health and Social Services. An area health authority (teaching) of which the applicant boroughs are an example is one which, in addition to the ordinary functions of an area health authority, contains one or more universities with substantial facilities for undergraduate or postgraduate clinical teaching. In this authority I believe that there are no fewer than three such teaching institutions.
According to the timetable I have, the legal proceedings in question were begun on 30th October by way of an application for judicial review under the new Order 53 of the Rules of the Supreme Court, leave to issue which had been granted ex parte by the Divisional Court on the previous day. This application for judicial review related to a direction of the Secretary of State dated as long ago as 1st August last which, as amended five days later on 6th August, purported to exercise his powers under Section 86 of the consolidated legislation by removing the functions of the area health authority, and then to give named commissioners, two of whom had been members of the authority, who have exercised the functions of the authority ever since; and, by agreement with the authority made after the judgment, will continue to exercise them until the end of their financial year which terminates on 31st of this month.
The effect of Mr. Justice Woolf's judgment, to which I will return in a moment, is that the original direction having been declared invalid, the regional authority from 1st to 6th August, and thereafter the five commissioners, have been performing statutory functions and, as agreed, will continue to perform them without statutory authority so to do. Since this has been going on since 1st August last, complete legal and practical chaos would ensue unless Parliament stepped in and substituted order and certainty for the resulting confusion.
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The solution proposed by the Bill—which after some protracted debate in another place, was passed without amendment—is to provide that until 31st March next, when, at the beginning of their new financial year, the authority will resume its normal functions, the commissioners are to stay in office, and the invalid direction of 1st August last and its amendment will be treated as if from the first it had been a valid direction under Section 86 of the Act. This will have the effect of giving statutory authority for all that will have been done under its purported authority, but it will, of course—and this is important—preserve any right of action, whether in contract or in tort, which would have subsisted against the commissioners or the authority had the act or omission concerned been done with the full authority of the consolidating legislation behind it. In other words, the commissioners will remain liable for any act or omission which would have given rise to liability had they been properly appointed. They have no indemnity. My task is therefore to establish that this solution is the proper course of action to take, and, owing to the responsible attitude adopted by the respective parties to the litigation and thereafter by the Opposition Front Benches in both Houses, I trust that I shall succeed in performing it to your Lordships' satisfaction.
I begin on a somewhat philosophical note. Breaches of the law, and in particular any unauthorised use of power in authority, are never to be treated lightly, and must not be, nor must they be brushed aside as being of no importance, and I shall not attempt to brush them aside. It is a wise provision of our law embodied in a well known Latin tag, which forbids ignorance of the law or of its true effect, however excusable, to be used as an excuse for breach of any legal provisions. It was therefore right that my right honourable friend should offer an unqualified apology for his action, so soon as he had come to the conclusion that the judgment was not one from which it was desirable to appeal. I do not think he could have been expected to do so before that moment. The arguments involved were themselves numerous and complicated—so numerous and indeed so complicated, that at the end of his judgment, which ran into 27 foolscap pages of transcript, all of which I have read, the learned Judge himself seems to

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have envisaged that an appeal was more probable than not, and to have expressed the view, anticipating in one sense the present Bill—and here I quote his exact words:
" It should not be assumed that I am intending the Commissioners to cease to function during the interim. Speaking for myself, I think that it is in the public interest that they should continue, in the interim, to act ".
That is what we are proposing should happen.
May I say a word of praise for the responsible attitude adopted by the three boroughs in their hour of victory. No sooner had the judge uttered these words which I have quoted than counsel for the three boroughs, acting, of course, on the instructions of the three boroughs, expressed the suggestion—this again is embodied in the Bill and again I quote—that:
" the transfer of the functions of the five commissioners ought to continue to the end of the financial year, that is, the 31st March 1980 ".
That again is what the Bill proposes. I have therefore the authority not merely of my right honourable friend but of the learned judge himself and of the successful litigants, as well as of the Opposition Benches in the House of Commons, for the pragmatic sanction which I am now proposing in the Bill.
I should add, if I may, a word of praise for the accommodating attitude adopted by the authority, since after a meeting with my right honourable friend he was able to tell Parliament on 11th March that:
" if restored the authority would abide by the cash limits established for the area —" [Official Report; Commons, cols. 1173–1174.]
Thus, although it would be wrong on my part if I were to impute to them any enthusiasm for the policies involved by the imposition of the cash limits, due respect for their constitutional obligations is now clearly restored.
In the event, of course, as we now know, contrary to the expectation of the learned judge and of my right honourable friend's successful opponents, my right honourable friend decided not to appeal. In this, I think, he is also to be praised for his decision. Quite apart from the merits, to which I will return in a moment,
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he was able thereby to reduce the period of uncertainty inseparable from litigation from a matter of weeks, if not months, to a matter of days and probably thereby reduce the emotional tension and increase the chances of peaceful co-operation for the future.
No one, of course, can say what would have happened had an appeal gone forward and I will not attempt to speculate on the result of it. But I hope, since it is relevant to the present discussion, that the House will permit me one brief word of comment. The learned judge not merely acquitted my right honourable friend of the smallest degree of bad faith—that, of course, one would have expected —but also of acting unreasonably. He also ruled against a number of the legal arguments which had been advanced on behalf of the boroughs.
His judgment, in the result, seems to me to have been based on two separate grounds. On the first, he seems to have thought that my right honourable friend may have proceeded by the wrong route—that is to say, going by way of Section 86 rather than by way of Section 17, followed by Section 85. This issue depended on the view one takes of the facts. It was hotly contested at the hearing, and, since all the evidence was on affidavit and therefore not cross-examined to, it could of course easily have been appealed, although one must not speculate as to what might have happened had an appeal been heard.
But the second point was a pure point of law. Though from a procedural point of view it was even more easily susceptible on that ground as a matter of appeal, I do not think that I ought to refrain from saying that I think the learned judge was right in the view that he took and that my right honourable friend was wise to adopt his decision. This was that even on the assumption that Section 86 was the correct route to take, or at least one of two possible correct routes, the direction under it should have specified a definite period—say, until 31st March 1980—within which alone it should operate. If this be right—and, as I have said, I think it is—however praiseworthy my right honourable friend's action would have been if the direction had been properly expressed, it was invalid for an error of form visible on its face.

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Attempts have been made in another place to cast scorn on the advisers of my right honourable friend for what must be seen in retrospect as a legal blunder, but I an bound to say—I do not know whether the noble and learned Lord who is to am bound to say—I do not know whether follow me would agree—as one who has practised in the law in one way or another for 50 years that it is easy to be wise in such matters after the event, and with hindsight, and that none of us lawyers can really say anything else in such a situation except"There, but for the grace of God, go I ".
Moreover, it is legitimate to say that whichever of the two points made by the learned judge had been upheld on appeal—and in the absence of appeal one should assume that both would have been upheld —neither casts any doubt on the correctness of the decision from the point of view of policy. However much one may sympathise with the authority for their reluctance, whether when confronted by Mr. Ennals or whether when confronted by his successor, to abide by cash limits at the expense of the important services which they provide, once it had been established, as it was established, that the cash limits had legal force, or would have legal force when buttressed by a direction, the authority was under a legal and constitutional obligation to accept them, and if it refused to do so would have been bound to have been replaced by commissioners, either under Section 85 or under Section 86; and these commissioners would in fact have done exactly as the present commissioners have done, whether they had been appointed by a Labour Minister or a Conservative Minister, and whether they had been appointed by way of Section 17 and Section 85 or by a valid direction under Section 86.
I submit to the House that this is really conclusive of the validity of the arguments for the Second Reading of this Bill, and I also submit that it is equally conclusive of the one remaining area of controversy which was raised in Committee on the Floor of another place and at least adumbrated in this House when the noble and learned Lord, Lord Elwyn-Jones, commented on my right honourable friend's original Statement which I then repeated here.
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Once one has established, as I believe I have now done, that what was wrong about my right honourable friend's action was not the end he had set himself but either the route he had taken to reach it or the form in which he had chosen to express his decision, it is clear that the validation of his acts and the following acts of the commissioners is the only sensible course to take.
I have already said that this is not an indemnity Bill in the true sense. It is a validation Bill. It does not indemnify the commissioners against anything which they did or failed to do which would have been illegal had they been validly appointed. It only puts them in the same position as regards liability as they would have been if they had been validly appointed, as they could have been. That seems to me to be entirely right.
Other health authorities and at least one area health authority—teaching, were in the same position and under the same constraints as regards cash limits as were Southwark, Lambeth and Lewisham, but they chose to accept their obligation rather than to defy it. In doing so, neither they nor their Lambeth counterpart have incurred any liability of their own and so, equally, no inhabitant and no supplier or customer of the Lambeth, Southwark and Lewisham authority ought to gain a fortuitous advantage over their counterparts in, let us say, Hounslow or Hammersmith simply by reason of the fact that my right honourable friend chose to walk to his destination on the wrong side of the river or to express his decision in the wrong form or words. I think it follows from this that the Bill should command the support of the House, at least on Second Reading. I therefore beg to move.
Moved, That the Bill be now read 2a.—(The Lord Chancellor.)

EDUCATION (NO. 2) BILL: SCHOOL TRANSPORT
3.39 p.m.
The MINISTER of STATE, DEPARTMENT of EDUCATION and SCIENCE (Baroness Young): My Lords, with the leave of the House, I should like to make a similar Statement to that being made in

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another place by my right honourable friend the Secretary of State for Education and Science on school transport provision in England, Scotland and Wales.
As the House will know, decisions were taken last week by a Committee of your Lordships' House to delete Clauses 23 and 25 of the Education (No. 2) Bill. These clauses sought to empower local education authorities in England and Wales and education authorities in Scotland to charge for providing school transport. The Government have now had an opportunity to consider the situation and have decided it would not be right to seek to reintroduce the clauses. Such consequential changes to the Bill as are necessary to give effect to this decision will be tabled as amendments for consideration at Report stage.
As the House will also know, the Government decided last year that it was necessary for local authorities to reduce public expenditure and the rate support grant settlements for 1980–81 were made accordingly. It was the request of the Association of County Councils that, in making these reductions, local education authorities in England and Wales were to be free, if they wished, to introduce charges for providing school transport. In view of the decision last week and the Government's acceptance of that decision, the option to charge is no longer open to local authorities. But that in no way removes the obligation on local authorities to achieve the needed reductions in expenditure in some other way.
Baroness DAVID: My Lords, I should like to thank the Minister for repeating that Statement. We on these Benches—and I am sure many other noble Lords—will be very glad and relieved to know that the Government have accepted the decision of the House. Indeed, there was such an upsurge of feeling throughout the whole country that I think it would have been unwise for them to have ignored it.
So far as the obligation on the local authorities to find the money elsewhere is concerned, I should like to ask the Minister if she thinks it fair that, really having been led up the garden path about this transport clause, they should now have to find this money at the very last minute? Would it not be possible to make some supplementary allocation to the rate support grant?
Viscount SIMON: My Lords, I feel that the whole House will be grateful that the Government have reached this decision not to try to overturn a decision that was reached in Committee last week, one that my noble friends and I feel much more correctly reflects opinion in the country than did the decision of another place when they sent the Bill to us with Clauses 23 and 25 included in it.
As regards the concluding passage of the noble Baroness's Statement, I hope that, since we have been told that many local authorities, including, I think, all the local authorities in Scotland, had found it possible already to decide that they would not impose transport charges, it will not be too difficult for the others to meet the obligations that are being placed upon them.
Baroness YOUNG: My Lords, I should like to comment on the two points that the noble Baroness, Lady David, and the noble Viscount, Lord Simon, have made about the consequences of the decision that was taken last week. I have been asked whether the Government think it is fair to ask local authorities to find the money. I think it is important to remind the House that the request originally came from the Association of County Councils, and it came about because the local authorities had been asked to make savings and the local education authorities asked whether they might be allowed to have a power to charge in these particular circumstances. One of the reasons for introducing the clauses into the Bill was to try to carry out that wish and grant them the power. I should make it quite clear that the cash limit for the whole year has now been set and that the concluding part of my Statement must stand.
The noble Viscount, Lord Simon, asked about the position of local education authorities. I think that the whole House will be interested to know that at least 20 local authorities were planning to introduce charges, and we estimate that the saving of £20 million required would have been achieved had they gone ahead, and it would have been a saving in net expenditure. But I have no doubt that those who were contemplating charging will now have to find the savings in some other areas of their budget, and those savings will not be easy to find.

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I should make it clear that one of the reasons why the Government introduced this was that they believed it was more important that the saving should come from the non-educational parts of the education budget; now that that is not fully open to them, savings will clearly have to be found in other parts of the budget, a decision that I personally regret.?
Lord TAYLOR of BLACKBURN: My Lords, I am getting a little tired of the Minister just referring to"the Association of County Councils ". There are other associations that have entirely different views from those of the Association of County Councils. Also, may I say that there are 104 authorities in this country, not just 20?
Baroness YOUNG: My Lords, if I may reply to the point raised by the noble Lord, Lord Taylor, I am perfectly aware that there is an Association of Metropolitan Authorities, with which I have personally been connected, both when I was in local government and as a vice-president, when we were in Opposition. Therefore, I am well aware that they have expressed views—the London boroughs and the Scottish authorities. There are other associations. The Association of County Councils clearly asked for this particular power because they are the most directly affected by the open-ended subsidy. They asked for the power; the House has now taken a decision on this matter. It is only right that I should say what they had asked us to do.
Lord ROSS of MARNOCK: My Lords, would the noble Baroness make it clear that it was the Association of County Councils in England and Wales and that this power was not sought by the education authorities in Scotland?
Baroness YOUNG: My Lords, I have never sought to say anything other than that it was the Association of County Councils in England and Wales, and I repeat that.
Lord SOMERS: My Lords, the noble Baroness, Lady Young, I think, referred to transport as being a non-essential part of education. Would she not agree that if one cannot get to school one cannot be educated? I should have thought that it was a very essential part.
Baroness YOUNG: My Lords, I am sorry if the noble Lord, Lord Somers, did not hear what I said. I said it was a non-educational part of the education budget, not a non-essential part of it.
Lord ALEXANDER of POTTERHILL: My Lords, I hope that those of us who were in the Lobby against the Government on this issue will not necessarily find any need to oppose the second part of the Minister's Statement. For myself, I wholly accept the need for the reduction in expenditure, which the Government have been seeking, but I remind the House that there are more people who do not teach in the Education Service than there are who teach in the classroom, and I am completely confident that savings can be made without detriment to the Education Service.
Baroness YOUNG: My Lords, I am very glad to hear that the noble Lord, Lord Alexander, accepts the last part of the Statement, but he will recall that at Second Reading he suggested that alternative economies might be made in respect of teachers. It may be helpful to remind the House of the figures that I gave at Second Reading; that is, that the local education authorities spent only 3·5 per cent. of their budgets on administration in education and that over the last five years the cost of educational administration has fallen in real terms by £40 million, or nearly 10 per cent. It would therefore be difficult for them to find a great deal of extra money exclusively from savings in administration.
Lord LEATHERLAND: My Lords, this is the fourth time of asking. There have been suggestions that other services might have to be cut as a result of the decision which we took, or that rates might have to be increased. If I may say a word as one who has introduced six or seven county council budgets and a number of district council budgets in my time, all of these authorities have balances in hand. In my county council we had over £2 million which we used to carry forward every year, so the problem of defraying this extra burden that is going to fall on these councils will not be difficult at all. It will merely mean taking a slice out of the balance that is carried forward.
Lord NUGENT of GUILDFORD: My Lords, is my noble friend aware that,

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while applauding her decision to accept the decision of the House here last week, many of us are very grateful to her for her efforts to reduce public expenditure, which is at the root of getting on top of inflation in this country?
Baroness YOUNG: My Lords, may I thank the noble Lord, Lord Nugent, for his remarks and say to the noble Lord, Lord Leatherland, that of course it is open to local authorities that have balances to use them. What he and other Members of the House have to remember is that we are talking about £20 million this year. It is, of course, cumulative over the years, and there is a limit to how far even if one has balances one can use them. That is one of the effects of the cut-backs and the squeeze on Government and local government expenditure; local authorities have been using their balances. No doubt they can continue to do so, but they cannot live in that way and it is not really a course to be recommended in deciding public policy.
Lord LEATHERLAND: My Lords, the noble Baroness, Lady Young, is quite correct in what she says, but the rateable value is also cumulative and is going up year by year; so that the stated stable number of pence in the pound of the rate will bring in an increasing income every year.
Baroness YOUNG: My Lords, I think the noble Lord, Lord Leatherland, would agree with me that rates are not a buoyant tax like income tax.
Lord DAVIES of LEEK: My Lords, is the noble Baroness aware that some of us believe that the nation was rushed into this because of the euphoria connected with the Conservative Party having overwhelmingly won the election
A noble Lord: Not in Scotland!
Lord DAVIES of LEEK: My Lords, secondly, will she now ask her party and the Government to look again at the rural schools which could be left open and which could save transport charges for many of the people living in the rural areas of Britain.
Baroness YOUNG: My Lords, as the noble Lord will know very well, no one can
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close a rural school unless a proposition to do so is put up by the local education authority. It then has either to be approved or otherwise by the Secretary of State. So a decision to close rural schools must come from the local education authorities themselves. However, I will not accept, for the reasons well given by my noble friend Lord Nugent of Guildford, that there was no reason for us not to go ahead to cut back Government expenditure. The situation in this country remains very serious. The basic arithmetic about education and all Government policies remains the same, regardless of the decision taken in the House last week.
Lord ALEXANDER of POTTER HILL: My Lords, allow me merely to draw the attention of the House to the fact that while it is true that only 3½ per cent. is spent on administration, there are 700,000 people employed in the Education Service other than teachers and only 600,000 teachers.
Baroness YOUNG: My Lords, the latest number of teachers that I have is approximately 470,000. I think it will drop slightly this year although I have not the figure in my head, but there are more than the noble Lord has said. Of those that the noble Lord has classed as non-teachers, of course there are included many people that he would regard as being essential to the Education Service, such as laboratory technicians, other people who help as assistants to teachers in the classrooms, and such people as school secretaries, without whom many schools would find it difficult to manage.

NATIONAL HEALTH SERVICE (INVALID DIRECTION) BILL
Second Reading debate resumed.
3.53 p.m.
Lord ELWYN-JONES: My Lords, reverting to the business on the Order Paper I am sure your Lordships will be grateful to the noble and learned Lord the Lord Chancellor for his explanation of a Bill which, if I may say so, he has rightly described as having several technical aspects. It is a remarkable Bill in one respect, in its brevity, as the noble and learned Lord has indicated. In effect, it is a one sentence Bill and that is a pretty

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rare bird, even though the sentence runs to 15 lines. It is skillfully drafted but I do not think its brevity should be allowed to diminish its importance, for it is an important Bill for many reasons. First, it is a measure which seeks to limit the damage done by the ultra vires action of a Minister in the purported exercise of statutory powers. As the noble and learned Lord the Lord Chancellor has said, breaches of the law should not be treated lightly, and it is right that this should not be treated lightly in the consideration of this Bill today.
While it is true that the Minister concerned acted in good faith and on the strength of what the judge, at any rate, concluded was legal advice—and I am not going to venture to follow the path which the noble and learned Lord tempted me to follow by commenting on the quality of the judgment—I cannot recollect, when the Tameside and other decisions were made, that the noble and learned Lord and others were encouraging the possible view that the courts may have been wrong there. But there it is; I am content to rest upon the decision of the learned judge, as of course ultimately the noble and learned Lord himself has so rightly done.
I should also add that it is of course gratifying that the Minister made an early, unqualified apology, but nevertheless after all those circumstances of mitigation (if that is the right phrase) have been outlined, a serious Ministerial error was perpetrated in the direction given by the Secretary of State. By what was as a matter of law the illegal use of Ministerial executive power the Minister dismissed a properly constituted public body—a serious step indeed. I am bound to say that in those circumstances I think the draftsman of the Bill is to be congratulated on producing such an innocuous and disarming title as the National Health Service (Invalid Direction) Bill, confusing as. in the context of a National Health Service matter, the word"invalid"is. It led me at any rate to think that this was something to do with the improper transfer of an invalid patient from one place to another. We know the purpose of it, but the seriousness of the matter should not be overlooked on account of the charm and disarming quality of the title.
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Another reason why the Bill is an important one is that it is retrospective in effect. The point was made in another place that it was also prospective in effect until 31st March but as the noble and learned Lord explained that was by agreement with all the parties concerned, and the House will have noted—and those on this side of the House will be grateful—that the noble and learned Lord the Lord Chancellor thought it right to pay tribute to the accommodating attitude of the area health authority in the light of what occurred.
As I have said, the Bill is retrospective and Parliament is always rightly critical of retrospective legislation. For the rest of my days I shall bear the scars that I suffered as the Attorney-General in the debates on the Burmah Oil Bill. But this Bill is not only retrospective, and our worry on this side of the House is whether or not the element of retrospection will result in depriving a subject, who has in fact been damaged or suffered loss by what was done by the authorities during the period of illegality, from a right of action in the courts, or possibly the opportunity for seeking administrative redress for his loss by means possibly of an ex gratia payment or by some other means.
Perhaps I may illustrate the anxiety which has been expressed to me, and which I feel, in this way: During the Committee stage of the Bill in another place on the 13th March the Secretary of State dealt with a point raised in the debate which, as he frankly admitted—
" caused us a good deal of anxiety ".
It concerned—
" instructions given to kidney units and the cardiac unit at King's College hospital to slow down operations so that those units, too, should live within their budgets ".
Quite what"slow down means I am not fully clear; it could not be on the operating table, I hope, but whatever the meaning is, that is what he said. He added:
" Those were difficult decisions, and it is not disclosing anything to say that the chairman of the commissioners consulted Ministers before finally deciding that that is what he would ask the commissioners to recommend ".—[Official Report, Commons, 13/3/80; col. 1612.]
So that that action in slowing down the treatment of cardiac patients and those with serious kidney trouble needing treat-

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meat was the direct result of a decision of the Minister after he had been consulted.
The Minister then asked in the course of the debate:
" What happens if there are patients who feel that they were disadvantaged? "—
and there certainly are, my Lords,
" Should the question of the illegality of the original appointment make any difference?"
The answer given by the Secretary of State was"No ". But I ask, does that really dispose of the matter? Supposing it was the case that as a result of the slowing down of a cardiac operation the patient's illness was aggravated and made more serious? If those were the facts, would the patient, in spite of the passing of this Bill, have a remedy, if it could be shown in the circumstances that the earlier health authority would not have issued the kind of orders that the commissioners and the Secretary of State issued. This was his answer in the discussion of the matter:"Well, the AHA might have clone the same thing."
Your Lordships will know, of course, that deferment of treatment of a cardiac condition could be a serious matter, could indeed he a deadly matter. Again, supposing that during the closure of a hospital, on the basis of the ultra vires order emanating from whoever was acting on the authority of the Minister or the commissioners, assuming it could be shown that it was not an order which the removed health authority would itself have made, without negligence on the part of anybody —if there is negligence provable of course a cause of action would arise in respect of such negligence in spite of the Bill; the noble and learned Lord made that clear—and a patient did suffer an aggravated condition, an aggravated ailment possibly injury, or worsening of his condition, by being moved in perhaps a cold, bumpy, unsuitable ambulance, or whatever the reason might be, would that patient in those circumstances be able to recover damages or some sort of compensation, the aggravation of his condition having been occasioned by his illegal removal, as it was in the circumstances at the time, from one hospital to another, or by the refusal, the slowing down, of cardiac treatment for him?
My Lords, the Secretary of State dismissed, I think summarily, the suggestion
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that provision might he made for hint to have discretion to make perhaps an ex gratia payment in those circumstances. The question which I would respectfully invite the noble and learned Lord and the Government to consider is this. flow clean does the Bill wipe the slate of responsibility on the part of the authorities during the period from August of last year to March of this year? I would invite the noble and learned Lord to consider whether it would be appropriate to include a safeguarding proviso. I am not seeking to draft what it might be, but on the lines that if anyone has suffered injury, loss or damage as a result of any action of the commissioners, their servants or agents, he shall not be deprived of any right of action or recovery he may have by reason of the provisions of this Act.
I am not seeking an answer to these questions now, unless the noble and learned Lord feels confident and absolutely certain that he has a quick and ready answer; then I would be willing to listen with my accustomed admiration of his skill in these matters. But if he would consider the matter between now and the next stage I would be grateful. What we need to do in this Bill is to strike a balance between the undoubted necessity of some form of validation—which is why we shall not oppose the Second Reading of the Bill—and ensuring nevertheless that the exercise of retrospective powers will not prejudice, so far as that can be avoided, anyone who may have suffered injury, loss or damage by reason of what occurred during the period of unlawful exercise of authority by the powers concerned.
4.5 p.m.
Lord WIGODER: My Lords, if your Lordships' House was discussing this afternoon solely the question as to whether this Bill should be given a Second Reading this would be an even shorter discussion than it is going to be. I say that because, on the principle of this Bill, the Opposition in the other place did not seek to divide at any stage, except on amendments in Committee stage, and indeed the Attorney-General in the former Labour Government, Mr. Silkin, indicated that he supported the Bill. We are, however, discussing something perhaps a little wider than the question whether the Bill should be given a Second Reading. It is neces-

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sary in a sentence or two to refer to the history of this matter as it seems to me on the undoubted facts.
It is perfectly clear that the Lambeth, Southwark and Lewisham Area Health Authority had over a period of several years found it impossible to live within its budget. I say that not in any critical way. It has particular problems being an inner urban authority; it has a particular problem because it has no less than three teaching hospitals in its area. But the fact is that it was unable to live within its budget and was persistently over-spending by substantial amounts running into many millions of pounds. It was of course doing that to the detriment of other area health authorities, because the amount that could be spent by the department was limited, and if one area health authority overspent it followed that the money would have to be made up at the expense of other area health authorities.
That was a situation which it seems to me no responsible Secretary of State in any responsible Government, whatever its political complexion, could allow to rest there. Indeed, Mr. David Ennals, the Secretary of State in the previous Government, took certain steps to deal with that overspending and those steps were to some extent successful. But when the Secretary of State in the present Government took office it was clear that nevertheless the overspending was continuing, and the Secretary of State in the present Government in those circumstances decided to take further steps.
I do not see how he could have done other than come to that decision. The decision in itself was a perfectly proper one, from whatever political point of view it is looked at. What he obviously then did was to take legal advice as to how to proceed, and it is now common knowledge that the legal advice was wrong. There is nothing very remarkable in that. If legal advice was always right there would be far fewer contested cases than there are. Indeed, I have heard it whispered that there are occasions on which distinguished judges do err in matters of law and are overruled in higher courts.
As we have heard from the noble and learned Lord on the Woolsack, Mr. Justice Woolf in due course found in
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favour of the area health authority, on what I think can fairly be called two narrow points. Indeed the particular point and the decisive point, as to whether there should have been a time limit expressed when the direction under Section 86 was made, was so narrow that it had been specifically abandoned by counsel acting for the area health authority in the course of the argument before the learned trial judge.
My Lords, in that situation perhaps the only comment I would venture to make is this: that it does seem a little strange that the department did not seek the advice of the Law Officers. I say"did not seek the advice of the Law Officers ", because it does not appear from the debate in the other place that it was agreed that such advice had not been obtained. With the advantage of hindsight, which is always a considerable advantage, it may be that, when a Secretary of State is about to invoke powers for the first time which involve dismissing or suspending a responsible authority and replacing it with directly appointed commissioners in an area as controversial as this was bound to be, it might have been better to have obtained the advice of the Law Officers. I do not mean to suggest by that comment that the advice would necessarily have been different. Law Officers, too, are not infallible, but perhaps one of their functions is that in matters of this sort an opinion should be obtained from them, rather than left with the department's own legal advisers.
In this unhappy situation the result is that a series of actions has taken place, carried out by the commissioners over a period of months. The question is: what is to be done about it? The answer is perfectly clearly expressed in this short Bill which validates those actions. In so far as those actions were themselves wrongful—for example, wrongful dismissals or anything of that nature—of course, it does not legitimise those actions. But it means that their actions as a whole are to be regarded as lawful in the sense that they are not rendered illegal by the fact that they were improperly appointed in the first place. It seems to me to be the only way to deal with the situation.
I do not see how the Bill can be improved by the addition of the amendments

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—which I must say I thought were somewhat misconceived—that were introduced in the other place at the Committee stage. It may be that some of your Lordships will have read the observations about those amendments by one of the Members of the other place, not entirely unrelated to the noble and learned Lord on the Woolsack. They seemed to me, if I may say so, to be of some effect.
Your Lordships will have listened with very considerable care to the noble and learned Lord, Lord Elwyn-Jones, who raised the question of people who suffered disadvantage during the period that the commissioners were in office. I cannot help reflecting, unfortunate though it may be, that they would have suffered precisely the same disadvantage had a time limit been put into the Section 86 direction and the activities of the commissioners been lawful ab initio. It seems to me that they would have suffered precisely the same disadvantage if commissioners had never been appointed in the first place, but the area health authority had proceeded to comply with the cash limits.
Lord ELWYN-JONES: My Lords, if the facts were that the area health authority would not, for instance, have closed a hospital—and we have heard of the case of the cardiac patient to whom I referred and who, because of that change of decision and circumstances, suffered aggravation of his heart condition—would that not be a fresh matter for which some sort of provision (I do not say for one moment that it is an easy problem) ought to be made in retrospective legislation?
Lord WIGODER: My Lords, if there is pressure upon any authority one way or another to limit their expenditure—and that pressure can perfectly properly be brought by this Government, as it was by the previous Government—it is inevitable that some people are placed at a disadvantage. I doubt, if I may say so most respectfully to the noble and learned Lord, whether it really helps to talk in terms of the slightly emotive context of the cardiac patient. Some people are bound to be disadvantaged—of course they are—if there is less expenditure on resources at any one time than there was at a previous time. But I cannot see how the mere fact that that happens gives a right
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of action, or should give a right of action as a matter of law, to those people who find themselves placed in that unfortunate position. If that is right, then it seems to me that that would be the situation, or ought to be the situation, where the commissioners were appointed as a result of an invalid direction, just as if they had been appointed as a result of a valid direction.
This is a matter of gravity—of course it is. I entirely agree with the noble and learned Lord, Lord Elwyn-Jones, that any instance of a Government department having been shown to have acted illegally over a period of months, is of course a matter of gravity which deserves the most careful consideration. It is a matter of gravity too, that we are discussing a Bill today that has a retrospective effect. It is bound, in the very nature of the whole incident, to have a retrospective effect. But again it seems to me to be right that we should consider the Bill with the greatest possible care from that point of view.
Having considered the whole history of this extremely unfortunate matter, it seems to me that your Lordships' House really has no alternative, in common sense but to give the Bill a Second Reading and, in due course, and as quickly as possible, to let it go on the statute book.
4.16 p.m.
Lord WELLS-PESTELL: My Lords, it was not my intention to invervene in this Second Reading debate this afternoon, because before your Lordships considered the Bill my noble and learned friend Lord Elwyn-Jones and myself found ourselves in complete agreement with the noble and learned Lord on the Woolsack who said that this House was different in a number of ways from another place and that we would not want to follow the other place in having a detailed discussion of a large number of matters which to some of us perhaps did not come within the terms of this Bill. However, I must confess that the way in which the noble Lord, Lord Wigoder, introduced what he wished to say, tempted me almost —by his reference to the situation of the last Government—to say something about the events leading up to this situation. However, I shall resist that temptation because I do not think it would serve any useful purpose at all.

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I am on my feet for one purpose and one purpose only; namely, when this matter first came before your Lordships' House on 26th February, when the noble Lord, Lord Cullen of Ashbourne, repeated a Statement made by his right honourable friend in another place, I asked the noble Lord whether he would inform the House as to who was responsible for giving legal advice to his right honourable friend the Secretary of State. That information was not forthcoming and I said that, if there were a subsequent Statement, I hoped that it would be given then. On 3rd March, when the noble and learned Lord on the Woolsack made a Statement, the matter was not dealt with. I wanted to say that, as I pressed the matter, having read the debate in the other place, it seemed to me to be perfectly proper that that information should not be given. Perhaps I can say it is almost a matter of congratulations to the Secretary of State that he did not give it, because he has honoured the convention, which sometimes seems not to have been honoured, in accepting full responsibility himself and not putting it on somebody else.
4.19 p.m.
Lord MISHCON: My Lords, I would not have intervened but for the observations that came from the noble Lord, Lord Wigoder, a few moments ago. Although I always have the greatest respect for his comments, I am afraid that he is at least responsible for my wearying your Lordships for a couple of minutes. It is absolutely right that one should praise, as the noble and learned Lord who sits on the Woolsack did, the learned judge who delivered the very lucid judgment in this case, Mr. Justice Woolf. It is quite right that one should praise the Secretary of State for the dignity and gentility of his apology to the nation at large. It is right that one should praise the local authorities for being generous in their hour of triumph, for being conciliatory and for being sensible in the circumstances. It is equally right that in circumstances such as these—and I do not level any blame, but merely express sorrow that such things should occur—there should be a Bill of this kind before your Lordships' House.
However, in the very language that the noble and learned Lord the Lord Chancellor used, when one breaches the
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law of this country, however much one may sympathise with those who do it, it is a"breach which cannot be treated lightly because it is a breach of the law ", and ignorance of the law is no excuse. Very simply that means one thing, that we cannot use excuses and say,"But if only a date had been put in the document; if only the Secretary of State or his advisers had looked through certain other sections, they might well have acted under sections which were open to them." The fact is that the law was breached, and anyone who happens to suffer, and who can prove that he suffered, as a result of the fact that someone was acting in purported authority under law but had not right to do so, in my submission to your Lordships, must have a right of redress, whether by law, by administrative acts or by the generosity of a Government.
That was the point which my noble and learned friend Lord Elwyn-Jones was putting to the House. He put to the House an example of what might have occurred to a cardiac patient. The noble Lord, Lord Wigoder, dismissed that matter not because he lacked sympathy, but because he said that that might have happened in any event if only a date had been put in or, indeed, if another administrative authority—the legal one—had been in charge. In my view, the example given by my noble and learned friend was a very valid one. However, perhaps I could give another example to the House which might, if I may respectfully say so, make the noble Lord, Lord Wigoder, think again.
What of the position of an old employee of a hospital, someone who has been at that hospital for many years; someone, to give a hypothetical case, whose age is 58 and who will retire when he attains his 60th birthday? Let us suppose that one manages to prove that the area authority would never have closed the hospital, would never have announced the closure and, if you like, would have thought of other economies. Let us suppose that this employee is told by this authority—the commissioners, who are not legally acting in the matter, or by their agents—that the hospital will be closed. He might obtain alternative employment elsewhere for the odd two years of his service, but it could be a long way away. Of course, it could be that he would not want to go elsewhere

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but simply wants to stay in the hospital, if only he can, that he has served so loyally and for so long. Let us suppose that he decides to elect for an early retirement which now means a loss—a diminution—in his pension rights. I merely give that as an example of a situation which your Lordships may well think ought at least to be looked at and covered.
If there are no such cases, and nobody manages to prove, first, that the area health authority would not have done the same thing and, secondly, that he suffered no loss, quite obviously the point falls—it is a good academic point, but it has no practical application. With respect to my noble and learned friend, I believe I am right in saying that this was the principle of the point that he was putting so clearly to the House, and it is also the principle of the point that I wish to put to the House.
I hope that the noble and learned Lord the Lord Chancellor will be able to say that if' there are any such cases they will he looked at sympathetically and dealt with sympathetically. I also hope that the noble and learned Lord may think it proper to answer at some stage—as my noble and learned friend so patiently and courteously said— whether one ought not to consider a proviso to this Bill to cover cases of this kind as a matter of law; if one ought to do it by way of law and not by way of generosity and kindness.
4.26 p.m.
The LORD CHANCELLOR: My Lords, I am grateful to the noble Lords who have taken part in this debate and for the tone of the debate generally. If I may say so to the noble and learned Lord, Lord Elwyn-Jones, at the moment I do not believe that the safeguarding provision, which he mentioned at the end of his speech, is a necessity or, if not necessary, is desirable, because I do not think that one should burden Bills of this kind with that sort of thing if they are not necessary. But I shall take advice about it, because—as he has divined—although I have the capacity for a confident and early answer, I am also aware that confident and early answers are not always right. Therefore, I shall take advice about it. However, I should expect the advice to coincide with what I have just said rather than it being the opposite. Certainly that will be considered.
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My task has, I think, been almost completely covered by the speech of the noble Lord, Lord Wigoder, with which, broadly speaking, I agree, both in his reasoning and in his conclusion. I read with care the debate on the Committee stage in another place which resulted in two Divisions. Both were concerned with the principle of compensation, and I read all the arguments for and against. However, I came to the same conclusion as the noble Lord, Lord Wigoder, that what the proponents of the two amendments which failed sought to do was not to get compensation for a wrong resulting from what was basically an error of form in my right honourable friend's direction, but, in effect, to get an adventitious advantage which would not have been shared had they lived, say, in the Boroughs of Hammersmith or Hounslow, where exactly the same conditions occurred but where, in fact, the area health authority took upon itself to obey its constitutional duties instead of defying them.
I cannot for the life of me see that an adventitious advantage ought to be given to those who happen to live in Lambeth because the local authority failed to do what it now recognises to be its duty, and because my right honourable friend failed to observe the proper form in giving the direction which superseded it in its authority. Like the noble Lord, Lord Wigoder, I was particularly impressed by the lucid and, to my mind, irresistible logic of the speech which was made in another place by the honourable Member for the holy city of Grantham. I found it completely convincing.
I was very grateful to the noble Lord, Lord Wells-Pestell, for what he rose to say, because, of course, it is a convention which Governments observe that Ministers take responsibility for errors of law and they do not disclose the sources from which they derive their errors. But I would say, speaking in general as one who has held executive offices other than that which I at present hold, that I do not think one should go running to the law officers on every possible occasion. On the contrary, the law officers would not improve the quality of their advice if they were given a great deal more to do. Indeed, there are other alternatives, and one must exercise one's wisdom about them if one is a Minister.

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One can, of course, rely on the very capable qualified staff in one's own department. When I was Minister for Education and then Secretary of State for Education and Science, we had a very competent legal staff, and I am bound to say that on matters which were directly within the field of education I should probably have preferred their advice to that of any other available lawyers outside the field of one's own department. It depends very much on the kind of question which one is asked. One goes to the Treasury Solicitor and he advises one whom to get advice from. It might be a question of criminal law, when one would go to one of the Treasury counsel who practise in the Central Criminal Court. It might be a question of patent law, in which case one would probably inquire of a patent lawyer with a very wide legal experience.
Although it is not proper for the Government to disclose in particular cases the sources that they consult, I do not think it is necessary, as a general rule, to say that they ought to have gone running to the law officers in each case. Whether they did in this case must be a matter which is wholly unknown to anybody outside Government circles, although I have noticed there is a certain amount of speculation in various organs of the Press.
I think that is really all I particularly wanted to say. I shall, of course, bear in mind the general observations made about retrospection, with which I agree. I thought I remembered the Burmah Oil debate in another place, in which the noble and learned Lord played a prominent part. I played a less prominent part, but he may not know the inner history of how I helped the Conservative Opposition to get him off the hook. One day I will tell him.
Lord ELWYN-JONES: My Lords, I must say it is a revelation to me that I was ever allowed to get off the hook.
The LORD CHANCELLOR: My Lords, of course, one cannot, when one is in Opposition, go through the motions of removing the barb from the Attorney-General of the day, but one can make things easier or more difficult for him, and we were faced with a very difficult
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parliamentary situation. I think we, with our customary sense of responsibility in Opposition, got out of a very difficult situation very nicely, although we incurred a good deal of hostility from members of our own side. However, I must not digress into history.
I am very grateful to the House for giving this Bill a fairly friendly welcome. I do not think anyone could indulge in enthusiastic condemnation of Ministers who sometimes take wrong courses in law. When I repeated the Statement on 3rd March, I enumerated quite a number of previous occasions when Ministers had gone wrong in law. I did not mention the Burmah Oil case. Nor did I mention the rather curious case which involved the noble Lord, Lord Gordon-Walker, when he was Minister of Education. We can all make mistakes of this kind. Ministers must always come to Parliament wearing sack-cloth on their shoulders and pouring ashes on their heads when they do it, but, just as one must not make light of such breaches or failures on the part of Government, one must equally not exaggerate, because they can be overstated and often arc in the heat of debate and party politics.
There is one philosophical point which I should like to add at the conclusion of my remarks and which will bring me to a close. It is this: when we talk, as we did earlier in the session about the European Convention on Human Rights, there are noble Lords—I think mainly on the Labour side, but also among the Law Lords on the Cross Benches—who talk of the horrors of judges becoming involved in decisions with sensitive political consequences. I did venture to say then, and I repeat it, that they cannot avoid it. Litigation is demand-led and from time to time judges will have to condemn Ministers. It is a very good thing that we have an independent judiciary and an independent system of courts in which judges are not afraid of the consequences to themselves of doing so. The unfortunate Chief Justice of Uganda was rather less fortunate when he decided against the Government under the regime of the detestable Amin. My Lords, I thank you for your kindness and indulgence.
On Question, Bill read 2a, and committed to a Committee of the Whole House.