Lords Sitting of 7 May 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 Newcastle

LORD SOAMES: TRIBUTES ON RHODESIA GOVERNORSHIP
Lord GORONWY-ROBERTS: My Lords, before we proceed to the business set out on the Order Paper, I am sure that it would be the general desire in all quarters of the House that someone should welcome most warmly the return of the noble Lord, Lord Soames, to his accustomed place as Leader of the House.
Several noble Lords: Hear, hear!
Lord GORONWY-ROBERTS: In doing so, I am sure that the noble Lord would be the very first to join with me in paying a signal tribute to the noble Earl, Lord Ferrers, for the grace and efficiency with which he has discharged the duties of the leadership of this House. The achievement of the noble Lord, Lord Soames, in Rhodesia-Zimbabwe needs no further encomia from me or anybody else in this House. We have perhaps been a little repetitive in our appreciation of his achievements.
However, suffice it to say that he has implemented in a crucial part of Africa— and, indeed, the world—policies which have deservedly attracted the support of all responsible elements in all parties in this country and, I believe, in Africa. He has implemented with great success a policy of constitutional and ordered advancement of Rhodesia to independence as Zimbabwe which his noble friend Lord Carrington, as Foreign and Commonwealth Secretary, so courageously promoted. If I may say so, he has received in that the support of Her Majesty's loyal Opposition with fair consistency compatible with the exigencies of the democratic life.
We have been delighted to see how the consensus in favour of ordered constitutional transfer from dependency to
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independency has been effected by the noble Lord and by the present Government. In so doing, he has been the instrument, with others, as he would agree, of averting a crisis in central Africa which might have escalated into catastrophe. It is still early days to pronounce with total confidence about the outcome of these negotiations, but I think that we can afford to look to the future in Africa and in the West generally with confidence.
Here I am sure that the noble Lord will agree with me that one of the most encouraging aspects of the outcome of the successful negotiations is the attitude and policies of the new Prime Minister of Zimbabwe, Mr. Robert Mugabe. In speaking these few words of the warmest welcome and renewed congratulation, I am sure that the House would like this occasion to be one on which once more we convey to the new rulers of Zimbabwe our hope and confidence that they will conduct the internal and external affairs of that new country, the newest member of the Commonwealth, on the lines that we are all delighted to see they have begun so hopefully.
Lord BYERS: My Lords, may I, on behalf of my colleagues on these Benches, warmly endorse everything that the noble Lord, Lord Goronwy-Roberts, has said and welcome home most warmly the noble Lord the Leader of the House, We all feel tremendous admiration for a very difficult job extremely well done, without even incurring the usual transfer fee for the four to six months that he has been away. It was a remarkable achievement; and our congratulations and gratitude go not only to the noble Lord but to Lady Soames who clearly has been a tremendous help to her husband in bringing about a successful solution to a very difficult situation.
I am sorry that the noble Lord, Lord Carrington, is not here for us to express our thanks to him for his patience and diplomacy at Lancaster House which led up to the situation from which the noble Lord, Lord Soames, could carry on. While this House can provide such expertise and such weight—and I mean "weight" in the political sense—when called upon to do so, I do not think that we are in any imminent danger of abolition from the Left Wing in another place.

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As Members of this House, we are all proud at what has been achieved in our name and in the name of this country.
I should also like to thank the noble Earl, Lord Ferrers, for the way in which he has led the House in the absence of the Leader. He has done it with dignity and efficiency. We shall expect a little more discipline now that we have the boss back, but I do not think that the House will be any the worse for that. Welcome home!
Baroness HYLTON-FOSTER: My Lords, it was at the last Cross-Bench Peers' Meeting that I was asked to convey to the noble Lord, Lord Soames, our very warm congratulations on his splendid achievement. We should like to extend our appreciation also to Lady Soames, who must have been such a tremendous help to him during this time. I am sure that my colleagues here would not think me out of order if I said that we are also very appreciative of what the noble Earl, Lord Ferrers, has done in the absence of the noble Lord, Lord Soames. We welcome Lord and Lady Soames back very warmly.
Baroness GAITSKELL: My Lords, may I add my congratulations and jubilation at the outcome of the whole Rhodesia success? I was very moved when I saw the noble Lord, Lord Soames, speaking to Mr. Mugabe on television at one point. The friendship between the two men was absolutely riveting. May I also, without taking away one iota of the congratulations that are being extended at this moment, suggest that perhaps we could have a small round of applause for the freedom fighters? I hope this will not be misunderstood, but they have made a great contribution too.
Lord DRUMALBYN: My Lords, I think perhaps it would be unfortunate if my noble friend were to get the impression that we on this side of the House did not equally welcome back our Leader, but when the headmaster comes in at the door one never knows what is going to happen! I should like to say, on behalf of my noble friends, that we tremendously admire the way in which he transferred from this House to Zimbabwe (Rhodesia as it was then) an atmosphere which certainly brought about splendid results. His own character, his dignity and his determina-
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tion to achieve the objective are beyond praise and I should like to express, on behalf of my noble friends, the tremendous admiration we feel for the way in which he created that atmosphere and also for his wife, who contributed so much to it.
2.46 p.m.
The LORD PRESIDENT of the COUNCIL (Lord Soames): My Lords, you are all most kind, but I must say I cannot allow too much of this. You are all out of order—every one of you! I suppose that every moment I should have risen to my feet as Leader of the House and suggested that "the noble Lord should be no longer heard", but in view of the nice things he was saying about me I did not feel quite able to do that.
It is nice to be back, and may I thank your Lordships so much, particularly the noble Lords, Lord Goronwy-Roberts and Lord Byers, and the noble Baroness, Lady Hylton-Foster, and also my noble friends on this side of the House for all the kind words that have been said. If I may, I should like to echo the thanks that have been expressed to my noble friend Lord Ferrers for the excellent way in which he has conducted business. We did have a few anxieties from time to time but none of them were concerned with the running of this House, because we knew that under the guidance of my noble friend and with the co-operation of all parties from all sides of this House everything would be well—and it almost was!
My Lords, timing plays such a large part in politics. So many people have turned their hand to this problem of Rhodesia, which has weighed so heavily upon one Government after another ever since UDI in 1965. It was never for want of trying that the situation was not resolved earlier. We have done our best. We have lived through a period of decolonisation. It was inevitable that Southern Rhodesia was going to be the most difficult of all that we had to take on. It was written on the wall: it was there for all to see. Many efforts have been made by many Governments time and time again, with the best will in the world and only wanting to hand over independence to that country with dignity. That is all that every party that has had

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responsibility for the government of this country has wanted to do.
Now it so happened that the timing was right this time and fortune has favoured, thank goodness! this wonderful country of Zimbabwe, which has gone through such awful anguish—seven years of war on top of 15 years of UDI. I doubt whether there has ever been a political issue in this country which all parties, be they in Opposition or in Government, have more wanted to solve than this one. My noble friend Lord Carrington and I were lucky enough to hold the responsibilities that we held at this particular juncture in time. That is why I think we all rejoice that, finally, we have been able, with providence playing a very large part, to hand over to a Government led by a most remarkable man, Mr. Mugabe; a man who has prepared himself for government and who is going to do his very best, I have no doubt, to lead his country to prosperity and to show the world what a multiracial society in Africa can really do.
This is not a trumph of individuals. It is not a triumph even of a party. It is a triumph of a nation sticking to its last, being determined to hand over its responsibilities with dignity. When the time came that this could be done, those who were involved in it can count themselves exceeding lucky. May I thank your Lordships for your great kindness in the words that you have said.

TUC PROTEST STRIKE
2.51 p.m.
Lord GRIDLEY: 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 do not consider it appropriate to make a statement condemning the action of the Trades Union Congress to call a protest strike on 14th May, in view of the TUC's professed concern about our economic plight.
The MINISTER of STATE, DEPARTMENT of EMPLOYMENT (The Earl of Gowrie): My Lords, Ministers
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have on many occasions condemned the absurdly named "day of action" which the TUC have urged union members to support on 14th May. The only effects will be to diminish even further the standing of trade union leaders among the public generally, to threaten jobs and to give comfort to our overseas competitors.
Lord GRIDLEY: My Lords, while thanking my noble friend the Minister of State for Employment for his Answer, may I ask him three short questions: First, whether this action, which is called for on 14th May, is not political in essence? Secondly, has not the national demonstration one purpose—a purpose which is not connected with Parliament or the ballot box—which has already been stated by some trade union leaders and is to deter or defeat the Government in respect of their economic policy, the policy of a lawfully elected Government? I would also ask my noble friend this question: If Parliament is to mean anything, should not this action on 14th May be stated clearly for what it is; and, in a conciliatory sense, should not the TUC, in the interests of all of us, as well as in the interest of themselves, be invited to withdraw the action which they have contemplated?
The Earl of GOWRIE: My Lords, I am altogether in agreement with my noble friend; it is very regrettable that the TUC have gone as far down this road as they have. We are very fortunate in this country in having very many avenues open to us to express our sincerely held political opinions. But it is not profitable to this country in its standing in the world, if we express them by withdrawing our labour.
Lord McCARTHY: My Lords, is the noble Earl aware of the despair in the minds of moderate trade union leaders which statements of that kind are bound to cause? Is he aware that the TUC feel that they have made representations to this Government, over and over again, since they came to office, not only upon the Employment Bill, but also upon economic issues generally, yet on not one occasion have this Government shown the slightest indication that they are remotely interested in the views of the TUC, which is why these things happen?
The Earl of GOWRIE: My Lords, the noble Lord is wrong in everything that he said. Representations have been made to my department and to other Departments of State by the TUC. They have always been listened to with courtesy, and consultation over every issue has been welcomed. What is annoying the TUC is that agreement has not been found to be possible.
Lord CAMPBELL of CROY: My Lords, have the Government made an estimate of the number of jobs likely to be lost, the unemployment likely to be caused, as a result of the inaction for which the TUC have called, were it to be fully observed in a week's time?
The Earl of GOWRIE: My Lords, a number of us are working very hard to try to restore foreign confidence in this country, with all that that means for investment and employment, and we have had some encouraging signs that this is picking up. But this kind of activity, especially in view of there being every kind of political channel open for protest or for the demonstration of views, is not exactly likely to help foreign confidence and, therefore, to help employment.
Lord PAGET of NORTHAMPTON: My Lords, will the noble Earl tell me this: Since it is the Government's policy in the process of controlling inflation to promote unemployment, why do they object to a little trade union co-operation?
The Earl of GOWRIE: My Lords, Governments have an enormous vested interest in people being in work in this country. It is a travesty to suggest that the Government are promoting unemployment.
Lord McCARTHY: My Lords, before the noble Earl concludes that what I am saying is wrong, will he tell us of one significant case where this Government have done anything as a result of representations made by the TUC?
The Earl of GOWRIE: My Lords, I can think of too many, which would take up a very great deal of the time of the House. In the case where I have myself been directly involved, there have been representations on, for instance, maternity issues.
Viscount ST. DAVIDS: My Lords, in the circumstances in which this Question, and the next one which is on the Order Paper in my name, have arisen, will the noble Earl agree that there is some difficulty, because a further statement on what is likely to happen on the 14th has been promised in writing by the Government to certain organisations? It has been suggested that the Government's Answer should have been made on my Question, which was to have been asked next. But in the circumstances which have arisen, obviously, these statements cannot be made at this exact moment. Will the noble Earl tell us whether such statements will be made as Government statements in the very near future?
The Earl of GOWRIE: My Lords, I am a little at a loss as to whether I am answering first Question in the name of my noble friend Lord Gridley, or whether this is a comment which is being asked of me on the Question in the name of the noble Viscount. I can say, however, in respect of the noble Viscount's Question, that my advice is that this is a matter which is sub judice at the moment and that, therefore, it would be improper for me to comment upon it.
Lord ROCHESTER: My Lords, instead of merely making statements of condemnation, as advocated by the first questioner, would not the Government also be well advised to encourage activities aimed at obtaining a clearer understanding on the part of trade union members, that improved living standards are more likely to be achieved through continuity than through disruption of production?
The Earl of GOWRIE: My Lords, it is the Government's view that trade union members, 12 million of them, understand this very well. Our disagreement is with the views, and the methods of expressing them, of the trade union leadership.
The Earl of ONSLOW: My Lords, is the noble Earl aware that it seems to several of us that the total failure of the party opposite to condemn political strikes is something for which they will be held in disrepute for quite a long time?
The Earl of GOWRIE: My Lords, I am in agreement with my noble friend.
2.58 p.m.
Viscount ST. DAVIDS Viscount ST. DAVIDS had given Notice of his intention to ask the following Question:
To ask Her Majesty's Government whether the form of political strike being suggested for 14th May is protected by law as a trade dispute; and, if not, whether any firm or individual put to loss or damage by this action may recover damages from individuals or unions concerned.
The noble Viscount said: My Lords, I was going to ask the Question which is down on the Order Paper before judicial proceedings had been started. But now that judicial proceedings are before the courts, it is obviously impossible for me to ask this Question. However, one thing we can demand is that the Government, who were to have made a statement on my Question, should now consider that, as soon as these matters have been cleared from the courts, either they should make the statement independently or I should be allowed time to put my Question on the Order Paper, as it is considered to be a very valuable one by a great many people in this country.
The Earl of GOWRIE: My Lords, I have never heard the word "however" with more foreboding in my career than just then. But, of course, the noble Viscount is quite right. He is utterly free to put down his Question again at a later stage, when perhaps, as a result of court action, the position will be clearer.
Lord ELWYN-JONES: My Lords, has not the noble Viscount's Question moved from the irregular to the hypothetical?

OXFORDSHIRE: CHARGES FOR SCHOOL TRANSPORT
3 p.m.
Baroness DAVID: 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
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whether it is true that Oxfordshire County Council is proposing to charge for transport to Church schools.
The MINISTER of STATE, DEPARTMENT of EDUCATION and SCIENCE, (Baroness Young): No, my Lords. As I understand it, the Oxfordshire authority have decided that, subject to certain exceptions, free school transport should be provided only for pupils attending their nearest available maintained schools where the distance from home to school by the shortest available route is in excess of the statutory walking distance. The new arrangements are intended to come into effect at the beginning of the next school year, except that pupils attending denominational schools who under the existing arrangements are provided with free transport or assistance with travelling expenses will continue to benefit so long as they remain at the same school.
Baroness DAVID: My Lords, I thank the Minister for her Answer. May I ask her whether or not it will be true that children going to denominational schools will have to pay if they are new pupils of those schools? Present pupils, I understand, will be paid for, but will it not be true that new pupils will have to pay?
Baroness YOUNG: My Lords, my understanding of the position is that the new arrangements will not apply to pupils at denominational schools until the end of the summer term 1981, but that pupils already attending such schools by the end of the summer term 1981 will continue to benefit while they remain in attendance at those schools.
Baroness DAVID: My Lords, may I ask the Minister what is the attitude of the Government about free transport to denominational schools? In the past, the Government have always honoured the religious settlement made at the time of the 1944 Act. May I ask what this Government's attitude is going to be in the future?
Baroness YOUNG: My Lords, I think that the Government have made their position on this matter very clear indeed. I do not wish to repeat the discussions that we had at an earlier stage, upon which this House took a decision and upon which the Government took a

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decision. The noble Baroness is asking a Question about what Oxfordshire are doing now and whether or not the Government will intervene. The position is that on the information available to the department, the authority's new policy would not appear to place them in default of discharging their statutory duties.
Baroness DAVID: My Lords, may I ask the Minister whether she realises that the Secretary of State said at the time of the Second Reading of the 1980 Education (No. 2) Bill that he hoped that local education authorities would continue to provide transport to denominational schools? Is that still the attitude?
Baroness YOUNG: My Lords, the words of my right honourable friend the Secretary of State must be read in full. The noble Baroness should refer to all his remarks, not to part of them.

DOGS: FOULING OF PUBLIC AREAS
3.3 p.m.
Baroness SHARPLES: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will urge upon local authorities in urban areas the desirability of taking steps to prevent the fouling of streets, pavements and open spaces by dogs.
Lord MOWBRAY and STOURTON: My Lords, the working party on dogs recommended that local authorities should continue to use their powers to make by-laws to prevent fouling and to ban dogs from places such as children's play areas, but it is for authorities themselves to decide what resources they can devote to making and enforcing such by-laws.
Baroness SHARPLES: My Lords, I thank my noble friend for that reply. Does he agree with me, however, that, as dog owners, we have a responsibility to keep our open spaces clean? Would we not be advised to follow the example set in New York and other States? In
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the State of California, owners are compelled to remove their pets' indiscretions. "Pooper-scoopers" are provided for this purpose, and there are waste bins in which the remains can be put. Would not this be a good piece of advice that we could give to local councils?
Lord MOWBRAY and STOURTON: My Lords, a clearing up law would pose considerable difficulties and problems of public acceptance and enforceability. We think that possibly it would be better to try to concentrate on preventing the fouling of places where the nuisance is being caused. As my right honourable friend the Prime Minister said last week in another place, it is a pity that dog owners do not take more trouble to see that their dogs do not foul, and we ought to try to help to educate public opinion in this matter.
Lord STRABOLGI: My Lords, as the notices about possible heavy fines which are displayed in many of the streets of London seem to have absolutely no deterrent effect, may I ask the noble Lord whether a single prosecution has ever taken place?
Lord MOWBRAY and STOURTON: My Lords, the answer, I am sure, is that there must have been some, but I cannot give the noble Lord chapter and verse. However, I can tell your Lordships that it is open to any member of the public to institute prosecutions when they see such an offence taking place.
Lord ELWYN-JONES: My Lords, may I ask the noble Lord the Minister whether or not a verse would do, even if there is no chapter?
Lord PARRY: My Lords, will the noble Lord the Minister accept that my Welsh border collie instructed me this morning that he is more interested in the tree replanting Bill which is to follow than in the Question which has just been asked?
Lord MOWBRAY and STOURTON: My Lords, it has already been pointed out to me that this question has a sexual connotation, but I do not want to go into that side of it.
Lord SHINWELL: My Lords, will the Minister be kind enough to explain how it is that we can solve the problem of Rhodesia and that we can deal most effectively with terrorists and yet we allow these dogs to act in defiance of the law? Do the Government really regard themselves, in those circumstances, as efficient?
Lord MOWBRAY and STOURTON: My Lords, we always know that the hardest people to control are our loved ones, and the dog is man's best friend.
Lord DERWENT: My Lords, the Question refers to the taking of steps. However, is not the real trouble that the taking of steps occurs after the footway has been fouled and that that is what is so annoying?
Lord MOWBRAY and STOURTON: Yes, my Lords, it is horribly annoying. I could not agree more. Enforcement is very hard. Local authorities can do more and the general public can do more.
Lord SOAMES: My Lords, may I suggest that we have had enough of this Question?

CENTRAL AND LOCAL GOVERNMENT
3.7 p.m.
Lord FOOT Lord FOOT rose to call attention to the need to improve the effectiveness of central and local government, to reduce overmanning in the public service and to restore the supremacy of a truly representative Parliament; and to move for Papers. The noble Lord said: My Lords, in opening this debate which stands in my name I will not disguise to the House that I approach this task with some misgivings. That is primarily because when I look around the House and, indeed, when I look at the list of speakers, I am acutely aware that there are very many of your Lordships who have much greater authority and experience to speak upon the matter of the reform of government than I can lay claim to.
However, I am gratified to notice that the noble and learned Lord the Lord Chancellor has been good enough to let this Motion catch his attention and that he is going to participate in this debate.
I say that because very recently I have had the opportunity to read the famous Dimbleby Lecture which the noble and learned Lord delivered, I believe, some two years ago. I heard it on that occasion on television, and I read it the other day—on both occasions with great profit. It is particularly satisfying to me that the noble and learned Lord is going to take part in this debate because nobody, and I say this with the utmost respect, has contributed more in recent times to the discussion of constitutional change in this country than has the noble and learned Lord. If we have done no more, my colleagues and 1, in putting down this Motion, than to enable the noble and learned Lord to have another platform, that is quite good enough.
The other reason for my misgivings is somewhat different. I cannot quite say how I shall get on, but, as at present minded, I do not think that I am going to say anything which is particularly controversial. That is a cause of misgiving to me, because in my family the view has always prevailed that if you say something which is entirely uncontroversial you are almost certainly saying something which is untrue—and vice versa. Therefore, what I will attempt to do, I hope briefly, is merely to present the scene, as it were, for the speeches which are to follow.
What I should like to do is to draw your Lordships' attention to, or, it would be better to say, to remind your Lordships of, two enormous changes which have taken place in the last 100 years in the social and political structure of this country—and, more particularly, have taken place during the lifetime of most of the elderly Members of the House, like myself. The first of them is one which was very much emphasised in the report of the Kilbrandon Commission, a commission of which I had the pleasure and honour of being a minor member. When we started out on the consideration of our task in that commission, one of the first things to be done was to try to assess how the country is governed today or was governed at that time, in the early 1970s. One of the things that impressed us most of all was to discover how enormous had been the growth in the scope and scale of government in this country over the first 70 years of this century. I do not want to weary you with

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any statistics, but perhaps I might quote two statistics from the Kilbrandon Report which serve to illustrate the enormous change which has taken place in the way in which we manage our affairs here in this country.
One figure is this. In 1900 at the turn of the century the number of civil servants at all levels in this country—that is central and local level—numbered no more than 50,000. By 1970—and this was the time, of course, when the commission were considering the matter—the number of civil servants, that is not industrial civil servants but people entirely concerned with the matter of government, had risen tenfold to 500,000, and I suspect that today the figure is that much greater again.
The other statistic which may serve to illustrate the matter is this: in 1870—and now I am going back 100 years—public expenditure represented only 9 per cent. of the national income. In 1970 that figure had risen to 43 per cent. of the national income. If I understand the latest statistics, the amount of public expenditure now is more than 50 per cent. of the national income.
Another way of looking at this is to compare the situation of the ordinary citizen in this country, say, at the turn of the century or perhaps 100 years ago. In those days the Government in this country were concerned in the main with foreign policy, with defence, with the raising of revenue, with the keeping of law and order, and very little else. There was—I have forgotten when it came into existence—a board of trade, but it was a comparatively minor office. If Mr. Gladstone or Mr. Disraeli back in those days had been asked what their policy was for the economic management of the country, you might reasonably have supposed that you would have received a blank response, because the economic management of the country was not at that time regarded as part of the business of government at all. Today this is the main preoccupation; indeed, the obsession of all Governments is the management of the economy.
One result of that enormous change in the way we manage our affairs is that it has added vastly to the complexity of the
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business of government. I stand aghast sometimes when I think of the burden that falls upon the shoulders of Ministers of the Crown, and the burden of course becomes heavier the higher you go in the hierarchy. One does not have to read the diaries of Richard Crossman to realise that if a Minister is in charge of a great department of state, with all the preoccupations of that, at the same time to play his proper part in the consideration of basic matters in the Cabinet and the like is imposing upon him an almost intolerable burden. It cannot surprise anyone if many of the indeed major decisions are made on the basis, so far as some of the departmental Ministers are concerned, of very little knowledge of what it is all about. That is one aspect.
As I say, 100 years ago the ordinary citizen in this country was scarcely aware of the existence of central government. It had very little impact upon him. Since then, of course, with increasing momentum, government intervention has spread out into every area of human life and we have these great departments of state given over to matters like health and social security, education, transport, the environment, energy, employment; all these are new creations of the last 100 years. Today the ordinary citizen of this country, going about his ordinary business, is affected by the business of central government and indeed local government almost every day of his life. That is the change in the structure of our society which has taken place since then.
The other great change to which I should like to refer briefly is what we call the technological revolution. What I mean by that for my present purposes is this: Over the last 70 or 80 years—or go a bit further back than that—ever since the discovery of the power of steam and, after that, other forms of energy, electric power, oil and now nuclear power, as we have learnt to master these new sources of power and we have applied those new sources of energy to the exploitation of the natural resources of the world, certainly in the great so-called developed industrial countries of the world we have transformed our environment and we have transformed our way of life on a larger scale than at any previous time in history. I suggest that presents us in these days with very im-

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portant questions concerning the way in which we are going to manage this new world into which we have emerged.
I do not need to speak about the benefits that have been derived from the technological revolution, but those benefits have been bought at a very high price. The most obvious example of that, of course, is the unlocking of the secret of the nucleus. What we did then was that we opened a Pandora's box which we can never shut, and now forever more—and this was one of the great turning points in the history of mankind—because we have acquired the capability to obliterate the species, because we have found that secret we can never unlearn the secret, we can never forget it, and we remain for ever more the prisoners of our own knowledge and the potential victims of our own ingenuity.
Let me pass from that to some less cataclysmic consequences to follow. One of them is that this technological revolution has only compounded the complexity of which I was speaking just now. So complex are matters today that we all now live, I suggest, enthralled by the expert and the computer, because there is no single mind which can comprehend the totality of the new situation in which we live.
In addition to that, and indeed perhaps more important than that, a further consequence of the technological revolution is that we have moved into a new interdependent world. Perhaps the most striking example of that which one could find (and one could find many examples) is the fact that we have all come to know of the so-called economic miracle of Japan. As everybody knows, and as the Japanese people in particular know, the whole of that vast economic structure which the Japanese have built up with so much efficiency and effectiveness is utterly dependent upon preserving the oil pipeline from the Gulf, because Japan does not produce one barrel of oil of her own and the whole of the Japanese economy, and indeed the life of the Japanese people, could be cut off if natural events prevented that oil lifeline from being kept open.
We are all now interdependent, both domestically and internationally. As a very young man I remember the General
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Strike and the coal strike of 1926. I refer to that for this reason. Your Lordships may remember that the General Strike went on for 10 days, but the mining strike went on for another nine months. So primitive was our society at that time, compared with our society today, that the country could manage and the economy could be held together despite the fact that not a ton of coal was mined in British mines over a period of nine months. In 1974 we discovered how drastically that situation has altered today.
Perhaps I may select another example of the way in which we have all become interdependent and dependent upon each other—the way in which we have all become, willy-nilly, whether we like it or not, members one of another. Take the electric grid which we have established in this country. With this wonderful procedure, by moving a switch or pressing a button one can direct energy from one part of the country to another; but, by the same token, if the people who have control of the switch or the button have a mind to, they can cut if off altogether and the life of this country would be paralysed perhaps within a period of 24 or 48 hours.
Internationally the situation is surely the same. One hundred years ago the ordinary citizens of this country were almost unaware of events abroad and their lives were almost unaffected by what might happen abroad. Indeed, the Government of the country could continue to manage the country's affairs almost undisturbed by events, however cataclysmic, which might happen on the other side of the Atlantic or in the Far East or even in the Middle East. We all know how that situation has changed. Today, wherever there is a situation of crisis or disturbance or conflict in any part of the world, whether it is political or economic, social or racial, we all know that the reverberations of the crisis can go round the globe within a period of 24 hours. From year to year we wait and wonder when there is going to be some final calamity or conflict, particularly in the Middle East. Economically in this country we are largely dependent, not upon our own efforts or what we do, but very largely upon what takes place abroad.
I draw your Lordship's attention to these points because I suggest that one consequence inevitably follows. It is

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that all Governments in this country, and indeed all Governments in the democratic developed countries of the world, nowadays work within severe and narrow margins. The area of manoeuvre available to any Government—in this country particularly but also in Western Europe and in the United States of America—in economic affairs especially, has been severely circumscribed.
I have ventured to make these, I am afraid, rather trite comments. Certainly I have been talking about things which will be familiar to all your Lordships, but I venture to put those propositions to you in order to pose a further question. Can we ask ourselves how far have we in this country in any recent times taken any steps in order to adapt our parliamentary system of government and our political institutions to this new world into which we have emerged? Change has been going on with increasing momentum over these last 70 years, and it will continue to go on at a headlong pace. What steps have been taken in this country, in this Parliament, in order to try to match our institutions to the vast changes which have taken place in our affairs?
I look back over the past 10 years—indeed, I think I can look back further than that, perhaps to the end of the war—and I can find only two occasions when we have even attempted to make any radical change in the constitutional arrangements of this country. One of them, which many of your Lordships will remember, was the attempt—if I remember rightly, something over 10 years ago now—under the Wilson Administration to get an all-party agreed reform of this Chamber.
The only other attempt which has been made to try to reform or to alter our constitutional arrangements was that made under Mr. Callaghan's Administration to provide a measure of devolution for Scotland and Wales. Both of them failed and I suggest that they failed for much the same reason; namely, neither of them was a genuine attempt, based upon some sort of constitutional principle, to improve the system of government under which we live. The proposals for devolution for Scotland and Wales were not put forward as a radical contribution to reform; they were put forward as a sop to what was thought to be Scottish and Welsh nationalism.
I suggest that the attempt that was made to reform this Chamber foundered for the same reason: it was an exercise in cosmetics. I venture to suggest that the only way in which this House can be reformed, short of abolition, is for it to be made representative. I do not mind very much who it represents but it must represent somebody. At the present moment, my Lords, none of us represents anybody except ourselves—and some of us do not even represent ourselves. As a matter of fact, I have always taken the view that if one compares the system of appointment of Peers like myself with the hereditary system it can be argued that there is a strong case to be made out for reverting to the hereditary system.
I say that because it is certainly arguable that those who come here under the hereditary system are selected and sent here by Almighty God rather than by the Prime Minister. When I took around the House, as I occasionally do, it seems to me that the Almighty is doing rather better than the Prime Minister even at that! To have the best of both worlds one would want to have Peers, of whom very happily we have two, who were originally selected by Almighty God and His selection was then endorsed by the Prime Minister. I refer of course to the noble and learned Lord the Lord Chancellor and the noble Lord, Lord Home.
I have spoken for longer than I intended, but may I conclude by saying that it is all too easy for us, I suggest, with our long history, comparatively speaking, of constitutional development—the steady enlargement of suffrage, the way in which we have carried on our parliamentary system from precedent to precedent, we who have lived longer than perhaps most people in the world under a system of parliamentary and democratic government—to believe that democracy is the natural order of things. There is no historian who would agree about that. If one looks out over the world as it is today, over more than two-thirds of the face of the world, there is nothing resembling democracy. Indeed, over most of that territory, there are people who have never known democracy in any shape or form. It would be the worst delusion of all for us to suppose that democracy is safe; that our parliamentary institutions will go on for ever. If democracy is to be defended, it has to be fought for and it has

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constantly to be revised in order to bring it to match the conditions of the time.
May I conclude by posing the question which I have tried to stress in what I have been saying, by quoting some words which will be familiar to all of you. Perhaps, because they are so familiar, they lose their ring of truth, but I would suggest that they are words of the most profound truth. They are the words at the beginning of the great speech which Abraham Lincoln made on the field of Gettysburg. May I remind your Lordships, if you need to be reminded, that that speech was delivered while the Civil War was still in doubt and the outcome unknown. The question which Abraham Lincoln posed to his people at that time was expressed in these words:
"Four score and seven years ago, our fore-fathers brought forth on this continent a new nation conceived in liberty and dedicated to the proposition that all men are created equal. We are now engaged in a great civil war, testing whether this nation or any nation so conceived and so dedicated can long endure".
I suggest that the question Abraham Lincoln posed more than 100 years ago is as urgent now as it was then. My Lords, I beg to move for Papers.
3.33 p.m.
Lord BRUCE of DONINGTON: My Lords, the House will be most grateful to the noble Lord, Lord Foot, for having introduced this Motion in these terms. I think that most of your Lordships would agree with the historical setting within which he put his remarks. The Motion itself deals with, among other things, the question of the effectiveness of central and local government. It is one of the three topics in the Motion. I respectfully suggest to your Lordships that we are indeed concerned with the effectiveness of both arms of government, but "effectiveness" by itself may be a slightly misleading term because, of course, one can have very effective government indeed, backed by all the forces of the law, if necessary by armed dictatorship and by secret police. It can be very effective, at any rate in the short term. That does not necessarily imply a good government, however. I would take it that for our purposes the terms of the Motion do imply good and effective government.
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As the noble Lord, Lord Foot, has so movingly reminded us, we live in a democracy. In the view of many, the principal aim of all democratic government should be to bring the greatest good to the greatest number. It may sound a very trite and simple way of putting it, but it is put in such terms as would, I feel, evoke the support of most ordinary folk up and down the United Kingdom. It is therefore important, when we are considering the improvement of the effectiveness of government, to view democratic government within that context.
I am not seeking to make a party political point or to develop a party political argument from it, but it would perhaps be wise if your Lordships would remember that we live within a democracy, and both central and local government endeavours to govern within its sphere within that democracy, within which the top 1 per cent. of the population own some 25 per cent. of its wealth, the bottom 80 per cent. own some 23 per cent., and there are various grades in between. So democratic government in the United Kingdom must function in circumstances in which there must be a degree of social tension and where there are great extremes of poverty and wealth within the society. By "poverty" I mean a sense of deprivation, which in many ways is the worst poverty of all—even worse sometimes than the deprivation of money. Democratic government has to function within those circumstances.
This is the last time I shall touch upon the question of policies involved, but it is with that overriding objective of bringing the greatest good to the greatest number in mind, within a context of the extremes of wealth and the social tensions that flow from them within a democracy, that Government has to govern as effectively as it can.
How can it function more effectively? It is very difficult for Members of your Lordships' House who have not been members of Government—and I myself have not—to commend to your Lordships what effectiveness should really constitute, outside the improvement towards the broad general objectives which I have stated. I am convinced, however, that to have effective government within a democracy (and I think the view may be widely shared among your Lordships)

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one has to have much more contact between the governors and the governed; there has to be a greater degree of contact between Government and the people. It is very easy when one is involved in a specialist task, either as a Minister or as a civil servant—under the pressure of events, the extreme pressure of paper, the pressure even of legislation—to begin to fall into the trap of thinking of people as numbers, or as digits, or as units, instead of living individuals.
Therefore, the more contact that can be cultivated between the Government and civil service and the public the better. From which it follows—and the point has been made many times over the last few months in another place and has been alluded to here—that the Government must be less secretive. In the United States in recent years they have brought in a Freedom of Information Act, which does ensure the dissemination through the press and other media of details of Government activities, which I am quite sure many Government departments here of a similar nature or engaged in similar functions do their very best to keep quiet so long as they conceivably can. This has been alluded to many times in connection with the Official Secrets Act. I think, therefore, that to improve effectiveness one does have to be far less secretive in the various matters with which the Government are dealing.
Then again, may I respectfully suggest to your Lordships that to be effective the legislation must be a good deal clearer in text and in explanation? I speak with some feeling here as one whose profession brings him in constant contact with the provisions of the Income Tax Act 1970, the succeeding finance Acts and the mass of tax cases that follow from the existing tax laws. They are far from simple. I cannot help feeling that, consistent with the very natural desire within a democracy to protect the equity rights of individuals by making a whole series of exceptions and by particularising legislation, much of the legislation that comes from another place, even before it gets there, ought to be expressed in much clearer terms.
The other way in which I would respectfully suggest that Government effectiveness can be increased was alluded to by the noble Lord, Lord Foot, when he mentioned the tremendous load on
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Ministers of the Crown. This applies whichever party happens to be in Office. Many of your Lordships may have been entertained on the screen recently by a television series called "Yes, Minister", which does illustrate somewhat graphically the relationships that may be thought by many to exist between Ministers of the Crown and their leading civil servants. I have had no recent experience in the Ministry portrayed in the particular series, although I was very intimately concerned in the Ministry of Health, Housing and Local Government with the late Aneurin Bevan from 1945 to 1950. Things may have improved since then, but I cannot help feeling that there was more than a substantial element of truth in the film as presented. One has to be a very strong Minister indeed to enforce one's will through ministerial control of a civil service department.
I have for a long time thought—and I put forward the concept to your Lordships—that some consideration ought to be given to taking a look at the French system of Ministers appointing a chef de cabinet from their own party, a deliberate party choice, who would deal with a very considerable proportion of the paperwork that comes into the ministerial tray. It is common knowledge that if you want to tame a Minister the best way to do it is to make quite sure that into his in-tray or on to his desk comes the maximum amount of paper, usually commencing "The Minister might think", "The Minister might consider", "The Minister might give consideration to" or "The Minister might reply". There then follows a detailed memorandum which the Minister feels compelled to examine, in the same way as there is a natural impulse, even in a commercial office, when the telephone rings, to pick it up. A very erudite permanent secretary, a very resourceful permanent secretary who desires to keep his own departmental ideas intact has a very easy way of seeing that his Minister's nose is kept to the grindstone by bringing the maximum amount of paperwork in front of him. The appointment of a chef de cabinet, a political appointment, to sift through this material before advising his Minister would give the Minister much more freedom to think constructively and to formulate his views to put to his colleagues in Cabinet, and indeed it would give him a certain amount of personal freedom.

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As it is, many Ministers—or so it was in my day—frequently cannot get to bed until two o'clock in the morning, after they have been through their dispatch boxes, read through the Foreign Office telegrams and dealt with the various minutiae that their permanent secretaries cause to be put in their boxes. I cannot help feeling that it would not do violence to the English system of government if such a concept were adopted. No vast question of principle is involved. It would mean that the minds of Ministers would be freer to roam over the whole range of problems upon which their views are required in Cabinet when discussing most important issues, rather than being too heavily immersed in details.
My Lords, the Motion makes mention, in connection, presumably, with discussing effectiveness, of overmanning and ways of preventing overmanning. As long as I have been in politics people have been complaining about the overmanning of the Civil Service. That has been a political ball that has been tossed to and fro across the House, both here and in another place, for as long as I can remember. It is a very popular call. But your Lordships will, I am sure, agree that where there are statutory functions to be performed where the Government of the day lay obligations on departments or lay obligations on local authorities, and, in order to ensure that these things are done in the way Parliament wishes them to be done, a certain amount of manpower is needed.
As I understand the position, the present position is that there is an organisation and methods unit within the existing system of administration. They have their own ways of evaluating the time taken to do a task, the number of people required to do it. I am given to understand that Sir Derek Rayner is already advising the Prime Minister as to what economies may be made in that regard. I would think it highly likely that economies can be made. I know of very few organisations, including commercial and industrial ones, where economies cannot be made, not only on the floor, where people are prone to mention restrictive practices, but also at much higher levels. One matter I am certain about is that if there is to be a reduction in manning levels, then those reductions must start at the top because
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there is no other way of reducing—one reduces at it were, in the enlarging pyramid fashion. It is no good reducing a few minions at the lower levels unless there are cuts at the top.
The final part of the Motion refers to the necessity of restoring "the supremacy of a truly representative Parliament." I am completely in agreement with the sentiment that lies behind that expression in the Motion. I have said many times that Parliament must, in fact, be seen to be supreme in the United Kingdom. It must not be seen to be, and it must not be, subordinate to any sectional interest because otherwise there can be no true progress, in a democratic sense, through the parliamentary institutions. However, to say that and to achieve it is another matter altogether. Parliament itself must be made more effective for that happy state of affairs to be reached.
It would be presumptions of me, as a Member of your Lordships' House, to make an undue number of recommendations that might affect the lower place. But like your Lordships, I am a United Kingdom citizen and I propose to express my views upon the subject. Whether those views will find favour in another place is another question altogether. Of one thing I am quite sure: for there to be a truly representative Parliament and to restore its supremacy, there needs to be much more intensive political education on the issues of the day in the United Kingdom, and a very considerable responsibility lies upon all the political parties to ensure that that is so. It is, of course, also a responsibility of the media, but I shall return to that in a few minutes.
There must be a better system for the adoption of candidates if we are to restore or indeed enhance the supremacy of Parliament. As is well known, the United States has a primary system which enables the general public to have some say in the selection of candidates. I am not sure that we could adopt that system here, but I am quite sure that we must take far more effective steps right the way across the board affecting all parties, to ensure a more representative and acceptable selection of candidates. That matter is, to some extent, linked with the question of the pay and conditions under which Members of Parliament work.

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Your Lordships will remember the noble Lord, Lord Boyd-Carpenter, some three or four months ago, advocating significant increases in the salaries of Members of Parliament. I wish entirely to endorse his words. It really is scandalous in the United Kingdom that our parliamentary representatives in another place should be paid such a derisory sum in relation to the services that they perform and the duties that are thrust upon them. When one considers the level of salaries in other countries which do not raise even a flicker of interest among the public—for example, in Germany where they get about £25,000 a year, and the United States where they get very much more—one realises that the amount of remuneration received by Members of Parliament in the United Kingdom is quite disgraceful. It can only be said that the Governments of all parties seem to have been so terrified by the reaction of the printed media to such suggestions, that they have not had the courage to do what is vitally necessary.
Moreover, it is a question not only of salary, but of facilities. One of the ways in which Parliament can become more representative and more effective in itself is to provide individual Members of Parliament with much greater research facilities. Those are provided as a matter of commonplace in other countries. There is no question at all that the deliberations in another place, some of the quality of argument in another place, and some of the quality of legislation that comes from another place, is profoundly influenced by the fact that so many Members do not have really adequate research facilities to enable them to go fully into all the subjects and matters with which they are required to deal. I hope that some improvement can take place in that connection.
Finally, the need to restore the supremacy of Parliament and its prestige should, in my view, be more appreciated by the printed media. We have some of the most brilliant journalists in the world in this country: I wish that I could say the same about some of the national newspaper editors who seem, over the years, to make it their business—if they have the slightest excuse for doing so—to bring or to try to bring Parliament into disrepute. They ought to realise that a very great responsibility lies upon them, and I am not talking in the narrow party sense, nor do I wish
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to emphasise over-much the great political disparity that exists in actual press coverage. But, I am quite sure of that responsibility, and one would hope that national newspaper editors will face up to it.
We are all agreed on the necessities which are implied in the Motion and which have been so eloquently expressed by the noble Lord, Lord Foot. We on this side of the House would wish to give him our support.
Lord WOLVERTON: My Lords, before the noble Lord sits down I should like to ask him one question. I did not want to interrupt during his speech but he spoke of overmanning, which is a very important matter. Does he not think that Parliament is somewhat to blame in asking central Government and especially local government to implement too much legislation at one time which, as he rightly said, has to be implemented but which requires much more staff? I spent a good many years in local government and I observed with my own eyes that we had to employ staff to implement the legislation and then we received the blame.
Lord BRUCE of DONINGTON: My Lords, I was not discussing, of course, whether the other place and this House were putting through too much legislation. I assume that the effectiveness of government could be assessed against the ability of the administration to deal with the legislation that is passed through Parliament. I was not expressing a view as to whether we legislate too much or too little. The short answer to the noble Lords's question is that I think that in some fields we legislate too much, but in other fields we legislate far too little.
Lord ANNAN: My Lords, before the noble Lord sits down will he say as regards the restoration of a representative Parliament whether he has any views about your Lordships' House? Is he in any way inclined——
Lord LYELL: My Lords, I think that possibly the noble Lord should ask a simple question. I think that it would be the wish of your Lordships' House that we proceed to the next speaker.
Lord ANNAN: My Lords, very well. Does the noble Lord have any views about your Lordships' House?
Lord BRUCE of DONINGTON: My Lords, yes.
4 p.m.
Baroness ELLIOT of HARWOOD: My Lords, I rise with some hesitation to take part in this debate, because last week, when I put my name down to speak, it was because of the first part of the Motion of the noble Lord, Lord Foot:
"To call attention to the need to improve the effectiveness of central and local government".
I listened with great interest to the noble Lord's very remarkable and very interesting speech. I was a little anxious because it seemed to me that he concentrated a good deal on the 19th century, on the early beginnings of Parliament and on what happened in those years, when he mentioned both Disraeli and Mr. Gladstone. The only contribution that I can make to that particular aspect is that, although I was not very old, my brother-in-law, Mr. Asquith, was Prime Minister from 1908 onwards for quite a long time, and before that my father was in Parliament in 1869. Whether either of those facts allows me to make my remarks today in a more up-to-date and modern manner, I do not know, but I thought that it was worth mentioning to the noble Lord, Lord Foot, that if he goes back as far as that, I can match him a little.
This debate is very interesting. I do not often agree with the noble Lord, Lord Bruce of Donington, but today I agreed with everything he said. Therefore, I hope that, to start with, that puts me in his good books because what he said, in particular about the underpayment of Members of Parliament, is something about which I have always felt very strongly. For many years my husband was a Member of Parliament and he was for ever bringing up the fact that in his day people were paid £400 a year, and they thought that was a very large salary. Every time he raised the subject he was criticised for doing so. Today I agree with the noble Lord that Members of Parliament are not paid as much as they are in other countries, but they are paid a more respectable sum of money than they were 30 or 40 years ago.
My intention in making a speech today was to concentrate on the problems of local government, as that is something I know a little about. I have spent some
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29 years of my life on the county council at home in Roxburghshire, and the suggestion made by the noble Lord, Lord Foot, that we could improve both local and central government attracted me to this debate. We do not appreciate enough the fact that local government must, first and foremost, be local. It must be different, and local government representatives have a different part to play from Members of Parliament who represent constituencies. Of course, the politics of Westminster play an enormous part in local government, as to some extent they influence which person wins a seat in local government. But there is a great deal of local government which has absolutely nothing to do with politics at Westminster and which, as we know, is financed out of local rates. The job of local representatives in local government is to be as local as they possibly can.
Although Westminster has great influence, the real point of being a local government representative is that one must be absolutely down-to-earth, understand and know the area which one represents. I believe that this Government are right in restoring to local government many of the responsibilities which have been taken away in other legislation by other Parliaments. I should like to feel that more is being done to restore to local government as many responsibilities as possible, as it is its job to know what suits a particular area best.
That brings me to local elections and the responsibilities of local members. I speak primarily about Scotland as that is the area I know best and where I was a local representative. I gave evidence in Scotland to the last Royal Commission on Local Government. Looking back, I am sorry that I did not stress more the importance of small, rather than large, regions and districts. Members of Parliament can have large constituencies: local government constituencies should be small.
I am not in favour of areas such as Strathclyde in the West of Scotland, where almost half the population of Scotland live. It is quite true that when we debated the Scottish Local Government Bill we had an all-party discussion in this House which recommended that the great area of Strathclyde should be divided into four, which in my opinion would have been very much better; Argyll and the Isles in one

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area, Lanarkshire in another, Ayrshire in another and Glasgow and Dunbartonshire in the fourth. Noble Lords may say that that is too small and local a point to make, but it illustrates what I mean. Here, in this House, we passed a resolution—which was backed by all parties—in which we favoured those four regions rather than one. Unfortunately, when it went to the House of Commons they did not agree and the matter was overruled. As a result, we have, as we know, the enormous area of Strathclyde. Personally, I think that that is wrong, but that is what happened.
I know less about the re-organisation of local government in England, but I have heard many complaints about the break-up of counties with long traditions, such as Yorkshire, Lancashire, Gloucestershire and many others. The upheaval of these changes, which I am sure were carried out in good faith, is not yet complete and the re-organisation has not yet settled down. I have discussed this with many friends who are now in local government in the new setup. I am not; I resigned when the old organisation came to an end and the changes took over. My friends tell me that it cannot be changed again because the re-organisation has only just started, is only just settling down and that we must give it a chance, otherwise any further upheaval would be disastrous.
That may well be so, and I am prepared to wait; but I believe that this re-organisation has not really improved our local government, which we are anxious to do in this Motion. I should like to make a further comment on the importance of the interests of the locality being the chief interest of the person who represents it in local government. I think that the noble Lord, Lord Foot, agrees with me about this because he mentioned it. However, in the last re-organisation I think that we went about it in the wrong way; and, as said, I am sorry that I did not realise what it would mean when I backed it in giving evidence to the Royal Commission.
I thought that the noble Lord, Lord Foot, would probably talk about electoral reform, because that has been one of the great bones of contention of the Liberal Party for many years, and many different kinds of electoral reform have been suggested at various times. Like every Member of Parliament and every Member of your Lordships' House, I have thought
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about it, studied it, discussed it and sometimes been influenced one way and sometimes another way. However, after much thought I have come to the conclusion that I prefer the present system. I believe that it makes for a more stable central Government, even though at times the Government that the country elects are one of which I strongly disapprove. But the fact remains that the Government then have authority; they are a Government which the people understand and know.
Looking back to the years before the war, we saw the number of changes which took place in France because of the methods they used for their electoral system, which made for great instability. If I remember rightly, a government lasted for five years but within those five years it could change over and over again to different kinds of coalition, and that led to great instability.
Lord SOMERS: My Lords, will the noble Baroness allow me to intervene? I remember that era very well. Was not that due rather to the proliferation of different parties than the electoral system?
Baroness ELLIOT of HARWOOD: My Lords, the enormous number of parties was caused by the electoral system, otherwise they would not have had them all. This was an absolute disaster, and I should hate to see that kind of thing happening again. The same thing happened before the rise of Hitler in Germany when the Weimar Republic was not very strong, and the changes which took place were very detrimental to the government of Germany at that time. Out of that instability arose the Nazis and the Hitler régime.
You may say that those things would not happen again, but they might, and I should therefore prefer to have the first-past-the-post system. I know that this does not meet with the views of the Liberal Party, but I still think it is better for this country and would make for a stronger Parliament than any other system. Our whole system of government is based on the authority of one man, one vote. Although it means one party in and then sometimes out, while the party which forms the Government is in, it will, and does, have a proper majority.

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The noble Lord, Lord Bruce of Donington, said that he thought that the supremacy of Parliament was absolutely vital and something we must all support. This system that we have makes Parliament supreme, and I do not think that a change in the electoral system would really be a help. This debate is enormously important and interesting, but if we are to have the close liaison and close rapprochement that I like to see between the electorate and its representatives, whether they are in local government or in central government, one must keep this particular system of election because it brings government closer to the electorate than any other.
Viscount HANWORTH: My Lords, before the noble Baroness sits down, may I ask her whether she realises that proportional representation can be arranged to give one party a clear majority? As I understand it, that is precisely what is happening in Germany.
Baroness ELLIOT of HARWOOD: My Lords, I said in my speech that there are a great many different kinds of proportional representation. I have looked at them all. I have studied the German system as well as the others and I still come to the conclusion that I prefer to have our existing system which, after all, has lasted since 1832 and is on the whole, one of the most successful systems in the world today.
4.14 p.m.
Lord MONSON: My Lords, I should like to join other noble Lords in thanking the noble Lord, Lord Foot, for giving us the opportunity to discuss these vitally important matters. I shall not attempt to follow the noble Lord in his extremely impressive, wide-ranging, and witty speech. Apart from anything else, I was only persuaded to take part in this debate at very short notice, and I shall not therefore be putting forward a detailed, comprehensive, or carefully constructed argument. Instead I should like to toss a few random ideas into the ring in the hope that they may, with luck, provide some useful food for thought.
The first two prongs of Lord Foot's Motion, the need to improve the effective-
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ness of central and local government and the need to reduce overmanning, are closely inter-related, because reducing overmanning would, in itself, go a long way towards improving the effectiveness of central and local government. An enormous amount has been written in the press about the need to improve public service efficiency over the past few weeks and months, but relatively little progress, or at any rate relatively little willing progress, seems to have been made, even though it is axiomatic that anyone who works in any capacity at any level for any organisation invariably knows of areas within the organisation where waste can be eliminated and efficiency improved.
Why therefore does there seem to be almost a sullen reluctance to co-operate for the most part among the public service employees and public service unions? Surely the answer is this: in a private enterprise organisation there is every incentive both to put forward one's own suggestions and to co-operate upon enacting other people's suggestions for improving efficiency and cutting costs, because if these suggestions are adopted they are likely to help the firm in question to outstrip its competitors and to capture a larger share of the market; whether the home or export market. From this success will flow benefits both tangible and intangible for the employee, including the pride and the enhanced self-esteem that come from being part of a successful and expanding organisation, and the more tangible benefits of higher pay and increased promotion prospects. In addition, many employers will pay substantial cash benefits to individual employees who put forward workable suggestions for improving efficiency.
In the public sector things are very different; because in this sector increased efficiency will not lead to expansion and to the prospect of basking in reflected glory, nor to enhance promotion prospects—indeed, in many cases, very much the opposite. All the more reason, therefore, given that it is unreasonable in peacetime to expect people to act in a manner contrary to their own economic interests, to try to make it financially worth while for civil servants and local government employees to co-operate in reducing overmanning and in improving efficiency generally.

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A very dramatic break with precedent it may be, but surely it cannot be beyond the wit of man to devise some way in which public employees who co-operate in improving efficiency can share some of the fruits of that increased efficiency, on a once-for-all basis, and outside the normal salary and pension structures. If the civil service and local government could also see fit to emulate the example of the more enlightened private employers and award substantial cash bonuses to employees who have put forward cost-saving schemes which are then taken up and put into operation (whether these relate to their own or to another department), this would be more effective still.
I now turn to the third prong of Lord Foot's Motion. I must admit that Lord Foot wrong-footed me here: like the noble Baroness who has just sat down, I expected him to be riding the traditional Liberal hobby-horse of proportional representation. Instead he spoke of the non-representational nature of this noble House. I very much have my own ideas on this but I shall not develop them this afternoon: instead, I should like to revert to proprtional representation, given that there is such a large proportional representation lobby in your Lordships' House.
It is all too readily assumed that those who support PR are on the side of the angels; that all right thinking, fair-minded people favour PR of one sort or another, while only the cynical adherents of one of the two major political parties in this country, the Conservative and Labour Parties, prefer, for reasons of self-interest, the first-past-the-post system. Like the noble Baroness, Lady Elliot of Harwood, I should like to dissent strongly from that viewpoint.
I can think of at least two objections to PR, although there are undoubtedly others. The first, and probably the less important, is that only rarely are the results strictly proportional, whatever the method chosen: the list system, the single transferable vote system, or whatever. Therefore, the moral case for PR is weaker than is generally claimed. For example, in the recent elections for the 80 black seats in what is now Zimbabwe, Bishop Muzorewa's party obtained only three seats, as his opponents and opponents of the short-lived internal settlement never tire of telling us with glee in their
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voices. However, had the representation been strictly proportional, which it was not, his party would have obtained seven seats—in other words, more than double the number.
In global context that is, no doubt, a fairly minor matter. Far more important are the adverse practical consequences that can occur when a country deviates from the superficially illogical and superficially unfair—I stress the word "superficially "—first-past-the-post system of electing a parliament or assembly. Consider two of the world's most volatile flash-points, Israel (by which I mean post-1967 Israel) and Cyprus (by which I mean post-1974 Cyprus). In the first case, Israel, the entire peace of the Middle East, together with the West's vital oil supplies, are threatened by the Begin Government's policy of planting Jewish settlers in Arab lands in the occupied West Bank. I doubt whether this policy would ever have been adopted had not the electoral system allowed the extreme religious parties, representing only a very small segment of Israeli opinion, to hold the balance of power.
The impasse in Cyprus may be slightly less of a threat to world peace—though it certainly weakens the southern flank of NATO—but it is extremely worrying nonetheless; the longer it continues the more attitudes harden into total rigidity. While the Greek Cypriots must certainly make wide-ranging concessions, some concessions are also necessary from the Turkish side if peace is to be achieved. Unfortunately, successive Turkish governments, whether headed by Mr. Ecevit or Mr. Demirel, have been hamstrung by their dependence, tacit or open, on the extreme religious National Salvation Party headed by Mr. Erbakan and, to a lesser extent, on the even more extreme right-wing National Action Party led by Colonel Türkes, which, because of the electoral system, have tended over the past few years to hold the balance of power in Turkey and which can always successfully bang the jingoist drum whenever the slightest concession over Cyprus is suggested.
It may be argued that Britain is a long way, both geographically and psychologically, from the Near East. Nevertheless, I do not want to see the balance of power in this country held by small minorities—

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whether extreme or moderate ones is of no great consequence—who can then exercise power out of all proportion to their numerical strength in the country. For that reason I, too, think that the present system, for all its undoubted faults, is the lesser of two evils.
4.23 p.m.
Lord MACKIE of BENSHIE: My Lords, I wish at the outset to thank my noble friend Lord Foot for proposing the Motion and for doing so in such a way as to give it its full worth. I believe it to be true to say that the opening speech did much to vindicate this House, and the quality of it is part of the argument which we use when we try to defend this noble House. I am sure that the speech in reply will be equally good and of such a high level as to make all of us in your Lordships' House think. I am also grateful to my noble friend, who is surely the best of all the "Feet", for proposing the Motion in such a way as not to take away the whole of my little piece, which is to comment on proportional representation. I am also grateful to the noble Baroness, Lady Elliot of Harwood, and the noble Lord, Lord Monson, for opposing PR because there is nothing worse than following a speaker who has already made one's case.
In considering what has happened in this country, I suggest we should look at our personal experience. I was 20 when the last war broke out and, like so many of your Lordships' I went off to the war. Six years later I returned—luckily, to a good farm; that of Benshie in Angus—a proud man; I was proud of the part played by our generation and this country in the war. I was proud of the way other people in the world thought of us, and I felt certain that our generation would make a tremendous difference, would advance the cause of human happiness for the greatest number and would solve a great many problems which had been facing previous generations. I felt that we had the tools, the instruments and the techniques to do those things. Furthermore, our generation was not decimated, as was the generation who fought the first war. We had our industry intact, we were in a position to play a marvellous part and take a lead in Europe and to open up the great new world which all of us
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in this country sincerely believed and hoped was coming.
That was our position then; but today we are looking at the wreck of our hopes. At that time, at the end of the war, we were the richest country in Europe, proud and eager to advance. People were looking to us for a lead; but now, economically, we are at the bottom of the league with Italy, and are treated not with contempt but with the hope in Europe and the rest of the world that signs of revival will appear here and that Britain will once again play its part in world affairs, take a lead and show what can be done. But we are not treated with the respect or even the liking that we should be.
As my noble friend Lord Foot said, we must examine our institutions. It is no good saying that when we became great we had a two-party system in this country. As Gilbert said:
That every boy and every gal,
That is born into the world alive,
Is either a little Liberal,
Or else a little Conservative!"
It is a great pity that is not the case; the "beastly Socialists" have spoilt it all. It was an entirely different system and the Members of Parliament were entirely different. Today, such is party discipline that if a man loses his seat he often loses his livelihood as well. In the old days, MPs were largely of independent means. They might lose their seat and spoil a political career, but they could still return to the plough or to a comfortable and respectable existence. Today, very often party managers can take away a man's livelihood as well as his seat.
While it is impossible today only for people of independent means to enter politics—it would be a had thing if that were the case—we must do something about the situation in which extreme party discipline has landed us. It has landed us in a situation where I think all Governments, except one, since the war have actually governed on a minority vote. Indeed, in recent years no Prime Minister addressing 100 people in this country could count on the real backing and support of more than about one-third of those people whom he or she was addressing. The two-party system which we have at present, the first-past-the-post system, must have something to do with our decline.

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The noble Baroness, Lady Elliot of Harwood, spoke about France. They used to say of France between the wars and in the early post-war period, "She may change her Government quite often but she never changes her policy". I believe that has been true, although it has not been true of us, and one need look at only two examples, one glaring one, namely steel. Look at the mess we are in now. It must be due to the fact that nobody knew what was happening. As everybody knows, we nationalised steel, we denationalised it, and we renationalised it. Now we do not really know what we are to do with it, except hire someone from outside and hope that he can put it right. The same is true about pensions policy. These are all very important matters.
The lack of continuity must be responsible for many of the evils in this country today and for the decline that we all know we have suffered. I am certain that the system has much to do with it. The noble Baroness, Lady Elliot of Harwood, my friend, though not my political friend, said that we get firm government, we elect a Government. We do not get firm government at all; we get easy government. The Whip system means that we can pass legislation easily, and if everyone in one's party is tyrannised, they will obey the Whip. So we get easy government. But that is not to say that we have good government—and the results certainly do not show it.
We have a simple example today. Mr. Prior is putting through Parliament a Bill in order to try to legislate for the evident ills caused by trade union mismanagement, or call it what you will; but that it exists nobody denies. That we need legislation nobody denies, least of all the Labour Party, who had In Place of Strife, and who turned down a good Bill due to lack of courage. We know that we need legislation, and we all know that Mr. Prior's measures are half measures. We all know that Mr. Prior would like to put through better measures. We in the Liberal Party wholly support his approach. We consider that he is handling the matter enormously well. We do not want to force a confrontation. But why must he do this? He must do it because the TUC has no respect for the Government. The TUC regard them as part of the see-
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saw—Buggins' turn. The TUC says that it is to have a great nonsense on 14th May, when it is going to show the great will of the country, turn the Tories out, and get back its own puppets who will then proceed to do what it wants.
A large part of this disrespect for government arises because government is not representative. We can have whatever system of PR we find suitable for this country—not every system is suitable. Certainly modifications of the German system might suit us. We in the Liberal Party have long advocated the single transferable vote, which works extremely well in Ireland; indeed, it has produced an entire majority Government in Ireland.
Whatever the system, there is no doubt that we must have representative government, and that the only way to restore the supremacy of Parliament, to restore its respect, is by it being seen to be fair and to represent the mass of the nation. If this requires negotiation in order to form a Government, all the better. After the negotiations are over that Government can act firmly and wisely, and they will hold the respect of the people.
One factor that is true is that no longer are we in a situation of people desperately defending their own particular little rise above the level of starvation against the starving millions who want to take it from them. In this country we have had untold wealth compared with the poverty in which past generations have lived. We are in a position in this country in which the matters that unite us are infinitely greater than those which divide us, and we must change our political system, in particular our voting system, if we are to make the advance that we must make.
4.34 p.m.
Viscount HANWORTH: My Lords, first, I should like to thank the noble Lord, Lord Foot, for introducing the debate. For me, it occurs on a most unfortunate day. I should now be in the Committee on Consolidation of Bills, and there is always the question as to whether that committee has a quorum. Furthermore, I am to host a party in the Cholmondeley Room, and therefore, with your Lordships' indulgence, I should like to leave immediately after I have made my speech.

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It was on 22nd May 1974 that I was fortunate enough to be able to initiate a full Wednesday debate on
"the need to consider what changes could usefully he made to our party and parliamentary system to bring it into line with present-day needs and to improve the functioning of our democracy"
Since then I have spoken a number of times on this theme. If a situation has not changed to any great extent, it is always tempting to repeat what was said previously, and one noble Baroness in this House has certainly shown the success of this tactic. However, today I shall concentrate on a very limited number of matters.
First, I shall deal with the need for change. If you look back on our society to even 20 years ago, you will appreciate the enormous changes that have occurred. Religion no longer plays an important part in affecting the mass of people's thinking and ideals. Without a belief in an after-life, it is only natural that people should become more selfish, and a humanistic view has led to what I would say is, taking the condition of the world as a whole, an excessive concern with the prolongation, rather than the quality, of life itself.
The pressures which are now exerted by pressure groups and by the unions are in their extent quite new. There have been enormous advances in technology, and these are affecting the whole of our society. Television is now in almost every home, and the silicon micro-chip will have a profound effect for better or for worse. Not only do these things affect our own society, but in many cases we must take into account the needs and aspirations of the developing countries and the world as a whole.
Despite all these changes, we have hardly considered what modifications ought to be made to our parliamentary system. We seem to imagine that what worked well in the 19th century is equally suitable today, without any change. It is just this attitude to change which has led to Britain's economic decline. In the political field we have sheltered behind the idea of being the Mother of Parliaments and in industry, until quite recently, we have sheltered behind the idea that Britain made the best engineering goods in the world and it was the customers' misfortune if they did not buy them.
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As I see it, our major problem in government is the confrontation between our two major parties, which results in the ship of state steering a very erratic course indeed. As has already been mentioned, an example in this has been the nationalising, denationalising and re-nationalising of steel. As I said in a previous debate, I believe that under the present parliamentary system it is unlikely that inter-party agreement can be obtained on an approach to solving some of our major problems; but I think it is even more unlikely that we shall solve them without it.
For this reason alone—and there are many others—I would press for proportional representation, preferably on the German lines. There is no need for the party securing the majority of votes not to he given a majority in Parliament. This, as I understand it, is precisely what the German system ensures. I know that there are valid objections to this proposal, but, overall, I consider the case for proportional representation overwhelming at this time. With that view, it seems to me strange that people who talk about democratic forms of government should not be prepared to make it slightly more of a reality where there is an obvious and reasonable way of doing so.
The second matter on which I believe change is essential is to have a written, or partially written, constitution. Major changes in our constitution should be made only by a large majority clearly representative of public opinion. As things stand, our constitution could be radically altered by a Government elected by a minority of votes and activated by a small number of extremists. Never mind the abolition of the House of Lords as such, but abolition of a second Chamber, with the Commons as they are at present, would surely be a disaster and might even lead to some form of autocracy. We hear too much about the merits of the duly-elected representatives of the people when, in practice, only their party counts, except in marginal cases. And who exactly do the union ticket representatives really represent, if anybody? Logically, if we are to reform the House of Lords it should be in a context of reform of Parliament as a whole, starting with the Commons. Some people seem to have forgotten that the survey made by the Sun newspaper in January 1977 showed

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that seven people out of 10 were in favour of a fairer voting system, 70 per cent. thought the House of Lords a good thing, and nearly 60 per cent. did not want it reformed. Only 10 per cent. were in favour of abolition.
Thirdly, I believe that both the Conservative and Socialist Parties should be freed, to some extent, from financial dependence, on the one hand, on big business, and, on the other, on the unions. The latter I consider particularly insidious until the unions can set their own affairs in better order. Fourthly, there is a problem in extending the catchment area to attract really able representatives for Parliament and for local councils. The catchment areas for really able men have decreased over the years. Barristers now find it difficult, if not impossible, to stand for Parliament; part-time directorships are much less available; and transfer between Parliament and industry does not occur on a temporary basis at all. As regards the latter point, the trouble, I think, is undoubtedly that Parliament is no longer respected. People feel that the problems facing us today need serious consideration. The conduct of affairs in another place may have been amusing in the past: it is no longer considered to be so by the common man.
My Lords, I have mentioned only four areas where I think urgent change is necessary and could be achieved without too radical an approach. There are, of course, many other areas to which thought could usefully be given; for example, the relatively new and insidious doctrine of party mandates. Finally, overmanning in the public service is caused to a great extent by unnecessarily complicated legislation, which requires too many people to administer it. There are some 30 different types of benefit available to disabled persons, and the take-up of benefits as a whole is appallingly low. You need to be rich enough to employ an accountant in order to claim what may be your entitlement.
4.45 p.m.
Viscount THURSO: My Lords, like other noble Lords who have spoken before me, I should like to thank my noble friend Lord Foot for the magnificent way in which he introduced his Motion to your
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Lordships' House. But if Lord Foot was talking about the whole edifice of government, I really want to deal only with some parts of the foundations. In today's Scotsman newspaper, under the headline,
"Young Scots to fore in drift to London",
there appears the following report:
"A higher proportion of the young homeless and jobless, seen by a London hostel, are from Scotland than from any other part of the United Kingdom.
"Last year 558 Scots, aged between 16 and 25, called at the Soho hostel, Centrepoint, seeking shelter and help.
"The number … increased substantially last year. …
"Mr. Nicholas Fenton, co-ordinator of Centrepoint, writes in the report, … 'I have been asked a number of times by reporters and interviewers … why do so many young people still come down to London? … it is clear to me that increasing poverty must be the triggering force. Poverty of job opportunities, poverty of housing possibilities, poverty of spirit. The latter is beginning to spread wider, like a stain amongst the young people we see'."
My Lords, what an indictment of today's government, both local and national! How clearly ineffective is government in oil-rich Scotland if young folk are leaving their homes in a steady stream to look for opportunities which they cannot find North of the Border! Clearly at no level are the Government giving the kind of confidence or leadership which is able to get through to young people; and clearly, in Scotland, there is a need
"to improve the effectiveness of central and local government".
In local government in Scotland, this Government are reaping where their predecessors sowed in 1973. The brave new local government world which they sought to create by the Local Government (Scotland) Act has proved to be a mirage, and that shining new instrument of local administration looks pretty tarnished today.
In proposing the establishment of the new regional and district councils, the noble Lord, Lord Polwarth, speaking in your Lordships' House said:
"We believe that we are not only creating a framework for the effective management of local services but also that we are securing for local government a standing more independent of central government than has been possible till now".
Oh, dear! Oh, dear! How disappointed he must feel in the event, and how disillusioned will be those who believed

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that a new independence was being granted to local authorities, as they watch the Secretary of State for Scotland browbeating local councils so as to make them toe the line and cut what they believe to be essential services.
Seven years after the reorganisation of Scottish local government people up and down the length and breadth of Scotland are still bemoaning regionalisation; and the noble Baroness, Lady Elliot, was bemoaning it here in your Lordships' House only a moment or two ago. I think she is very patient to wait so long and to be still prepared to give it another chance. But seven years have passed since we debated it here in your Lordships' House. What good, one can ask, has it done when it has made unworkable monstrosities like Strathclyde, and unmanageable areas like Highland?
I have tried to assess the impact of the Highland Region and the creation of the new Caithness District Council upon the management of local affairs in my home county. Two functions now performed by Highland Region still cover almost exactly the same areas of responsibility shouldered before reorganisation by the old Caithness County Council—a body, incidentally, on which I sat for some 23 years. These are education and social work. These are two very important areas of responsibility in local government, and in both these areas I claim, though I sat on the council myself, that the old council was both efficient and effective.
Today, exactly the same staffs do exactly the same duties in exactly the same buildings with much the same excellent results. But, alas! for the ratepayer, there is also another staff now to pay as well: nine people in Inverness supervise the education office, and eight people supervise the social work department. Then there are the administrators who supervise the supervisors and the councillors who spend large sums of money in travelling to Inverness to add an air of democratic verisimilitude to the whole operation.
Not only are we worse off today financially but we are also worse off democratically. I have been asking around in Caithness to see how satisfied are people with their local government organisation. I find that a lot of people do not under-
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stand the set-up at all. Many do not know what function each tier of local government performs; a lot of them do not know who their councillors are, or in which district they live or in which ward of a district. In Caithness, if a mother wants to discuss the schooling problems of her children, it is no longer possible for her to see the director of education in the county town no more than 20 miles away; she could see a depute; but the head man would be 150 miles away and very hard to make appointments with. The same is true of every function.
The head men are remote and unavailable, and they are making sweeping decisions which affect the lives of the real and smaller communities without the faintest idea of what it is like to live in these communities. The democratically-elected reppresentatives of the people are few and fragmented and are unable to exercise effective control of the administration. I only hope that the Stoddart Committee manage to fight their way through to the truth of the matter as they investigate these affairs, although one fears that they may not—certainly, containing, as they do, two chairmen of Highland and Grampian regions but not a single district council from the North of Scotland at all.
Just over a year ago our hopes rode high. The Scotland Bill was passing through your Lordships' House and many of us saw in this Bill a means of bringing effective democracy back to Scotland and a means of dispensing with the unwanted regions at the same time. After all, they were only imposed on Scotland in the first instance as a form of bowdlerised devolution. But it was not to be; Scotland voted for devolution but, unfortunately, not decisively enough. Therefore, we lost not only that Bill but seemingly have also lost devolution in any shape or form during the lifetime of this Government.
I have described the ineffectiveness of local and national government as I see it. I have shown, I hope you will agree, that the regions in Scotland constitute a built-in over-manning problem; but it would be unfair if I did not suggest some solutions. My first objective would be to build from the bottom up and to create a really comprehensive local authority unit designed to be understood and used by the people living within it, and to be controlled

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by them. Therefore, I would consolidate the general purpose powers in the hands of the district councils and upon the lines of the highly successful Island councils.
I look across the Pentland Firth with envy at the Orkney Isles who enjoy this great benefit of dealing with all of their local affairs locally. This would produce at once a massive saving in over-manning and an immediate improvement in democratic contact between the administrators and those being administered. Then we need a Scottish Parliament. That would be my second objective: a Scottish Parliament, preferably in a British federal context, but, by all means, a Scottish Parliament. Regions could then be shrunk to a small Scottish Parliament administrative presence at regional level or something of that kind.
I want to see people in the communities themselves making the decisions that affect those communities. We have been ruled for too long by bureaucracy and the demon "Planning". Only when people understand how to make democracy work locally will it be possible to restore the supremacy of a truly representative Parliament and to restore people's faith in democracy, because people have lost faith in the effect of their vote. How is it, if they have not lost faith, that so few turn out to vote at elections? How is it that so few councillors in parts of Scotland put themselves forward for election? It is because they do not believe that the system is effective and they do not believe that they themselves will be effective in it. I feel that we have to restore people's faith in democracy by making a system which people can understand at local level. Then people, when they understand how to make local democracy work, will realise its value and importance, in the larger context.
4.55 p.m.
The LORD CHANCELLOR (Lord Hailsham of Saint Marylebone): My Lords, until I realised that I was going to have to reply to this debate, I was rather looking forward to it. But when it dawned upon me that I should have to say something at the end of it, I realised that my task was an impossible one. The noble Lord, Lord Foot, made what I hope he will not think it patronising of me to say was one of the most perceptive and thoughtful speeches I have ever heard in
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this House. But what he was saying—with which, as he probably knows, I very largely agree—was of such earth-shaking importance that, in a sense, one was astonished that, instead of being received with the praise which it certainly deserved as a contribution, it was not also greeted with howls of execration, for instance, from the noble Lord, Lord Bruce of Donington, who must have disagreed fundamentally with everything that Lord Foot was trying to say.
What he was trying to say, and what I largely agreed with, was something like this; and I know that he will not think that I am trying to misrepresent him. He was trying to say that the constitution of this country is breaking down from overstrain. This is very largely what I was trying to say in the lecture some years ago to which he was good enough to refer and also in the more elaborate book which I published about two years ago.
If that is true, it is both serious and very highly controversial. Serious because, although we received some support in a narrow field from the noble Lord, Lord Mackie, and the noble Viscount, Lord Hanworth, no one has been able to devise a means whereby a discontinuous change in our constitution can be made without any form of violence or revolution—which none of us wants.
I am bound to add this, I hope not cynically. The noble Lord, Lord Bruce of Donington, who made a very optimistic speech, said, basically, that what we want to do on this part of the case is to educate people enough, to choose our Members of Parliament rather better, to give them a few clever, young, research assistants and, of course, we must provide more freedom of information. I wonder whether he is right about that—because, if Lord Foot is right, I do not think he is.
Of course, what I have found, approaching this matter from a very different party point of view but still rather tending in the same direction, is almost total non-interest in the subject either among my own Parliamentary colleagues or among my Parliamentary opponents; but still more completely among the public. You do not find page 3 of the Sun full of the breakdown in our constitution. On the contrary, you find a blithe non-interest in our constitution, and of course the sporting and

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financial pages are equally unperceptive if either the noble Lord, Lord Foot, or I are right about it.
I can, however, tell the noble Lord, Lord Bruce of Donington, that far from being secretive, the Lord Chancellor's office is guardian of the public records. Since the Lord Chancellor has been guardian of the public records, which is for the past 22 years from, I believe, 1958, 40 miles of information, 40 miles of shelf space, have been added to what the public have available if they want to get it in preference to page 3 of the Sun. If one actually contemplates the number of future historians at the rate at which that mileage of shelf space is being added to every day as the 30-year limit begins to have its impact upon the Public Record Office, all I can say is that I suppose that half of us will be researching into the present age in another 25 years—and even then we shall not be able to keep pace with the increase in documentation. So I am not sure that freedom of information is either wanted or going to do the trick. I feel much the same about the clever young researchers but I ought not to trespass on the patience of the House to indicate my disbelief in that.
May I now make a genuflexion in front of our traditional constitution, because, although I have come to the conclusion that it is showing signs of breaking down through overstrain, as the noble Lord, Lord Foot says, we ought to recognise the perfectly amazing success which it has had over a thousand years: its extreme versatility; its capacity for survival; its adaptability from one state of society and organisation to another, and the extent to which twice in a human lifetime—in two world wars—it has really saved this country because of its peculiar characteristics.
We all know that English history starts with the Norman Conquest. Unfortunately, the Scots did not suffer from that great advantage. It is worthwhile considering what has happened over the years. We started as an occupied country and we still to this day retain a centralised Executive with greater central authority than any other free society, which is the direct result of the Norman Conquest. The history of the development of our constitution over the succeeding thousand
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years was very largely the development of Parliament. Incidentally, Lord Foot's Motion refers to the supremacy of Parliament, to which I shall refer in a moment. Parliament has been devoted from the first to this day to the theory that government must command a certain measure of consent. The development of the constitution ultimately consisted in the fact that the instrument of government by consent ultimately attained supremacy over the system of centralised authority imposed by the invading conquerors.
Then a terrifying and, in our lifetime, disconcerting, discovery has begun to be made. It is that universal suffrage operating through Parliament is no guarantee at all, either against folly or against incompetence or oppression. This is where I honestly fall foul of one of the first things that the noble Lord, Lord Bruce of Donington, said. Curiously enough, it was something which he said would command universal assent in all quarters of the House. He was not trying, and I am not trying, to make a party point. He said that the function of democracy was to promote the greatest good of the greatest number. T do not believe that to be true. On the contrary, I believe that every lawyer when he addresses a judge in court, every politician when he speaks to his House of Parliament, every candidate who utters a word on the platform, says words which are totally inconsistent with that theory. It was of course promulgated by Jeremy Bentham and it was sanctified by his close friend John Austin.
However, in the end we do not believe that to be true. We do not put down deformed children as if they were unwanted rabbits. We do not think with Caiaphas that it is meet and right that one man should perish for the good of the people. On the contrary, we speak of what is fair and what is just. We talk as if individuals and minorities had rights which cannot be overridden by the greatest good of the greatest number. It is precisely—and I think the noble Lord, Lord Foot, would agree—because Parliament is not responding to the needs of individuals as they are felt but that individuals, on the contrary, feel themselves oppressed by the power of an omnipotent Parliament, that one of the symptoms of breakdown has begun to appear.

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One or two noble Lords discussed—not always unanimously—the merits of proportional representation in one of its 14 forms as an immediate remedy to the difficulties which I am trying to expound. I am not a dogmatist about voting systems. I would say this, quite frankly, to the supporters of that as a panacea. I think it all depends on the kind of office to which you are electing people, on the kind of country, on the kind of assembly and on the kind of powers, what kind of voting system you adopt. Personally, I say to the noble Lord, Lord Mackie of Benshie (who made an excellent speech on the subject) that I see nothing objectionable in the executive power of a state being operated by the largest organised minority—and that is what, roughly speaking our first-past-the-post system does. But I see everything objectionable in that largest organised minority operating the powers of an all-powerful legislature, which is what our constitution has given it.
Therefore although I have no objection at all to a system which elects a Lower House to cover the executive of a country with the cover given to it by the largest organised minority, I see every objection to that House elected in that manner, operating as an omnipotent legislature. The noble Lord, Lord Foot, referred to numerous changes, all of which I agree with, which have taken place in the past hundred years. One to which he referred only in passing is the gradual slide from a system of checks and balances to a system of elected dictatorship.
There was a time when Parliament had two Houses—we still think it has—but we, as the noble Lord, Lord Foot, pointed out, lack the authority which a representative character would otherwise give to us. My Lords, do not think I am being disloyal to this House, because I have been in it too long not to love and admire it, but, as the noble Lord, Lord Foot, said, we lack the political authority to do what is required of a second chamber. Personally, I think that if every Member of this House were, by a miracle, an elected member under whatever system of voting, and we went on with our present membership and our present rules of order, everyone would recognise—and many people, when they listen to wireless broadcasts of Parliament, say
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this as one goes about—that our debates are civilised, courteous and constructive and compare very favourably with the kind of animal noises one sometimes hears at Prime Minister's Question Time in another place.
But we are not an elected assembly, and personally I would say that if we are going to look at our constitution we have to look at the question of a second Chamber because—and I say this to noble Lords opposite not particularly wanting to offend them—their party, whatever may be true of them, is committed to the abolition of this House and to the substitution of nothing in its place. That I find profoundly repugnant and I think it would exaggerate all the evils to which the noble Lord, Lord Foot, was drawing attention. One thing is quite clear, of course: if we were going to substitute an elected chamber we would have to substitute a chamber elected by a method of voting different from that chosen in another place.
Several noble Lords referred to the system of local government, with which I am profoundly ill-qualified to deal; but I am bound to say both to the noble Viscount, Lord Thurso, and to my noble friend Lady Elliot of Harwood, that I think she was right when she said that whether our recent reforms in 1972 and 1973 were good or bad, one has to admit that they have had an almost universally bad press. However, whether they were good or bad, a little respite from changes in structure is almost indispensable if local government is to be carried on at all anywhere, because if you once keep on making changes I do not know where it will end.
The Motion—and here I think I am really going to stop because the truth is that one could continue talking indefinitely about this subject—refers to "the supremacy of … Parliament". That is a doctrine about which I have my reservations, again in slight difference from the noble Lord, Lord Bruce of Donington. Supreme over the Executive, supreme over the Crown, supreme over the Government?—why certainly: we fought and won that battle 300 years ago. Supreme over the judiciary?—yes, so far as it means that Parliament prescribes the laws which the judiciary are bound to apply, whether statute law or customary law, as the case

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may be. But supreme over them in the sense that they must fear for their jobs if they make unpopular political decisions?—and I see a trace in some political quarters of an anxiety to achieve that result. Then, most emphatically, no. Supreme over individuals and minorities? There, I would say "No" again. I believe this is one of the most important lessons which Government must learn, whatever their political composition may be: there are inherent limitations as to what Government can do or ought to try to do.
This, I think, is an underlying debate between all three of the political parties, each taking a slightly different standpoint. But so far as I personally am concerned, I challenge the theory that Government can hope to intrude into every aspect of economic or cultural life. I believe that the individual, I believe that the minority, I believe that the educational institutions of the country, I believe that the great professions, I believe that the scientific world, and I believe that the academic world are entitled to an independence of existence and thought, quite irrespective of the wishes which Parliament in either of its Houses may express about it. I do not believe that Government of any kind. be it of one man, of groups of men or of elected men and women, ought to have supremacy over the people they are supposed to govern and I think that if they try to do so they will kill out the creativeness and the spontaneity of the human spirit, upon which in the long run civilisation depends.
May I just say this before I sit down. Some people have said: "The Good Book says there is nothing new under the sun", but we are living in an age, as the noble Lord, Lord Foot, said in a rather different context, in which things are happening which neither have happened before nor could have happened before. If a Rip Van Winkle had gone to sleep at the time of the Roman Empire before the Dark Age and had woken up again in the 18th century England, he would have found many things different but he would have encountered a non-industrial society in which he would not have found himself wholly not at home. But the immense development of modern technology has altered the whole condition of human life in a way which nothing has ever done in the history of the planet before.
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It is to this that government has got to accommodate itself. It has got to accommodate itself in the internal field—and we have been talking about this mostly this afternoon—and it has also got to accommodate itself (the noble Lord, Lord Foot, touched on this) on the international plane. Here I thought he was perhaps a little unfair about the structural changes which have taken place since the end of the last war. I think he was fair when he said that the two main attempts at constitutional reform—devolution in Scotland and reform in the House of Lords (and perhaps he should have added local government)—were the only constitutional changes of a radical kind which had been undertaken since 1945. I think myself they all failed, for the reason I was trying to put forward in the lecture and in the book, by failing to understand that the parts of a constitution are really interrelated and the questions cannot be divorced the one from the other.
I do not think you can have a different system of government in Edinburgh from that in Belfast, Cardiff or London. There, I think I differ a little from the noble Viscount, Lord Thurso. But internationally, the international organisations have made structural changes. The EEC is something which, whether you like it or not, has happened. The Eastern European bloc is something which has happened, and so is NATO. These are all reactions in greater or lesser degree to the nuclear explosions at Hiroshima and Nagasaki in 1945. However, I have detained your Lordships enough. I have replied to the debate—I have not spoken for the Government, except marginally—because, I suppose, there was no one else to reply to it. But, at any rate, I hope that I have not bored your Lordships beyond endurance.
5.20 p.m.
Lord FOOT: My Lords, before I withdraw the Motion, I should like, first, to thank all those who have taken part in the debate, particularly my noble friends, for the way in which they have filled out the wide gaps which were left when I sat down. As I said at the very beginning, this debate has been justified if only because it has evoked that speech to which we have just listened from the noble and learned Lord the Lord Chancellor.

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I remember it was said of the late Lord Birkett, by one of the judges, when he was at the height of his powers as a defending counsel, and after he had successfully defended about 23 murderers in a row, that because he was so persuasive he was a positive menace to the administration of justice. I have always thought about the noble and learned Lord that he is enormously discouraging to anybody who would think of embarking upon public speaking, in that whenever I listen to him I come to the conclusion that I have learned nothing whatever about it.
This is not a conclusion that I have come to rapidly, because the noble and learned Lord may remember that some 50 years ago—he has probably forgotten—I was a freshman student at Oxford and I think that the noble and learned Lord was in his third year, not only on the point of gaining first-class honours in the Greats, but was president of the Union and All Souls was in the offing. At that time on two occasions, as I remember, he was good enough to walk through the meadows with me trying out the speech which he was going to make to the Union in the following week. At that time, I formed the conclusion that I have about the noble and learned Lord's art of speaking, and nothing has happened in the last 50 years to alter it.
I know very well from what the noble and learned Lord has written, and particularly from the Dimbleby lecture, that he has never agreed with us upon the matter of proportional representation. He spoke most eloquently about the rights of minorities, and I entirely share his view that the real test of whether you have a healthy democratic society is the extent to which it provides safeguards for the minorities. That is because in the work that we do, in the games that we play, in the arts in which we engage, in the appreciation of nature, music or language, we are all minorities and the first business of a decent democratic society is the protection of the minorities.
That is why I find it difficult to understand altogether why the noble and learned Lord does not see that one of the minorities in this country, which is being denied fundamental rights today, is the people who belong to a minority party and who may go through the whole of their lives in this democratic society,
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without ever being allowed to cast the vote that counts or that makes any difference to the Government of the country. I should have regarded that minority right, the right of people to be allowed to cast the vote that counts, and that has some impact upon the way in which their country is governed, as one of the fundamental rights which the noble and learned Lord would have been most anxious to protect.
Having said that, may I say finally to the noble and learned Lord that I am overwhelmed by the generosity of what he had to say about me, and may I thank your Lordships for having attended and listened to this debate. My Lords, I beg leave to withdraw my Motion for Papers.
Motion for Papers, by leave, withdrawn.

TREES (REPLANTING AND REPLACEMENT) BILL [H.L.]
5.25 p.m.
Lord SOMERS: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, that the House do now resolve itself into Committee.—(Lord Somers.)
On Question, Motion agreed to.
House in Committee accordingly.
[The Lord NUGENT Of GUILDFORD in the Chair.]
Clause 1 [Obligation to plant new trees]:
[Amendment No. 1 not moved.]
Lord SOMERS Lord SOMERS moved Amendment No. 2:
Page 1, line 6, after ("area") insert ("owned and").
The noble Lord said: The majority of my amendments are purely drafting, so I can assure your Lordships that I shall not take a great deal of time. I inserted Amendment No. 2 simply to make it quite clear that the land is both owned and administered by the local council. I beg to move.
On Question, amendment agreed to.
Lord SOMERS Lord SOMERS moved Amendment No. 3:
Page 1, line 7, after ("any") insert ("living").
The noble Lord said: This amendment is quite obvious. There should be no objection to cutting down a tree which has already died and, therefore, I wish to insert the word "living". I beg to move.
Lord KILBRACKEN: The noble Lord said that this is quite a formal amendment, but I do not feel at all in favour of it. I do not see any reason why a dead tree should be excepted from the provisions of the Bill. Let me take the scenario where, under the spreading chestnut tree, the village smithy stands. The spreading chestnut tree is struck by lightning and dies. It is a noted local ornament and happens to stand on land controlled by the local authority. They are then under no obligation to replace it. Similarly, if there is a line of mountain ash growing along a surburban street and one or two of them die for any reason, there is no reason to replace them.
Another point to consider is that if the elms, which are still dying in great quantities over the country, die on land controlled by a local authority there is no reason for those elms to be replaced. I ask the noble Lord to think again about this question, because the amendment means that where a tree dies nothing need be put there to replace it, and I would oppose the amendment.
The Earl of CORK and ORRERY: I am not at all sure that I am entirely in agreement with the noble Lord, Lord Kilbracken, as I call to mind a spectacle that I have witnessed in the past; and others of your Lordships may also have done so. I refer to the spectacle of several hundred thousand starlings flying to roost at sunset time and coming down in a small wood. It is not a very frequent happening, I am glad to say, but it is a quite well-known one, and if it is a wood of small trees—certainly, trees that would be covered by the provisions of this Bill—it will be totally destroyed. This might amount to the sudden death of several hundred trees. If the objection of the noble Lord, Lord Kilbracken, is accepted, who will replace all those dead trees? The onus falls upon the local authority. The local authority is presumably the
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parish council. I should not care to be a member of a parish council that suddenly found itself charged by statute with the duty of replacing a whole wood.
The noble Lord also made the point about a line of trees in, say, a suburban street, one or two of which might die. I do not think that we need to bother about that. I am pretty certain that any urban authority would replace such trees. It would be rare if they left them unreplaced. I suggest to the Committee that it would be overdoing it to pass a statute law to make it compulsory to replace one or two trees, the expense of the former dead wood falling upon the parish council of which I spoke just now. Therefore I support the amendment.
Lord WYNNE-JONES: A small point can arise in this connection and I am sure that the noble Lord, Lord Somers, would be able to deal with it quite easily in his amendment. What happens if a tree which is dead has been preserved by filling it with plastic? It so happens that there is in this country one famous tree in this condition. It is at Farnborough. Earlier this century, the famous Colonel Brodie used to ride up to it, in the days when he flew kites at Farnborough, and tether his horse there. The tree became quite famous. Towards the end of the last war it was discovered that the tree was dying, so it was decided to preserve it by filling it with plastic. I think I am right in saying that the tree is still there. It is not a living tree, yet such a tree surely ought to be preserved.
Lord SOMERS: I think I can comfort the noble Lord by saying that according to the amendment there is no compulsion to destroy any tree, whether alive or dead. The only thing that the amendment proposes is that you shall not be forced, if you do, to plant two others of the same variety. On the other hand, I think that there is a great deal in what both my noble friend and the noble Lord, Lord Kilbracken, have said. On the strength of that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.32 p.m.
Lord KILBRACKEN Lord KILBRACKEN moved Amendment No. 4:

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Page 1, line 7, leave out ("of a species set out in the Schedule to this Act").
The noble Lord said: Perhaps I should mention that if this amendment succeeds it will be meaningless to call Amendments Nos. 23 to 32 inclusive because the purpose of this amendment is to prepare the way for omitting the schedule from the Bill. The reason is that the schedule sets out particular species that will have to be replaced if they are felled or destroyed.
As I mentioned on Second Reading, the species listed by the noble Lord in the amendment appear to have been chosen on a rather capricious basis. Some of them are conifers; some of them are deciduous; some are softwood and some are hardwood; some are fast growing trees and some are slow growing trees; some are trees that are generally used for timber and some are trees that are very rarely, if ever, used for timber. That is quite apart from the fact that uncommon trees do not come within its scope at all. Nor do trees such as the sycamore, which is a very important timber tree and also a very attractive tree.
When the noble Lord replied to the debate on Second Reading, he said that the reason why he had chosen the trees in the schedule was because they are slow growing trees. I pointed out to him then that at least two of them, the silver birch and the aspen, are extremely fast growing trees, to which he replied that they are very much self-sowing and are not likely, therefore, to become reduced in numbers. But that would be more a reason for leaving them out of the schedule than for including them.
I notice that the noble Lord, Lord Somers, has put down a number of amendments which would add several trees, including two of those which I suggested at Second Reading, to the list. However, I can see no virtue in restricting in any way the particular species that will have to be replaced. If there were to be a schedule it would have to be immensely long, and I do not know why certain trees should be left out. As I mentioned on the previous occasion, why is the aspen poplar there but not the lombardy poplar or the serotina poplar? I could go on and give a number of other examples to your Lordships.
What this amendment would achieve would be that any tree, apart from those excluded from the Bill by subsequent provisions, would have to be replaced by at least two more if it were cut down by a local authority. I think it is far better that it should apply thus generally, and with some strength I should like to propose to noble Lords that they should accept this amendment.
The Earl of CORK and ORRERY: I am inclined to support the noble Lord, Lord Kilbracken, in his amendment. He is a little hard on the noble Lord, Lord Somers, in rather high-handedly abolishing the whole of this schedule upon which the noble Lord has spent so much time. It goes against the grain to be hard on the noble Lord, but I am afraid that I am inclined to be a little hard on him. One could go on amending a schedule of this kind practically for ever—taking trees out and putting others in. As many as there were people engaged upon this exercise, so many different versions of the schedule would, I suspect, emerge at the end of the exercise. In any case, the schedule would be likely to get longer and longer, as the noble Lord, Lord Kilbracken, has said. On the whole, probably the best thing to do is to leave the whole thing out.
Lord MOWBRAY and STOURTON: May I say something on behalf of the Government about this. As my noble friend Lord Bellwin indicated at Second Reading, we have every sympathy with what the noble Lord, Lord Somers, is trying to do. We firmly wish to encourage the extensive planting of trees. However, as my noble friend said, we cannot support this Bill. As my noble friend Lord Gisborough said, however good the intentions behind the Bill may be he thought it was a nonsense.
The amendments which have been tabled to improve the Bill do a certain amount, but we in the Government do not see much point in trying to turn this measure into one which we can support because at the end of the day we are not going to support it. I must be honest. Our fundamental objection is that it runs completely counter to our policy of reducing substantially the number of controls over local authorities and of giving to those authorities more discretion and flexibility. Furthermore, we think

1703
that it is unnecessary because we believe that most local authorities do not need any such encouragement to plant more trees. Also, it would increase bureaucracy which, as noble Lords will be aware, is not part of our policy.
We see little point in endeavouring to improve this very well intentioned but perhaps misguided Bill. I understand fully the intentions behind the amendment moved by the noble Lord, Lord Kilbracken. I sympathise with a great deal of what he said about the various types of trees which are or which are not in the schedule. However, this is going to add to the bureaucratic process.
I thought that at this stage I ought to make clear the Government's position. We do not like this amendment at all because we think that it would add to the statutory requirements in the Bill, which we think already contains too many.
Lord WYNNE-JONES: After that apologia pro vita sua, I wonder a little what the Government do want to do. Do they not wish to see some uniform principle observed throughout the country? Do they wish to leave it to every local authority to decide whether or not to lop down trees? One only has to look around at the present time to see that where a local authority has got such freedom the amount of pollardisation that goes on, the amount of wilful damage to trees, is absolutely shocking. Even a Government who claim that they do not wish to interfere at all in the interests of this country should nevertheless pay a little attention—just a little attention—to the way in which the environment is destroyed. Should they not wish to see, when in the fullness of time they relinquish office, that they leave something behind them which is worth preserving?
I know that the noble Lord is nothing like such a vandal as he would pretend to be on certain occasions, and I am quite sure that if he looks at this matter carefully he will realise that there is a lot to be said for this amendment. It is one which ought to be considered carefully and not brushed aside as something that the Government do not want to have anything to do with.
Lord MOWBRAY and STOURTON: The noble Lord, I am sure mistakenly,
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said in his speech if I did not mishear him, that we had no interest in the well-being of this country. I cannot imagine where he has gathered the impression from any member of this Government that we have no interest in the well-being of this country, because we have just as much interest in the well-being of this country as anybody else in this country. We think our way of going about it will improve the well-being more than perhaps the views expressed by his Party.
As I said earlier, we have every sympathy with the noble Lord, Lord Somers. Nobody loves trees more than I do—nobody. I am absolutely as dedicated as is the noble Lord, Lord Wynne-Jones, to the planting of trees. I think they are beautiful; I think they are lovely; I know they are useful for the country. They will provide all sorts of things which we shall need in the future. Past generations have planted and we are grateful to them; I hope future generations will be equally grateful to us. I do not see the necessity at this moment of time to add further instructions to local authorities to do these things. I look around me, up and down the country, in metropolitan boroughs, in counties—you name the authority you are talking about, because I do not know where these authorities are who are lagging behind in their duty.
The noble Lord spoke about vandals. When I see trees vandalised I am equally upset, but I notice that the local council replants them; they do not need to be told by statute authority to do it. They are doing what one might say comes naturally. They want to see beauty in the form of trees. All housing authorities now realise that houses are enhanced in beauty by having greenery and trees around them. We are all pushing at an open door; I do not think this provision is necessary. This is the only point between us. We are not disagreeing about the beauty or the necessity of trees; we are merely asking whether this is necessary. We do not think it is.
The EARL of CORK and ORRERY: I am not sure that I perfectly understood my noble friend Lord Mowbray and Stourton. He appears to me to have been making a Second Reading speech attacking the whole Bill. We had that speech from somebody else on Second Reading.

1705
What we are concerned with now is an amendment proposed by Lord Kilbracken to leave out the schedule. If I may extract from my noble friend's first speech—he has just made two speeches and delightful they were as usual—he was complaining about the proposition that more bureaucracy should be brought into being; that more duty should be laid upon local governments. What the amendment is doing is actually the opposite. It is removing this schedule so that nobody should have to discuss whether or not a tree was in the schedule; no inspector should be required to come and see whether this was a sycamore or an oak. It is washed out. This surely reduces the amount of bureaucracy, and the amount of work required by the local council.
Lord MOWBRAY and STOURTON: If I can ask indulgence to get up yet a third time, I accept that. I apologise. I was rather making a Second Reading speech and I did intend to make it clear that I was putting the Government's general view on the Bill.
On the particular point that my noble friend made, the schedule as originally put in by the noble Lord, Lord Somers, limited a certain number of trees to certain species. If Lord Kilbracken's amendment is passed, it will mean not only that those trees will have to be replanted but a whole lot more as well. To that extent it does add to the workload in the bureaucracy.
Lord SOMERS: What seems to have escaped so many noble Lords, in particular the noble Lord, Lord Kilbracken, is the point I made on Second Reading, that this Bill is not directed at trees generally. It is directed at a certain kind of tree; namely, those trees that are so slow growing that those who plant them are never likely to live to see the results. While I have every admiration for the activities of many local councils not all of them admittedly, but many of them—in planting trees, they seldom plant the right kind. They are much more apt to plant a flowering cherry or something like that which will grow to maturity or semi-maturity within the lifetime of the present council, or anyway of the present residents. But that is not what this Bill is supposed to ensure it is intended to preserve in the
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country as a whole the numbers of the slow growing trees, which are not being planted. To remove the schedule, as the noble Lord, Lord Kilbracken, suggests, would remove the entire purpose of the Bill and, incidentally, would make a great deal more work for those councils who it has been pointed out have to replant them. I sincerely hope your Lordships will not accept this amendment.
Lord MOWBRAY and STOURTON: There is one further point I would make. If a tree were planted originally—say, a baby standard—babies grow into big trees and sometimes one has seen occasions where a good tree had been planted but in totally the wrong place. If this sort of measure became law we would have to perpetuate the same mistake for ever. Has the noble Lord thought of that?
Lord SOMERS: We do not specify where the new tree is to be planted. Let us hope that the councils which the noble Lord says are so keen on tree preservation will have the sense to put a tree in the right place.
Lord MOWBRAY and STOURTON: I do not think the noble Lord is quite grasping the point I am making. If you plant a chestnut of either the Spanish or the horse-chestnut variety in a fairly narrow London street it is very nice when it is young, but as it grows older it becomes bigger and bigger. It is probably totally unsuitable to be in that place, I am suggesting, and therefore might not the council in its wisdom wish to have the discretion, when it did fall or had to be cut, to plant perhaps in its place some smaller tree? It is not necessarily wrong to replace a hardwood with (shall we say?) a cherry tree, because it might have been that the hardwood grew to be too big and was therefore not suitable for longterm policy. I only ask that because I do not like making statutory suggestions for something that might not be suitable in the long term. In the countryside that would be all right, but so far as towns are concerned I ask this. Does the noble Lord think it always necessarily right to have to replace something which possibly would grow too big?
Lord KILBRACKEN: On that point may I draw the noble Lord's attention to

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my next amendment, No. 5, which leaves out the words,
"of the same species and of the same or a similar variety",
and therefore would allow a local authority to plant any species it liked in place of one that fell down. The noble Lord has taken a rather unusual course in making a speech early in the Committee stage which tells us more or less that we are wasting our time here; but I assume that we are going to continue with this Committee stage, and I should like to say a few further words in the light of what has been said already.
The noble Lord, Lord Mowbray and Stourton, does not seem to have noticed that, in moving an amendment which would result in the deletion of the schedule, I was in fact taking action as suggested by his noble friend Lord Bellwin during the Second Reading, when he said:
"To specify some 15 species, in the way this Bill does, is likely to give credence to the view that these are in a first division of suitability, and that other equally fine species are less worthy to be grown".—[Official Report, 16/4/80; col. 395.]
One of the reasons which led me to move the deletion of the schedule was because the Minister thought it unwise that 15 particular species should be specified.
Secondly, I wish to turn to what the noble Lord, Lord Somers, has again said about the purpose of his Bill, which is that it should act to preserve the continuance of slow growing trees. But if that is the object of his Bill, then the schedule contains some extraordinary inclusions because, as he himself agreed, the aspens and the silver birch, for instance, are not only easily self-regenerated but also are extremely fast growing, and therefore they should be included. I am grateful to the noble Earl for the support which he has given to this Bill. If we are going ahead with the Committee stage, as I assume we are, I wish to persevere with my amendment.
On Question, amendment agreed to.
The DEPUTY CHAIRMAN of COMMITTEES (Baroness Wootton of Abinger): In calling Amendment No. 5 I have to call the attention of the Committee to the fact that, if this amendment is agreed to, I shall not be able to call Amendments Nos. 6 or 7.
5.53 p.m.
Lord KILBRACKEN Lord KILBRACKEN moved Amendment No. 5:
Page 1, line 10, leave out ("of the same species and of the same or a similar variety").
The noble Lord said: As I mentioned when speaking to the last amendment, Amendment No. 5 would leave out of line 10 the words,
"of the same species and of the same or a similar variety".
The result of this amendment would be that, instead of having to replace a tree that has been cut down by one of the same species, it would be left entirely to the local authority to decide what species of tree should be planted. In general I am in favour of the idea of leaving it to the local authority to decide what kind of tree they should plant, and I would suggest that in any case it is advisable that this should be so. In the first place, if an elm tree which is not yet dead is cut down it would presumably need to be replaced by a tree of a different variety.
Then, for example, if there is a line of oak trees and one of them is cut down, the oak is a tree demanding a great deal of air and light and it would be very unwise to put another oak tree where it was going to be overhung by more mature trees. Therefore, I hope your Lordships will agree, particularly now that the schedule is going to be deleted and any tree that is embraced by it, that it should be left to the local authority to decide what species of tree should be planted in the place of one that has been felled. I beg to move.
Lord MOWBRAY and STOURTON: If I appeared somewhat churlish to the noble Lord, Lord Kilbracken, previously, let me say that, so far as this amendment is concerned, I think it is a very useful relaxation of the points that he made in relation to my speech earlier.
Lord INGLEWOOD: I should like to support the noble Lord, Lord Kilbracken, because in every town in this country there are countless examples of unhealthy trees and trees which were planted in the wrong place. Under the terms of the Bill, it seems that that mistake which was made by a previous generation has to be made again, when any reasonable forester would much prefer, in the light of experience

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to plant a tree of a different species which would be much more likely to give pleasure to many people in years to come.
Lord KILBRACKEN: I am grateful to both noble Lords for their support.
Lord SOMERS: No doubt, in the light of the fact that Amendment No. 4 has been agreed to, there is no point in objecting to Amendment No. 5. I can only say that of course this has destroyed the entire purpose of the Bill and I can find very little reason for going on with it, but as it is here I suppose it must be done.
Lord KILBRACKEN: In view of what the noble Lord has said, perhaps I may say that it was by no means my intention that either of those amendments should be regarded as being in any sense a wrecking amendment or the sort of amendment which would change the operation of the Bill, but rather would make it more effective. It was in that spirit that I moved them.
The Earl of CORK and ORRERY: I should like to join with the noble Lord, Lord Kilbracken, in expressing a somewhat similar sentiment. It would be a most appalling idea that anybody should wish to destroy this Bill, nor do I think that this amendment or any other amendment runs the risk of doing anything of the kind. I know that it is close to the noble Lord's heart to have this Bill with a particular purpose—that is, to replace a small number of hardwood trees—but if other noble Lords see in it a different purpose and choose to move amendments to the Bill to sustain that purpose, the particular purpose of the noble Lord, Lord Somers, may be lost. What the rest of the Committee is trying to do is to support this Bill and make it into a good Bill, and I hope the noble Lord, Lord Somers, will accept that.
Lord MOWBRAY and STOURTON: I should like to comfort the noble Lord, Lord Somers, because I believe I detected a note of hurt in his voice. We all appreciate what he is doing, but for the reasons given by my noble friend Lord Cork and Orrery and the noble Lord, Lord Kilbracken, on Amendment No. 5, to avoid having to perpetuate the mistake made by an earlier generation by planting
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the wrong tree, this particular amendment must be a good one. Otherwise we should merely be perpetuating earlier mistakes. I hope the noble Lord will not take any hurt from what any noble Lord has said, because I promise him that such was far from being anyone's wish.
Lord WYNNE-JONES: From this side of the Committee, I wish to say that we support this Bill in its principle and we hope that the noble Lord, Lord Somers, will realise that any amendment of this type is not intended to destroy the Bill at all but is rather trying to put it into a form which we believe would be helpful and valuable. I am sure that we are all grateful to the noble Lord, Lord Somers, for having brought this Bill foward in the first place.
On Question, amendment agreed to.
[Amendments Nos. 6 and 7 not moved.]
On Question, Whether Clause 1, as amended, shall be agreed to?
The EARL of CORK and ORRERY: I think I owe the Committee an apology. It may have been noticed by some noble Lords that I tabled Amendment No. 1 and did not move it. This was not a device (as some may have supposed, although I hope they did not) to get my name at the top of page 1; it arose from the fact that I made a mistake by not seeing something until it was too late to table another amendment. If your Lordships will look at Clause 1 you will see that it begins:
"Any local authority, or any person acting on its behalf …"
shall come under certain obligations; that is, to replace a tree that has been cut down.
When I read this it seemed to express very clearly what the noble Lord, Lord Somers, had in mind. I did not even notice, in my slovenly reading of it, that in fact it did nothing of the kind. I do not think even he now agrees that this is right. In practice it means that if a local authority employs, say, a contractor to cut down a line of trees, then that contractor, being the person acting on the authority's behalf, shall be responsible for the trouble, labour and expense of replacing the trees. That cannot possibly have been the intention, and it would not make

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sense if it were. What I think is required to be done is not to add the words, "local authority", as I proposed for totally different reasons, but to remove that phrase altogether; that is, to take out "or any person acting on its behalf". Then, I think though it might be appropriate to consider this a little more, the clause will be left in a satisfactory form. What I would propose to do, if allowed, is to move an amendment to that effect at Report stage.
Lord SOMERS: My noble friend has a distinct point there. I shall be perfectly happy for some change to be made at Report stage.
Clause 1, as amended, agreed to.
Clause 2 [Planting of new trees]:
6.3 p.m.
Lord KILBRACKEN Lord KILBRACKEN moved Amendment No. 8:
Page 1, line 13, leave out subsection (2).
The noble Lord said: I hope the noble Lord, Lord Somers, will not accuse me of tearing his Bill apart any further in my moving this amendment. I do so because the subsection seems to me to be totally unnecessary. The subsection is in two parts. It begins by saying
"(2) The planting of new trees under section 1 above may take place on or near the point of felling or destruction …".
I submit that that is a completely meaningless and unnecessary phrase in a statute. Of course the felling may take place on or near the point of felling or destruction, but there is no compulsion about it. It then goes on to say:
"… or at any other place or places within the local authority area".
I do not imagine that the local authority having to plant trees would choose to plant them outside the area that it controls. But if it was convenient for it to do so, I do not see why it should be prohibited from doing so. Again, to reduce the amount of bureaucracy necessary, I suggest that it should be left entirely to the local authority to decide where the necessary trees are planted.
Lord SOMERS: I think that this is a perfectly reasonable amendment. Perhaps it is laying down rather hard and fast
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lines for any council to tell them exactly where they may or may not plant trees. No doubt they are quite capable of deciding that for themselves. I am perfectly happy to accept this amendment.
The Earl of CORK and ORRERY: I am not so sure about this. This time I support the Bill against its mover, and also against the amendment. If this subsection is taken out, I think that local authorities would find themselves obliged, at least by implication, to plant a new tree in the place where the old one was growing. I think that is the inference that -flows from this. It is therefore right to put in a proviso that they may plant it somewhere else. So far, so good. The noble Lord, Lord Kilbracken, is not objecting to that, I think. What he says is that it is unnecessary to say that they may plant it in any other place, or places within the local authority area.
Suppose one left out the words "within the local authority area", then one is simply left with the words "or at any other place or places". That would be silly. I do not believe the noble Lord would want that to go in by itself. The whole phrase would go. I think that there is a point in the last few words. It would not be reasonable to say that a local authority might cut down a tree in one place and plant another one in the next county, or in the garden of its own chairman—who happened to live in Wiltshire when the county council was perhaps in Cornwall. I think it is reasonable. I do not know whether there is a parliamentary term which corresponds to the vernacular term of "nit-picking", but I think that is what we want here to describe the noble Lord's amendment.
Lord SOMERS: If the noble Earl looks at Amendment No. 9 he will see that that amends the wording slightly, to
"places owned and administered by the said local authority".
On the other hand, I think that there is a certain amount in what both noble Lords have said and I must leave it to the Committee to decide.
Lord KILBRACKEN: In view of what has been said, I suggest that I be permitted to think about it again and perhaps, after discussing it with noble Lords informally,

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move or not move a separate amendment at a later stage. I therefore beg leave to withdraw this amendment.
Amendment, by leave, withdrawn.
Lord SOMERS Lord SOMERS moved Amendment No. 9:
Page 1, line 15, leave out from ("places") to end of line and insert ("owned and administered by the said local authority.").
The noble Lord said: I have just explained the reason for this amendment. I beg to move.
On Question, amendment agreed to.
The EARL of CORK and ORRERY The EARL of CORK and ORRERY moved Amendment No. 10:
Page 1, line 15, leave out from ("places") to end of line and insert ("administered by the said local authority").
The noble Earl said: This is a simple drafting amendment of no particular significance. I simply think that this wording is better than that in the Bill. I beg to move.
Lord MOWBRAY and STOURTON: It looks to me as though, in moving this amendment, the noble Earl is doing exactly what the noble Lord, Lord Somers, and the Committee have done in the previous amendment. It seems to be totally unnecessary.
The EARL of CORK and ORRERY: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord KILBRACKEN Lord KILBRACKEN moved Amendment No. 11:
Page 1, line 15, at end insert—
("() Such trees shall be properly maintained, and any casualties replaced, by the authority concerned.").
The noble Lord said: In moving this amendment may I say that I felt it was desirable to ensure that trees were not only planted but that they were subsequently looked after. Since dead trees are now not included in the provisions of the Bill I chose the words "any casualties replaced "—which is a rather fanciful phrase, though I believe its meaning is quite clearly understood—because they do remain necessary. I think your Lordships will agree that where trees have been planted
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there should be an obligation to maintain them properly, and that is the purpose of this amendment.
Lord SOMERS: This is a very necessary amendment and I am most grateful to the noble Lord for having introduced it.
Lord MOWBRAY and STOURTON: I would congratulate the noble Lord, Lord Kilbracken, on this amendment. I think it is very sensible.
On Question, amendment agreed to.
6.10 p.m.
The Earl of CORK and ORRERY The Earl of CORK and ORRERY moved Amendment No. 12:
Page 1, line 16, after ("to") insert ("self-seeded").
The noble Earl said: This subsection of Clause 2 provides the complete "get-out" from the provisions of the Bill by any local authority that does not wish to be bound by it. The effect of what it says is that a tree may be cut down—shall we say that it is growing in the middle of a car park, or where a car-park is to be built—and then, say, two more sprouting acorns are planted, still in the middle of the car-park, and nature is left to take its course. Nature, of course, would be represented by motor-cars, which would instantly mow the poor little trees into the ground. As the clause stands, it removes from the authority any duty to look after a tree until it is three years old.
Lord KILBRACKEN: Does the noble Earl take into account the amendment we have just approved, which says that any casualties have to be replaced?
The Earl of CORK and ORRERY: I think probably I was paying more attention to this amendment than to what the noble Lord was saying on the previous one. It is certainly arguable that this amendment has become unnecessary in view of the amendment we have just passed. I do not know whether anyone else would like to comment. Perhaps the noble Lord, Lord Kilbracken, would like to enlarge upon it.
Lord KILBRACKEN: I felt it might be convenient if I came in at this stage because the next amendment, No. 13, in my name, has the same purpose, but

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it leaves out the words "less than three years". The noble Lord, Lord Somers, said at Second Reading that in Clause 2(3) he was thinking about trees that had seeded themselves, and I therefore felt, as the noble Earl felt, that it was preferable to talk about self-seeded trees, to use the noble Earl's phrase, or self-sown trees, to use my phrase. I do not think there is much to choose between them. It makes it clear that the Bill is only referring to trees that have been naturally regenerated. If my amendment were accepted it would mean that it applied to all trees that had been self-sown or self-seeded whether under three years old or not.
I ask your Lordships to consider this, particularly in the light of the very small size of trees, whether they have been planted or whether they have been naturally regenerated, which some of your Lordships may not realise. If you put an acorn or a seed into the ground, or a sycamore plants itself, at the end of the first year it will only be three or four inches high, at the end of two years it may double in height, and at the end of three years it might be a foot or a couple of feet, but not much more than that. It is very difficult indeed to tell whether it is under three years old. You cannot cut it down to count the annual rings. Some trees grow much more quickly than others.
I imagine a situation where there is some parkland with a lot of naturally regenerated trees, perhaps ash or birch or alder. They are 10 or 12 feet high, with a diameter of three to four inches. They are clearly naturally regenerated, but they are only scrubby trees. As the Bill stands at present, because any trees of that size are certainly over three years old, they have been planted for more than three years, it would apply to them, and if any of that scrub is planted a couple of proper trees have to be planted in its place. Therefore, I am proposing that the reference in Clause 2(3) should say simply that Clause I shall not apply to self-sown trees, and leave it at that.
Lord INGLEWOOD: I am in some difficulty here; I do not know if I am the only noble Lord who is. As the noble Lord, Lord Kilbracken, said, it is not so difficult to identify a self-sown sycamore, growing through the cracks at the side of a road, as being three years old or so. He
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then referred to park trees and trees growing in spinneys and woods. When you look at a tree which is 100 years old it is quite impossible to say whether it is self-sown or not. As the Bill is now drafted, I think it is imposing an entirely impossible task on those who will have to administer the Act. If we want to make some exception of self-sown trees, then we must put a very strict limit of age.
Lord KILBRACKEN: Could the noble Lord suggest a limit?
The DEPUTY CHAIRMAN of COMMITTEES: I think it is clear that Amendments Nos. 12 and 13 cover the same ground, and it is for the Committee to choose which, if either, they wish to support. The noble Earl, Lord Cork and Orrery, has moved Amendment No. 12.
The Earl of CORK and ORRERY: I beg leave to withdraw Amendment No. 12.
Amendment, by leave, withdrawn.
6.16 p.m.
Lord KILBRACKEN Lord KILBRACKEN moved Amendment No. 13:
Page 1, line 16, leave out ("trees which have been growing for less than three years") and insert ("self-sown trees").
The noble Lord said: I would be interested to know if any noble Lords have any further ideas upon this. It seems to me that I may be wrong and that perhaps some limit should be applied so that the reference would apply only to self-sown trees up to 10 years of age or some other age. I think it should be something more than three years. I would be grateful if any noble Lord has any suggestions on this matter. I beg to move.
Lord MOWBRAY and STOURTON: I would have thought the noble Lord, Lord Inglewood, has answered the point. I would have thought that his suggestion meets the case.
Viscount SIMON: I have been listening with great interest. I must agree with the noble Lord, Lord Inglewood. From looking at a tree growing in a hedgerow, which may be a 100 years old, nobody can tell whether it is self-sown. It is more likely to be self-sown than planted there. There must be some limit. It may be that three years is too little. I am not

1717
an expert on these things and I would not for a moment suggest what the limit should be. Should the limit be related to the size of the tree, either the height or the girth of the trunk?
Lord KILBRACKEN: I think what the noble Lord, Lord Inglewood, said is perfectly right. It had not occurred to me that, of course, in the case of a tree 40, 50 or 100 years old no record exists as to whether it originated by planting itself or whether it was planted. I feel on reflection that my present amendment is too sweeping, and that it should apply only to self-sown trees under, let us say, 10 years old, or something of that sort. I would, therefore, propose to introduce a different amendment at Report stage, and in the meantime beg leave to withdraw this one.
Lord GLENKINGLAS: I wonder whether, before the noble Lord withdraws the amendment, I could ask him to consider before Report stage this point which seems to be a valid one. Most of us looking at the amendments so far have been considering single trees planted along roads and such places. When we come to this particular amendment, there are a number of local authorities that have quite sizeable parks. In some of these they will be growing future stands of hardwoods. It may well be 30 or 40 years before some of them need to be cut out in order to thin what will be a very fine stand of that particular variety of tree. If every time they cut one out they have to put another one in, the whole purpose of thinning the wood will have rather disappeared.
Lord SOMERS: May I point out to the noble Lord that there is a clause later on in the amendments to rectify that.
Lord GLENKINGLAS: I am sorry to have intervened.
Lord BALERNO: I am not sure whether the word "self-seeded" is the right word to use in this context. I put this forward with diffidence; it is a long time since I was a student of forestry. I rather think the correct expression, certainly 50 years ago, was "natural regeneration".
Baroness PHILLIPS: I am not concerned with forestry, but I am a lover of trees and
1718
delighted to see that our urban areas now have trees. I find it very strange that your Lordships seem so hard on self-sown trees. Self-sown trees can be equally as beautiful as planted trees. As I understand the purpose of the Bill, if you have a tree there, then the tree would be restored. Does it matter too much how it came there? Is it our job to take them out or is it our job to see that the tree is retained? I would like noble Lords to think about this point before Report stage.
Lord SOMERS: I entirely agree with the noble Baroness that self-sown trees can be extremely useful. However, they can also be an infernal nuisance, as I well know by the number of self-sown suckers that I have had to pull out in my garden. I think that "self-sown" is certainly the solution, but I would join with other noble Lords in pointing out, Who knows whether a tree a 100 years-old is self-sown? One could not possibly tell. Therefore, possibly a combination of the two—namely, "self-sown trees of under three years old "—might be the solution. In any case, that can be put right at the Report stage.
Lord BALERNO: My noble friend Lord Somers referred to "suckers", but they are not self-sown trees. A self-sown tree is one that has grown from a seed. So if we want to be correct scientifically we need to watch out.
Lord SOMERS: I am sorry, my Lords, that was entirely a mistake on my part. I recognised it the moment that I sat down—indeed practically the moment I said it. Suckers are not, of course, self-sown trees. I meant to say "seedlings".
Lord KILBRACKEN: I think that we all want to have another think about this. I would at present be in favour of some such phrase as "naturally regenerated trees under 10 years old". However, I would not dream of suggesting that as a manuscript amendment and will keep it instead for the Report stage. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2, as amended, agreed to.
Clause 3 [Notice of Planting]:
The EARL of CORK and ORRERY The EARL of CORK and ORRERY moved Amendment No. 14:
Page 2, line 1, leave out from ("shall") to ("that") in line 2 and insert ("record").
The noble Earl said: I beg to move Amendment No. 14 and I should like to speak to Amendment No. 15 at the same time. By means of these two amendments I have one small hope of attracting a little approval from my noble friend Lord Mowbray and Stourton on behalf of the Government. The clause itself provides for a rather elaborate procedure under subsection (1) requiring the local authority to give notice in writing to the Secretary of State. That is a simple enough thing to say, but it is a pretty elaborate process. I do not know whether the Secretary of State for the Environment will be altogether delighted to have these postcards arriving on his desk daily. It is a fairly elaborate piece of bureaucracy which will do nothing much beyond simply irritating the local authorities who have to compile them; the inspectors wo have to see that they are compiled; and those persons in the Ministry who are destined to receive them and file them carefully in their pigeonholes.
Therefore, I would suggest—and this amendment does so suggest—that, instead of all that, the local authority should simply be required to keep a book in which they shall make a note of everything that they do under the terms of the Bill, and that book, therefore, should be available for any inspector who comes from the Ministry to see that they are doing their job properly and to find out what has been done. The same possibility shall be open to any member of the public who cares to go and ask. I beg to move.
Lord MOWBRAY and SOURTON: I should like to assure my noble friend Lord Cork and Orrery that the Government would welcome this reduction in the bureaucratic machinery necessary for the Bill. Nevertheless, even with these two amendments, the local authorities will still be left with additional bureaucratic authority. However, these two amendments do improve the situation.
Lord KILBRACKEN: I should like to support the noble Earl on this amendment. I wonder whether this is the right moment
1720
to raise the question of penalties or sanctions. What happens if the local authority does not keep up the record—if the amendment is accepted—or does not give notice as required in the Bill at present? What happens, indeed, if they cut down all the trees in the area and tell the Government to go to blazes? There is absolutely no penalty provided, no offence created, and no way in which the authorities call be compelled to comply with the Act in any way at all. I have never pretended to be a lawyer, but it seems to me that the law requires some penalty and that this has to be inserted at some stage and some place—whether here or somewhere else—in the Bill. I hope that the noble Lord will agree with me and will try to insert something along those lines before the Report stage.
Lord SOMERS: The noble Lord, Lord Kilbracken, has drawn a pretty grizzly picture of what might happen. I quite agree that it is a weakness in the Bill that there is no penalty for not complying with it. On the other hand, I must confess that what penalties to supply and how to enforce them is at the moment beyond me. Apart from that, I am perfectly happy about the amendment and hope that the Committee will accept it.
Lord WYNNE-JONES: Is there not one further point which would require altering? I am looking at line 10 where the word "notice" is used again. Should not that read "record"?
Lord KILBRACKEN: That is covered by Amendment No. 17.
The Earl of CORK and ORRERY: I should have spoken to that later amendment. The amendment to which the noble Lord, Lord Wynne-Jones, referred, will arise in a moment. I should like to stick for the moment to the amendment presently under discussion. I entirely take the point made by the noble Lord, Lord Kilbracken. I am not at all sure that it has any particular effect on the amendment or this subsection, because I do not know whether this is necessarily the appropriate place to insert any penalty clause. Whether it is or is not, perhaps it ought to go in somewhere else. I suggest that the amendment might be allowed to pass now and that another

1721
amendment be put down to introduce a penalty clause at a later stage.
On Question, amendment agreed to.
The Earl of CORK and ORRERY The Earl of CORK and ORRERY moved Amendment No. 15:
Page 2, line 4, leave out ("notice") and insert ("record").
The noble Earl said: I beg to move Amendment No. 15. This amendment is consequential on the last amendment.
On Question, amendment agreed to.
Lord KILBRACKEN Lord KILBRACKEN moved Amendment No. 16:
Page 2, line 7, after ("planted") insert—
("() the number of trees (a) felled or destroyed and (b) planted;").
The noble Lord said: I beg to move Amendment No. 16. In the record—as it now is—which has to be kept by the local authority, certain particulars have to he recorded; namely, the date of the felling of the trees, the date of the planting of the new trees, and the place or places at which the new trees have been planted. However, it seems to me that the obvious omission from that list is the number of trees that were cut down and the number of trees that were planted. It seems clear that that is a vital statistic that should be included, and for that reason I beg to move this amendment.
Lord MOWBRAY and STOURTON: I should just like to say that, if this register were to serve any useful purpose, this is a very sensible amendment.
On Question, amendment agreed to.
The Earl of CORK and ORRERY The Earl of CORK and ORRERY moved Amendment Nos. 17 and 18:
Page 2, line 10, leave out ("notice shall be given") and insert ("record shall be made") line 11, at end insert—
("(3) Records made under this section shall be available for inspection by the Secretary of State and by any member of the public on request").
The noble Earl said: I should have spoken to Amendments Nos. 17 and 18 when I spoke to Amendments Nos. 14 and 15. They are both consequential on Amendment No. 14. I beg to move, these amendments en bloc.
On Question, amendments agreed to.
Clause 3, as amended, agreed to. Clause 4 agreed to.
Clause 5 [Local authority regulations]:
6.30 p.m.
Lord SOMERS Lord SOMERS moved Amendment No. 19:
Page 2, line 15, leave out ("supersedes") and insert ("shall apply notwithstanding").
The noble Lord said: I have tabled this amendment because I want to destroy any impression that I wish to interfere with such arrangements as have been made by local authorities for tree-planting. I recognise the fact, of course, that many of them have made excellent arrangements, and I do not wish to interfere with those in any way. This clause is merely to apply to such authorities where either their own regulations are not sufficient or perhaps they have no regulations at all. I beg to move.
The Earl of CORK and ORRERY: I should like to speak to the next amendment, to leave out clause 5, but I understand that there is no way in which I can do so at present. The noble Lord, Lord Somers, wants to omit the word "supersedes" and insert "shall apply notwithstanding". It appears to me to be unnecessary to have anything like this at all. If there is a clash between an Act of Parliament and a local regulation, no doubt the Act of Parliament will supervene and have rights over the matter. But the noble Lord wants to insert "shall apply notwithstanding". I do not think that it is possible for a local authority regulation to defeat an Act of Parliament. Therefore, if nothing is said, and if this clause is omitted entirely, any regulation made by a local authority which is in conflict with this Bill will automatically fall, and the result proposed by the noble Lord, Lord Somers, in his amendment will occur; that is to say, the Bill will apply notwithstanding the local government regulation. This amendment appears to be unnecessary and, indeed, ineffectual.
Lord SOMERS: What about those councils which have no regulations at the moment?
The Earl of CORK and ORRERY: If there are no regulations I do not see to what the clause applies.
Lord MOWBRAY and STOURTON: If it is of any help, the advice from my department is that either Amendment No. 19 or the amendment of the noble Earl would be an improvement on the Bill as it stands, and it does not really matter which one. However, obviously, we cannot have both. Either of them would be suitable.
Lord KILBRACKEN: What is suitable is not always the best solution, so perhaps we should leave this out altogether.
Lord SOMERS: I can only say what a relief it is to have Government backing at last.
The DEPUTY CHAIRMAN of COMMITTEES (Earl Cathcart): As it appears that fewer than 30 Lords have voted, in accordance with Standing Order No. 54 I declare the Question not decided, and pursuant to the Standing Order the House will now resume.
House resumed accordingly.

PORT OF LONDON (FINANCIAL ASSISTANCE) BILL
Brought from the Commons endorsed with the certificate from the Speaker that the Bill is a Money Bill within the meaning of the Parliament Act 1911; read la, and to be printed.

CONTEMPT OF COURT AND THE PHILLIMORE REPORT
6.44 p.m.
Lord ELWYN-JONES: My Lords, in
On Question, Whether Clause 5, as amended, shall stand part of the Bill?
The Earl of CORK and ORRERY: In spite of what my noble friend on the Front Bench says, I still regret to say that there is absolutely no point in the amendment to which the Committee has just agreed. I have said why I think it is useless, and I beg to move that Clause 5 be omitted from the Bill.
6.34 p.m.
On Question, Whether Clause 5, as amended, shall stand part of the Bill?
Their Lordships divided: Contents, 9; Not-Contents, 11.

CONTENTS

Balerno, L.

Hale, L.

O'Brien of Lothbury, L. [Teller.]

Beswick, L.

Houghton of Sowerby, L.

Clifford of Chudleigh, L.

Monson, L.

Somers, L. [Teller.]

George-Brown, L.

NOT-CONTENTS

Abinger, L.

Glenkinglas, L. [Teller.]

Kimberly, E.

Buxton of Alsa, L.

Harmar-Nicholls, L.

Mottistone, L.

Cork and Orrery, E. [Teller.]

Inglewood, L.

Orkney, E.

Energlyn, L.

Kilbracken, L.

On Question, amendment agreed to.

the temporary absence of my noble friend Lord Ardwick, would it be convenient for the House to adjourn for a few momments until he is found?
Lord DENHAM: My Lords, I think it would probably be for the convenience of your Lordships if this were to happen. Shall we say for five minutes?
Lord ELWYN-JONES: My Lords, I see that my noble friend has now entered the Chamber, in what might be called the nick of time.
Lord ARDWICK Lord ARDWICK rose to ask her Majesty's Government whether, in legislating on contempt they will have regard to the findings of the Phillimore Committee on the tests that should be applied to determine whether a contempt has been committed and what the starting point of liability should be in civil and in criminal

1725
cases. The noble Lord said: My Lords, may I have a moment to get my breath? I think I came from the Guest Room in five seconds flat. It is of course presumptuous in a House which contains the most eminent lawyers in the land for a lay Peer to put even an Unstarred Question, the most humble basis for a short debate, on such a difficult branch of the law as contempt. Indeed, contempt was described by the noble and learned Lord, Lord Rawlinson, in a previous debate as probbably the most complex of all subjects. Yet I feel it is necessary to do so. The law of contempt, says the Phillimore Report, falls short of the certainty it ought to have. And I quote:
"this is especially true of those parts of the law which affect the press".
It is as a newspaper man that I speak: as a former editor who has trembled and, I fear, retreated before the uncertainties of the law. The contempt can happen to almost any of us. Indeed, even the saintly C. P. Scott once went to court with his pyjamas and his toothbrush, thinking he would not return to his office. Fortunately, the judge was Lord Hewart, who had been a leader writer of the Guardian, and he did not take too harsh a view of the mistake the Guardian had made.
As I say, I speak as a former editor, and I am, I should say, chairman of the Press Freedom Committee of the Commonwealth Press Union, but today I speak only for myself, though with the full encouragement of some journalistic colleagues. I trembled because in my earlier posts as editor or as acting editor I did not enjoy the advice of a resident lawyer specialising in contempt and libel, as I did later, when I was editing a national newspaper. Indeed, after an editor had been sent to prison and the Lord Chief Justice had said that the long arm of the law might stretch out now to directors, there was very generous provision for lawyers in newspaper offices. But in my early days I had to make my own decisions, and often they were hasty decisions. I had to take a risk or lose a story to a bolder competitor. But of course it is not just for the comfort and the convenience of editors that changes in the law of contempt are needed. The freedom of the press to give information is also the freedom of the public to receive it.
The late Lord Morris of Borth-y-Gest said in the last debate on this subject:
"We look to our newspapers to inform us in regard to current events: to give guidance on matters of public importance; to expose all forms of tyranny, corruption, evil practices or harsh dealings. We must not restrict the ability of the press to do all of those things unless it is really necessary to do so".
The newspaper press of Britain operates under tighter restraints than any other press in the Western democratic world. There are some people who would welcome their wholesale removal. I am not one of those. I do not want to see trial by newspaper or, what is even worse, trial by the more emotive medium of television. What I and many others look for is an easing of the restraints where they chafe and inhibit most, and where it can be argued that those restraints do more harm than good. There is a maxim taught to every young reporter, "When in doubt leave out"; but what is a prudent course for novices is a pusillanimous one for mature editors. While they ought not to relax their care and vigilance, they should not be placed in unnecessary danger in carrying out their public responsibilities.
The Phillimore Committee spent over three years investigating how the law of contempt actually operates, and much of their time was spent looking in depth into the practical problems of ensuring that a proper balance is kept between the right of the citizen to a fair trial and the freedom of the press. The report was well received and the recommendations, if they were adopted by the Government, would bring a little more clarity to the law of contempt and would slightly tilt the balance towards the freedom of the press. When the noble and learned Lord, Lord Rawlinson, said he thought Phillimore had just about got it right, he was voicing a general view, and I hope the Government will tell us today that they share that view.
The report was published in 1974. Four years later my noble and learned friend the then Lord Chancellor presented a discussion paper to Parliament. It summarised Phillimore's arguments with great fairness, but it also seemed to the noble and learned Lord, Lord Gardiner, as if somebody in the office of the Lord Chancellor had been told, "Think out all the possible objections to the recommen-

1727
dations being made". That was a perfectly reputable course, but the impression one got from that discussion paper was that the Government of the day were not only cautious but possibly sceptical of one or two of the recommendations.
On the initiative of my noble friend Lord Lloyd of Hampstead, the Lord Chancellor's paper was debated in this House in December 1978, and it was a debate in which no lay Peer dared intervene, not even those with interests in the media. I was away at Strasbourg fighting for my country's lamb or something of that character, and my reason for raising the issue once again is that, since the last debate was held, we have a new Government and that new Government have undertaken to legislate at last on contempt.
It has been said that the decision of the Strasbourg Court of Human Rights has made legislation necessary. That court found that the House of Lords, in upholding an injunction to prevent the Sunday Times from publishing an article on the thalidomide tragedy, was in violation of the Convention on Human Rights, even though the purpose of the Lords' decision was to avoid prejudice to an impending action. That Strasbourg decision lies outside the narrow scope of my Question tonight, although it would be interesting to have even a hint of how the Government's mind is working on the problem that that decision poses. I believe it is unlikely that the Bill on contempt will be seen this Session, so I thought it would be useful if one could elicit not what the Government intend exactly to do—that would be an impossibly high ambition—but to learn their broad philosophic approach to the subject.
When I put the Question down there was some apprehension in Fleet Street that the Government might not be convinced of the wisdom of some of the Phillimore recommendations which the newspapers themselves would most warmly welcome, and a subsequent speech by the Attorney General to a joint meeting of the Law Society and the Guild of Editors gave a hint that there was some ground for such apprehension. For this brief debate I have tried to keep to the narrowest of paths. I do not wish to challenge the need for restraint on the interviewing of jurors or the purchase of witness's stories for publication after trial.
The first question I wish to put is whether the Government are broadly in accord with Phillimore in its proposal to change the test for contempt. The current test, it seems, is whether a serious risk has been created that the course of justice may be interfered with. The accent is on the word "risk"—what my honourable friend in another place, Mr. Arthur Davidson, described as a theoretical, tangential risk of prejudice that may be used to frighten an editor. Phillimore takes the accent of seriousness away from the word "risk" and puts it later in the sentence. The real evil, it suggests, is the risk that the course of justice will be seriously prejudiced or impeded. As the discussion paper pointed out:
"The requirement of serious prejudice embodies in itself a significant narrowing of the scope of contempt, and a corresponding increase in freedom of publication".
It would be comforting if the Lord Chancellor were to say tonight that the Government accept this proposition. I have heard people claim—with what authority I do not know—that this in itself would bring us fairly closely into line with the Convention on Human Rights.
The next test is at what point in time the law of contempt should begin to impose strict liability in criminal proceedings. In England and Wales, we are advised, liability begins now when proceedings are imminent. The problem always is, how imminent is imminent? How does one measure future time? Phillimore found "imminence" generally to be unacceptably uncertain and an unnecessary inhibition on press freedom.
The committee said:
"The evidence submitted to us is that this uncertainty has an inhibiting effect on the freedom of the press which is out of proportion to any value there may be in preserving it".
Instead, Phillimore suggested, liability should begin in criminal cases only when the court proceedings have formally begun; that is, when the accused is charged or a summons served. Of course, there is always danger of prejudicing a subsequent trial, even by what is published on the very day the crime is discovered, and one Scottish judge believed that liability should begin as the police begin their investigation. That is obviously too early.
But is the Phillimore recommendation dangerously late? There are fears that this is the view the Government are now taking, for according to the legal correspondent of the Daily Telegraph, the Attorney General, at the conference to which I have referred, indicated that the Government intend to substitute for the test of "imminence" a provision that risk of contempt in pending criminal trials will run from the time an accused is arrested or a summons or warrant is issued.
This is one of the two feasible alternatives put to Phillimore. The committee conceded that the later date at which liability might begin had one obvious disadvantage; it would allow fairly unrestricted comment during a police search for a wanted man, although that search might culminate at any moment in an arrest and subsequent charge. And yet, the committee point out in firmly rejecting that solution, a warrant for arrest is usually issued in private and even an actual arrest might not, for good reasons, immediately be announced by the police. The press then might not know that they were at risk. Suppose the wanted man was never found. Suppose he got away with the swag to South America. Publicity would at least theoretically be restricted so long as the warrant for his arrest remained in being. In some ways the Attorney's proposed new rule could be more restrictive than the present one of imminence. One wonders what the police, who often call on the press for help, think of making the issue of a warrant the point of commencement.
When we come to the question of where liability should begin in civil cases, the layman—and perhaps the lawyer, too—sends for wet towels to put around his head. So I shall fall back on the discussion paper for its neat summary. The Phillimore majority recommendations are that liability should start when an action is set down in the superior court, though it may be nine months before the case is heard, and that in other cases it should start from the date on which proceedings are commenced. This has at least one great virtue: a later starting point, and so more freedom of comment. Its drawback is that of having different rules for different
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proceedings and possible confusion over interlocutory proceedings.
There are some who would like an even later date if there was such a discernible point in time, but it seems that there is not. There are others who would like liability to begin earlier—that is, on the date on which main proceedings are begun. This, it is argued, would not be too onerous if the test for contempt were narrowed in the way that Phillimore recommends. I myself should like to see the Government stick to Phillimore. There is no solution of this general problem of contempt which does not throw up very strong arguments both for and against. There is this to be said for Phillimore: that the committee did look deeply into the practicalities; that it carried out quite enormous research; that it did receive a massive amount of evidence, written and oral; and that, moreover, it was a committee of high competence.
My Lords, there are two tendencies at work in society today. One is a growing distaste for the media—as though they were responsible for the evils that they report to us. The other is a kind of public determination to accept fewer limitations on the freedom of expression. The restraint on the media, the need to ensure a fair trial, and the public need for information all have to be kept in delicate balance. Phillimore gets it just about right, and I hope that when the Government come to legislate they, too, will get it just about right.
7.2 p.m.
Lord WIGODER: My Lords, those of us who are participating in this short debate will, I believe, first want to express our gratitude to those noble Lords who abstained from voting in the previous Division. That has precipitated this discussion at a somewhat earlier hour than might otherwise have been the case. Your Lordships will also want me to thank the noble Lord, Lord Ardwick, for enabling us to discuss this important matter yet again, and yet at a time which is of very great importance. There have over the years been frequent discussions of the issues involved in this Unstarred Question. The history of the matter is known to your Lordships. In the past 10 years the question has dragged a rather weary way—from 1971 when the Phillimore Committee was first established,

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to 1974 when it reported, to the years of discussion between 1974 and 1978, and eventually to the issue of the Green Paper in 1978.
That has been followed by an indication in the last gracious Speech that there will be legislation in the near future, and perhaps it would be helpful if the noble and learned Lord, when he replies to the debate this evening, is able to indicate whether there is still to be an opportunity for such legislation to be introduced in this Session, despite the very crowded nature of the parliamentary timetable. I mention that point only because if it now appears likely that the introduction of a Bill will have to wait until the next Session, no doubt the noble and learned Lord on the Woolsack will bear in mind that this is the kind of measure that might be peculiarly suitable to be introduced into your Lordships' House at the beginning of a Session.
The delays in this matter have been very long since the Phillimore Committee was set up. It is tempting—and on previous occasions I have indeed been tempted—to suggest that in a way the routine method by which we deal with difficult problems in this country is that we appoint Royal Commissions or committees, we then have Green Papers and unlimited discussion, and thus decisions can be avoided altogether. I am not entirely sure that that is a fair comment in relation to this particular problem, because I believe that the more one goes into it, the more difficult some of its ramifications appear to be. The importance of this discussion this evening, and the reason why we are particularly grateful to the noble Lord, Lord Ardwick, for raising the matter, is that it gives what may be a final opportunity for comment in your Lordships' House on the issues that are raised, before the Government prepare the Bill which they have promised to bring forward.
The problems are clear. First, there is the clash of two important principles, the clash of right against right, the conflict that may arise between the freedom of the press, its right not only to report, but to investigate and uncover, and to probe; and the quite different, but equally important, right that the administration of justice should remain pure, unsullied and untainted from outside sources.
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I hope that this is perhaps an area into which commonsense can enter and that lawyers will not be over-sensitive about possible fanciful risks to the administration of justice. I hope, too, that lawyers will not seek to overestimate or to exaggerate the effect which possible press comment can have, particularly on juries in criminal trials. Certainly my own experience, and I think that of many of my colleagues, is that juries, once a trial begins, are much less susceptible to outside comment than is sometimes popularly supposed, and that if they are directed, as of course they are where there is such comment, to put out of their minds all matters except the evidence actually given in court, they are able to do that with very remarkable success.
The issues raised by Phillimore and by the Green Paper are many and varied, and if I may say so, the noble Lord, Lord Ardwick, has, most helpfully, concentrated this evening on only two of the principal issues upon which it might be helpful to make merely the odd comment. The first issue that the noble Lord raises is the test of contempt, by which I assume he means, as appears from his observations, what is to be the definition of the strict liability for contempt of court. The noble Lord has mentioned to your Lordships the definition that was proposed in the Phillimore Committee's report—that there must be a risk that the course of justice will be seriously impeded or prejudiced—and as far as I can see that proposed test has not met with any disapproval from any responsible organisation. The Phillimore Committee propose that that test should be made statutory. That proposal has received widespread support, and I hope that the noble and learned Lord on the Woolsack, when he replies to the debate, will be able to indicate that there are no real problems with regard to the test proposed by the Phillimore Committee.
The other issue which the noble Lord raises is a much more difficult one; it is the issue as to the time from which strict liability should run in criminal and civil proceedings. I know even less about civil proceedings than I know about criminal proceedings, and I wish to concentrate very much on the criminal side of the matter. In criminal proceedings the issue is raised at perhaps its starkest. At one moment the press is performing the most

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invaluable of public services. It can be uncovering crime and corruption in high places, which sometimes it may be able to do better than can the ordinary machinery of law enforcement.
Indeed much is owed in recent years to the investigative journalism carried out by the serious press in this direction. That function is invaluable; and yet, all of a sudden, a moment comes when, if the press continue to probe and to comment, a fair trial becomes impossible for the very people who have been uncovered by the activities of the press. It is therefore of crucial importance, I think, both to the press and to those who are interested in the proper and fair administration of justice, that, if possible, there should be a precision about the point at which what is at the one moment desirable suddenly becomes totally undesirable.
The difficulty is that this precision is not as easily obtainable as one would hope. The present position, as the noble Lord, Lord Ardwick, has indicated, is that, in criminal proceedings, strict liability for contempt appears to run once proceedings are imminent. The noble Lord has pointed out the difficulties to which that expression has given rise, and the problems as the Phillimore Committee explained them. There is the second proposition, which is the one which was put forward by the Attorney-General recently, which appears to be that the time should run from the moment when an accused person is arrested or a summons or a warrant is issued. In relation to that point, comment has been made, quite rightly, that of course it may not be known when an arrest has happened; and, indeed, that a warrant, when issued, may run indefinitely—for years, indeed—before the particular person is arrested.
I see, of course, the difficulty that is levelled against the proposal made by Sir Michael Havers; and yet I think it must be borne in mind that if absolute precision is not possible, the press may on occasions act where an accused person has been arrested and they do not know of the fact. This, I think, would not make them necessarily liable, because, as the Green Paper points out, and quite rightly so, there is in Section 11 of the 1960 Administration of Justice Act a defence to the media if they find themselves involved,
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through ignorance, in publishing matters unaware of the fact that, for example, a person has been arrested. The alternative proposal is the one which was put forward by the Phillimore Committee and which the noble Lord, Lord Ardwick, appears to favour. That is the one in which the time is said to run from the moment when a man is charged or when a summons is served. That has the very definite advantage of being precise and clear. On reflection, perhaps, I think it has something of a disadvantage in that it may be so late in the process of the criminal courts that it may encourage publication of matter at a time when it is in fact bound to prejudice the fair trial of a person.
I have in mind, for example, the provisions of the Prevention of Terrorism Act. There, a person can be arrested, questioned and detained for five days, or even longer in appropriate circumstances, before he is in fact charged. Under the Phillimore proposals—and, of course, I do not think the Prevention of Terrorism Act was in force at that time—throughout that period of time it would be open to the press to comment quite freely on the particular person who has been detained, on his previous activities and on all the surrounding information relating to the alleged offence that the press can find; and this, I think, might give rise to very real difficulties when it came to the fair trial of that particular person. Equally, the Phillimore Committee's proposal about a summons, that it should run from the date of the issue of a summons, can again, I think, give rise to serious difficulties. An offence can be discovered by the press, indeed, or by the police, it can be written up at length and it can be known that a summons has been applied for, and yet, if Phillimore is to be adopted, it would mean that comment could continue quite unfettered after the summons has been granted until such moment as, by chance, the police are able to serve the summons on a particular defendant.
It may be, on reflection, that the Phillimore Committee's proposals, although they have the very great virtue of precision, have the disadvantage that they put the time back so late that they will encourage comment in ways that may seriously prejudice the administration of justice. It may be—and I do not always say this when I address your Lordships' House—that perhaps the proposals which the

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Government appear to have in mind, if Sir Michael Havers was correctly reported, have something to be said for them because of the difficulty in any alternative propositions. I have dealt almost entirely with the question of the time from which strict liability runs in criminal proceedings. In civil proceedings it is perhaps of very much less consequence. There are very few jury actions, and it may be that contempt is a rather academic proposition in cases in which juries are not concerned. But the proposal there that contempt should run from the time when the proceedings are set down does not appear to give rise to any very real difficulties.
Perhaps I may, in two sentences, be out of order and ask the noble and learned Lord on the Woolsack about two other matters which are not specifically covered by the terms of the Unstarred Question: first, whether it is right that the Government are contemplating including in their legislation proposals to deal with the situation where jurors disclose information about what has taken place in the jury room during a criminal trial or at the end of a criminal trial; and, secondly, whether the Government are contemplating including in the legislation proposals to deal with contingency payments to witnesses, which has been something of a blot on our system of justice, perhaps, in recent years. My Lords, we are grateful indeed to the noble Lord, Lord Ardwick, for raising these matters, and we look forward with great interest to the observations in reply from the noble and learned Lord in due course.
7.18 p.m.
Lord LLOYD of HAMPSTEAD: My Lords, I, too, should like to express my gratitude to my noble friend Lord Ardwick for giving us this opportunity to discuss this topic. I say that particularly as I was responsible for initiating the earlier discussion, which took place in December 1978. Time seems to pass in these matters; year succeeds year, and yet we still find that nothing has been implemented. It is fair to say, I think, in relation to the time of our previous debate, that we were all awaiting, perhaps with some apprehension, the outcome of the Sunday Times thalidomide case, which was then before the European Court of Human Rights. I
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say it was with some apprehension because I think what was apprehended was not so much that that court might disagree with the view that the House of Lords took of the particular circumstances in the thalidomide case but rather because it was feared that the Court of Human Rights might possibly take a view adverse to the strict system of control over what has been called trial by newspaper that had been so skilfully and valuably developed by our common law judges.
In the event, however, we now have the judgment, which was delivered as long ago as March 1979, and we have now ascertained, of course, that that court did not reach a decision which in any way cast doubts on the validity of our desire to control trial by the mass media. In fact, that decision could be said to have come within a very narrow compass. It was a decision of 11 judges against nine. The view that the majority took was that, within the margin of appreciation which was allowed to the national courts under the convention, nevertheless the House of Lords in applying its test of whether the issues had been prejudged by the publication in the Sunday Times had not adequately appreciated the relevant circumstances. The Court of Human Rights, examining those circumstances, came to a different conclusion. I do not wish to weary your Lordships with details of the findings of the court which, as the case has been fully reported, are readily available. I suggest that we do not need to quarrel with what was a very moderate judgment and that really the only question is how best we can ensure, so far as it can be ensured, that there is less likely to be any conflict between the decisions of our own courts and any subsequent applications to the Court of Human Rights.
The Phillimore test, which has been referred to earlier by the two noble Lords who have spoken, I do not need to repeat. That test has been widely applauded and I should have thought that if it were adopted into legislation it would go a long way towards precluding any likelihood of disagreement between the decisions of our courts in the future and a possible decision of the Court of Human Rights.
However we modify our law in this respect, one must always bear in mind that there is no way in which we can

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ensure absolutely that there will be no conflict in future between our courts and the Court of Human Rights. The margin of appreciation will always remain as between the two tribunals, and even if we were to adopt—as some have argued not necessarily in this particular context but in the general form that we should adopt the actual words of the convention by incorporating it into our law, we should then have the issue to be decided by our courts; namely, whether a restriction on freedom of speech was necessary in a democratic society for the purpose of maintaining the authority of the judiciary.
I think that it would be difficult to dispute the point that such a rule would provide no firm criteria whatsoever for a national court to decide an issue of this sort. From the point of view of our courts, this might well not be regarded as a genuinely justiciable issue at all—particularly in regard to what is necessary in a democratic society. I venture to suggest, therefore, that it would be far better for our law to follow Phillimore in modifying the test to be applied on the lines that Phillimore suggested and then leave it to the Court of Human Rights to say, in accordance with their particular articles under the convention, whether in any subsequent case, any marginal case, our courts had conceivably reached a decision which was not in total accordance with the Convention of Human Rights.
As I have already said, I think that if that change were made in our law, the prospect of any future disagreement between the two tribunals is minimal. The really crucial point is that, far from having cast any doubt on the validity of our approach in controlling the mass media where trials are involved, the Court of Human Rights made it clear that, in general, our law of contempt fell within the scope of what was permissible within the convention; so that only a very marginal change (if any) needs to be made in our law to bring the two into line. Also, I think it is a fair point to make that there is a good deal of difference between a civil trial and a criminal trial and the need for a severe measure of control by way of the law of contempt in civil cases is probably a good deal less pressing than in the criminal sphere—although I would rather doubt, despite the views that have been expressed in
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some quarters, that we should be justified in eliminating this control altogether; and, certainly, Phillimore was not in favour of so doing.
I wish to add only a very brief word to the further issue, which is the question of the appropriate starting point for liability. In the case of civil trials, Phillimore suggested that the best course to adopt would be to take the date when an action is set down for trial as the date when the law of contempt would come into operation. That is something which would create a number of difficulties, many of them of a rather technical character, but the fact of the matter is that if one is to choose a point of some certainty, it is difficult to see what other date one could reasonably suggest. Mr. Robin Day in his interesting dissenting note to the Phillimore Report suggested taking some date such as two weeks before the actual trial; but this, again, is a matter which would create probably even more considerable technical difficulties than the date of setting down. Therefore, on the whole, Phillimore in this, as in so many other matters, probably reached the right conclusion.
In regard to criminal cases, I would wish to say very little indeed. I listened attentively to the way in which the noble Lord, Lord Wigoder, put his various arguments on this matter. I think that anyone listening to the way he presented it would agree that it is an extremely difficult matter to determine. There are advantages and disadvantages on both sides. I confess that I personally lack sufficient experience in regard to criminal matters to be able to evaluate this controversy to a sufficient degree to express a firm view either way. The only suggestion that I would make in conclusion is that it is desirable, at any rate, that some clarification be made of the existing position, which is admitted to be very unsatisfactory. Whether it be on the lines that Phillimore suggested or in the way in which, apparently, there have been some indications that the Government may be thinking, I think that few would dispute that, by either method, the present state of the law would be considerably improved.
7.30 p.m.
Lord GARDINER: My Lords, this has always been a very troublesome subject and I am indebted to a publication of the

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Writers and Scholars Educational Trust, in association with the British Institute of Human Rights, for a review not only of the subject as a whole but with special reference to the thalidomide case. Although a former chairman and former governor of the latter, I have had nothing to do with the publication. It reminds us that it was in 1785 that the great Erskine said:
"By this proceeding the party offended is the judge; (he) creates the offence without any previous promulgation; avoids the doubtful and tedious ceremony of proof, by forcing the Defendant to accuse himself (i.e. without indictment or jury); and inflicts an arbitrary punishment which if not submitted to and reverenced by the nation as law (i.e. through parliamentary enactment) is to be the parent of new contempts to be punished like the former."
In 1798 another legal commentator asked:
"To what purpose was it to destroy the Star Chamber if it was intended that the House of Lords should exercise the like arbitrary power?"
Mr. Gladstone promised to introduce a Bill, which he did in your Lordships' House. But it had to be withdrawn in the other Chamber because of the pressure of Irish affairs. Other Bills were introduced in 1889, 1892, 1894, 1896, 1901, 1902 and 1908. In April 1906 the House of Commons passed a resolution that:
"The jurisdiction of judges in dealing with contempt of court is practically arbitrary and unlimited and calls for the action of Parliament with a view to its definition and limitation".
A similar resolution was passed by them two years later. Everybody was then overcome by all that initiative and practically nothing happened until the Justice report in 1959. That resulted in two improvements recommended by Justice: namely, first, a defence of innocent dissemination; and, secondly, that there ought to be a right of appeal.
Then we had Aberfan and the Salmon report and a White Paper was produced. There were Private Members' Bills which again failed. At long last, the Phillimore Committee was appointed and reported. Then—and I had forgotten this—in July 1977 there was the final report of the Royal Commission on the Press. Referring to the general welcome extended to the Phillimore Committee's recommendations, it said:
"They would provide an acceptable and perfectly practical solution to the potentially conflicting requirements of free reporting, fair and unprejudiced legal proceedings and certainty as to what the law is. We wish only to stress the desirability of early action to clarify the law".
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Just as today we are indebted to my noble friend Lord Ardwick for enabling us to consider this question again, so in 1978 we were given that privilege by my noble friend Lord Lloyd of Hampstead. In that debate, the noble Lord, Lord Lloyd, indicated that regarding the test he would accept the Phillimore recommendation but was rather more doubtful about the starting point. The noble and learned Lord, Lord Rawlinson of Ewell, speaking I think from the Conservative Front Bench, said (at column 339 of Hansard of 7th December 1978):
"This very powerful committee spent three and a half years on the matter. It was the subject of detailed and thorough study—much greater study than can be given by learned judges who have to face this problem now and then (fortunately not very often) when a case of contempt of court appears before them. I, like the noble and learned Lord the Lord Chancellor, appeared before the committee as a witness and I can testify to the care and penetration with which they probed the problem. Their conclusions, therefore, must surely bear the greatest weight. The onus is upon those who reject their conclusions to establish the reasons why their conclusions should he rejected."
In conclusion, he said:
"So I consider that in modern times we should accept the main Phillimore majority recommendations".
The noble Lord, Lord Widoger, in substance said the same and so did I. The recommendations were supported by the noble and learned Lord, Lord Denning; Lord Morris of Borth-y-Gest, was more doubtful as to whether legislation was really necessary. The noble and learned Lord, Lord Fraser of Tullybelton, preferred with regard to the time the Scottish position to the English position.
My noble and learned friend Lord Elwyn-Jones told us that the Government had not yet made up their minds. They had very helpfully published a Green Paper putting forward every possible objection to everything that the committee had recommended, which was a great help to us because this meant we had all the possible objections in our minds when we came to the conclusion that the Phillimore Committee were right. As the noble and learned Lord made clear, the Government had not yet come to any conclusion in the matter. He said—obviously rightly—there were two things we had to wait for before coming to a final conclusion: one t was the expected report of the Law

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Commission on offences relating to interference with the course of justice; and the other was the decision of the European Court of Justice in the thalidomide case.
I have read the Law Commission's report on offences relating to interference with the course of justice. Subject to the judgment of those who may follow me, it has not assisted me very much. It deals almost entirely with peripheral offences relating to interference with the course of justice, hardly at all with the question of contempt of court, and not at all, as far as I could see, on the only two parts of that which are raised by the Motion before the House.
So far as the decision of the European Court of Human Rights is concerned, they were obviously very familiar with the position here, including the Phillimore Committee's Report. They themselves pointed out that even the Green Paper seemed also to have been familiar with it. It does not differ from the main recommendations in question tonight of the Phillimore Committee. On the actual point at issue, their final conclusion was, in substance, to say, after dealing with the facts of the thalidomide case:
"The question of where responsibility lay in this kind of tragedy was a matter of public interest and did not cease to be so merely because the facts formed the background to pending legislation. The article may have obliged Distillers to comment in advance of their case, but may also have prevented unenlightened speculation. In these circumstances the court concluded that the restrictions did not correspond to a social need sufficiently pressing to outweigh the public interest in freedom of expression. The reasons for the injunction were therefore insufficient and the restraint was not proportionate to the legitimate aim pursued by the House of Lords and was not necessary in a democratic society for maintaining the authority of the judiciary: There has accordingly been a violation of Article 10.'".
My Lords, I am sure that we shall all he most interested to know what the view of the noble and learned Lord who sits on the Woolsack is as to the bearing of the two questions before the House on the decision of the European Court. May I say that my noble friend Lord Janner, whose name appears upon the list of speakers, is unfortunately detained elsewhere. He has asked me to say that there is a report, of which he has given me a copy, from the Law Society on the report of the Phillimore Committee.
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As far as I have been able to see, on the only two points before the House, they accept the first, which is the Phillimore recommendation as to what the test should be on what constitutes contempt, subject to the fact that they would like some provision making it clear that the defence does not apply to a publication which is specifically forbidden by some other part of the law. Secondly, they accept the proposed starting point. The report also deals with a lot of other matters in relation to contempt and the Phillimore Report, but they are not either of the two questions which alone are raised by the Motion before the House. Therefore, as far as I am concerned, I remain a Phillimore man. I thought it was an extremely good report and I would hope very much that, on the only two points raised in the Question before the House, we shall come to the conclusion that the Government should implement the recommendations of the Phillimore Committee.
7.41 p.m.
Lord JACOBSON: My Lords, may I join in expressing gratitude to my noble friend Lord Ardwick for giving us the opportunity of this debate. Like him, I have edited national newspapers. So far as I can remember, I have not been involved in contempt proceedings, but I put that down to good luck rather than good judgment. What worries editors about the aspect on which I should like to speak tonight is that no responsible journalist wants to see trial by the media or to see all restrictions on reporting and comment swept away: certainly not. But what worries editors most is the imprecision of the law as it stands. Not even the highly competent lawyers who advise editors can, in my experience, do more than explain the dangers of walking across a minefield where even the sappers who laid the mines have forgotten where they are. In Scotland, of course, the mines are laid even more thickly than in England or Wales.
The second main worry is the waywardness with which the law, it seems, is applied. As the Guardian newspaper pointed out on 3rd March 1980:
"The police themselves are frequently in breach of it (or at least abet breaches by newspapers and television) when they release names, photographs and other details of a person sought for questioning whose hearing in court may subsequently be prejudiced"

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The Guardian added:
"In civil cases there are serious conflicts between what the public interest may require and what silences either plaintiff or defendant should be able to rely on for a fair trial".
The Phillimore Committee came to the conclusion that the law as it stands contains uncertainties which impede and restrict reasonable freedom of speech; and that the law as it stands contains uncertainties which impede and restrict reasonable freedom of speech, and that the law should be amended and classified by statute so as to allow as much freedom of speech as is consistent with the basic purpose for which the law of contempt exists. That surely is the nub of the matter.
In regard to the area which most affects the daily production of newspapers, the starting point in criminal cases of liability, Phillimore recommended that contempt should apply from the moment a suspected person is charged or a summons served. That is precise and free from ambiguity and, from the point of view of journalists and the police, it is a workable arrangement. It appears that the Attorney General has it in mind that contempt in criminal cases should be applicable from the moment a summons or warrant for arrest is issued or an arrest is made. This formula seems to me to create new uncertainties and difficulties. It was considered by the Phillimore Committee and rejected on the grounds that a warrant for arrest is usually issued in private, and even an actual arrest may not be immediately announced by the police, for very good reasons. Newspapers may not be told by the police, when they inquire, whether a warrant has been issued or an arrest made, and so they would not know whether or not they were at risk. In my experience, it is a great deal easier to establish whether a charge has been made.
May I briefly refer to another recommendation in the Phillimore Report. Section 41 of the Criminal Justice Act 1925 prohibits the use of cameras in courts and their precincts. The prohibition of cameras in court is of course unarguable, but the definition of "precincts" is a source of some uncertainty and sometimes of friction between photographers and the police. The report suggested that a map or plan should be displayed, wherever
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practicable, indicating the boundaries of the precincts of the court. That would be useful and I hope that when there is legislation this recommendation will be included.
As other noble Lords have pointed out, it is five and a half years since this report was published. It is one of a number of reports on defamation, on official secrets and on other things relating to the press. The only progress we have had so far is represented by this useful discussion document. Successive Governments come in, professing the best of intentions in regard to the freedom of the press, and they go out having done precisely nothing. It sometimes makes those of us who are or have been journalists wonder whether the respect that politicians profess for a free press in a democratic society really exists. Here we have a report, to my mind a cautious report, that has had the approval of the vast majority of the press, of the Press Council, the Guild of Newspaper Editors and of outstanding legal minds on both sides of the House. May we hope that when the noble and learned Lord on the Woolsack rises he will have some words of cheer for us.
7.47 p.m.
Lord McGREGOR of DURRIS: My Lords, my noble friend Lord Ardwick has given us the opportunity to discuss where we should draw the line between the freedom of the press to contribute information and comment to public discussion and the constraints upon publication necessary to ensure the fair and proper administration of justice. Justice requires that a trial should not be endangered by prejudicial publication. Freedom of expression requires the minimum practicable uncertainty about the legal constraints upon publication which have to be observed. As the noble Lord, Lord Wigoder, pointed out, these "public goods" are of crucial importance to all citizens and not only to lawyers, newspaper men and broadcasters.
In so far as the terms of reference of the Royal Commisson on the Press appointed in 1974 related to the independence and editorial standards of the press, the Commission ought to have examined the law affecting the press. However, as my noble friend Lord Jacobson has said, the committees on privacy, the

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Official Secrets Act 1911, contempt of court and defamation all reported between 1972 and 1975, and the Royal Commission could not have traversed the same ground as had been covered by these expert committees. Their report of 1977, therefore, went little further than to make two general observations.
First, they urged on the Government the importance of acting with all possible speed and publishing a single Green Paper, or a White Paper with green edges, setting out their policy on all the recommendations of all the committees. The remits of these committees are closely related and bear directly on freedom of expression and hence on the freedom of the press.
Public discussion among experts and laymen was called for by the Green Paper on Contempt of Court published two years ago. Apart from the unhappy Bill on official secrets, this Green Paper has offered the only glimpse of a Government's thinking or policy on any of these matters. This is a sad comment on the official reception of the labours of hard-working committees. May we expect a response from the present Government to the Royal Commission's hope for a more general statement of policy that will include, but go beyond, the report of the Phillimore Committee?
All noble Lords who have contributed to this debate have pointed out that where we draw the line, between the proper administration of justice and the freedom of the press, turns on two issues of finding an acceptable test of contempt. All noble Lords who have spoken have agreed that the test recommended by Phillimore is sound, is justiciable and will meet the necessary requirements both of the administration of justice and of the press and broadcasting.
The other test which has to be considered is where in the legal process should be the starting point for strict liability. As a layman, I found the discussion on this, both in Phillimore and in the Green Paper, very confusing. Different starting points were proposed—the issue of a writ, the setting down for trial and various other proposals. All appear from the Green Paper to have more or less weighty disadvantages. I should have liked to be able to make a choice with information—
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its absence from the Green Paper disappointed me—about the quantitative consequences of different choices. For how long would the Press be constrained, if the starting point was the setting down or the issuance of a writ? I hope that when the recommendations of the Phillimore Committee, or some alternatives, come up for legislation, we shall be provided from the criminal and civil judicial statistics with that kind of information.
One issue which was touched upon, at least in its history, by the noble and learned Lord, Lord Gardiner, seems to have had almost no discussion at all. I refer to the court before which newspaper men or broadcasters, arraigned for contempt of court, are brought. As I understand it as a layman, we have a very curious procedure. Whoever is arraigned goes before the Divisional Court, the evidence is all given by affidavit, the court has in its armoury very severe sanctions—imprisonment and sequestration of property—yet those penalties are imposed after a trial from which, again, as I understand it, all the criminal safeguards are missing. There is no cross-examination of witnesses and the like.
The issue in such a case should, in every instance, go to the heart of where you draw the line between the two public goods which affect vitally the whole community. This seems to me to be a matter not for lawyers only but for ordinary citizens, and I should like to see such trials taking place in a criminal court, perhaps in the Crown Court, under ordinary criminal procedure, before severe criminal penalties are inflicted. But what matters in this field, as my noble friends who have extensive experience of editing national newspapers have pointed out, is that there should be certainty. Where there is uncertainty, we must have a half muzzled press. I therefore hope that the Government may be able to give us some expectation of future legislation in this area.
7.57 p.m.
Lord ELWYN-JONES: My Lords, the House will be grateful to my noble friend Lord Ardwick, speaking as an editor and journalist of great experience—as is my noble friend Lord Jacobson—for introducing this debate this evening on the law relating to contempt of court.

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The speech of my noble friend Lord Ardwick had the great quality of not being dogmatic, and conceded that on at any rate some of the issues that we have been discussing the arguments are nicely balanced.
The broad balance that has to be struck in this field is between freedom of speech, which of course includes freedom of the press and of the media and, on the other hand, the right of the citizen to a fair trial. Perhaps the journalist is inclined to attach more importance to the first proposition, and the lawyer rather more importance to the second proposition, than the other side is prepared to accept. But what I think has clearly emerged from our debate is that it is generally conceded that there is need for a law of contempt, and I believe it is further conceded that it is desirable that it should have a statutory framework.
When we discussed the matter in December, I think it was the late Lord Morris of Borth-y-Gest who alone repudiated the need for any statutory change at all, and took the robust view that the common law and the wisdom of the judges could deal with the matter. But that, I think, was a minority view. Certainly, I agree that there should be a statutory framework, and I can only regret that during my term as Lord Chancellor I was not able to introduce legislation to achieve it. Whatever legislation is introduced, I doubt whether it will achieve complete certainty in a field where the arguments are so balanced. On the form the legislation should take, I think there is common ground that what is needed is trimming and, where appropriate, restricting the scope of the common law, rather than attempting to codify the law of contempt altogether in a statute.
The first issue that has been stressed is what test should be applied to strict liability for contempt. I certainly agree with the proposition which was advocated by the Phillimore Committee that the emphasis should be shifted so that publications would be caught only when the potential prejudice or impediment to the administration of justice is serious. I think that that change will be helpful to our friends in Fleet Street. I supported the proposition in the debate in December
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1978, and it will surprise me very much if tonight the noble and learned Lord the Lord Chancellor does not support it also. I think we can at any rate start with that ground. It should go some way towards reducing the feeling and actuality of restraint which my noble friends, who have had experience of the press, have emphasised. The effect of that alone would enlarge the area of press freedom and make the boundaries of that freedom less uncertain.
The main discussion in our consideration of the matter this evening has been the starting point for strict liability for publications which may cause serious prejudice to civil or criminal proceedings. I concede that the present position is not wholly clear. For a long time it has been assumed, on the basis of judicial decisions, that there may be strict liability where proceedings are imminent. When we considered the matter in December 1978 there was almost unanimous support for a fixed starting point, and I agree. There is, however, a division of opinion as to whether it should be the Phillimore recommendation; namely, that the starting point should be when the accused is charged, or whether we should follow the moment selected by the High Court of Justiciary in Scotland in the case of Hall v. Associated Newspapers Limited,. namely, the time when the accused is arrested or a warrant is issued. That case, incidentally, enlarged quite considerably the scope of freedom, if that is the right word, of the Scottish journalist in relation to what had existed before.
But whichever of these formulae is chosen it would be an improvement on the imminence test. If the date chosen were the date when the accused is charged, as the Phillimore Report has recommended, and not the date of the issue of a warrant for his arrest, it would follow—and my noble friend Lord Ardwick has conceded this—that it would allow unrestricted and possibly seriously damaging comment during a police search for the wanted man which might culminate at any moment in his arrest and charge, and that there would be a risk of damage to the accused by the kind of prejudice that we are considering.
On the other hand, as again my noble friend has pointed out and as, indeed, the report pointed out, a warrant for arrest—this is one of the difficulties of the propo-

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sition—is usually issued in private; and even an actual arrest may not, for good reasons, be immediately announced by the police. It was put to me when I was Attorney General that in these circumstances the press might not know whether they were at risk, but I would venture to make the point that if a newspaper were made the subject of contempt proceedings, in those circumstances the defence of innocent publication or distribution would he, and certainly ought to be, available to the publisher if he could show at the time of publication that, having taken reasonable care, he did not know and had no reason to suspect that proceedings were active. I wonder whether my noble friends who have expressed concern about this matter have weighed in their minds the value of that protection to them, even if there were a disposition to move from the Phillimore test to the test of the Scottish courts.
The question of the starting point in civil proceeings has been raised, and my noble friend Lord McGregor of Durris has asked a question which it may well be the noble and learned Lord the Lord Chancellor can answer; namely, what the time factor will be between the period of setting down for trial and the trial proper. I am afraid that it would be very difficult for any statistic to provide any firm answer to that question. Circumstances will vary from case to case.
There is constant pressure to reduce the time. A good deal of success has been achieved but I am afraid that it will not be possible to give a precise answer. However, the Phillimore Report recommended—and I agree with the recommendation—that in civil proceedings the starting point should be the time when the case has been set down for trial, or the equivalent stage in other civil proceedings. At present strict liability sterns from the commencement of proceedings, so this change which is proposed by Phillimore, and with which again I agree, would be helpful.
On appeals from, or a review of, the decision of the court in a criminal or other proceeding, again the starting point should be, in the case of an appeal, the point in time of the notice of appeal or of an application for leave to appeal and, in the case of review proceedings, the point in time when the relevant originating process
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is issued. I think that a statutory embodiment of these propositions would be helpful and would increase certainty so far as the press is concerned.
It is interesting that the Bar Council put forward the proposition that there should be no strict liability for unintentional prejudice in regard to civil proceedings unless the case was tried by judge and jury, but I agree with the view of the Phillimore Committee that, even in non-jury cases, witnesses need to he protected. The public, and indeed the parties, would not be readily totally convinced that the barrage of prejudice raised against a defendant or, indeed, a plaintiff in a case might have no effect upon the judge.
There were other matters raised in the debate, points of detail, but I have ventured to concentrate on the two main points of difference and discussion. With regard to the impact of the decision of the Court of Human Rights, clearly the Government must take cognisance of that decision. We have accepted the right of petition to the European Court of Human Rights. Although, frankly, there is a good deal of legal opinion differing with the conclusion that the Commission came to, including the majority of the Lords of Appeal themselves, I agree that the outcome of that case should be accepted and that a publication made as part of a discussion in good faith of public affairs or other matters of general public interest should not be treated as a contempt of court under the strict liability rule if the risk of impediment or prejudice to particular legal proceedings is unintentional and only incidental to the proceedings. If this were the approach which was followed in the legislation, I think it would help to reduce the restraints to which my noble friends have referred.
Whether in the light of what I have said I can be classified as—and that seems to be the thing that is sought—a Phillimore man or not, I do not know. In so far as I have departed from it and have affronted my noble and learned friend Lord Gardiner and thereby appeared almost heretical, I hope he will forgive me, and will take a more generous view of the matter. This is an important issue and I think that certainly we on this side of the House will support to the Government for statutory embodiment on the lines I have ventured

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to express, and it will surprise me if on matters of substance what we are about to hear may not differ fundamentally from what I have ventured to say.
8.11 p.m.
The LORD CHANCELLOR: My Lords, my second innings today is one which is of a more technical character than my first. I was in fact hoping by now to have been discussing the Second Reading of a Bill, but as I am not in that position I am grateful to the noble Lord, Lord Ardwick, for giving me an opportunity of answering his Unstarred Question, and to other noble Lords who have played their part in this short debate for giving me an opportunity to discuss the question slightly more at large in certain detail.
I have one qualification which no other noble Lord who has taken part in the debate has had, so far as I know. There have been distinguished editors, and ex-editors; there have been distinguished lawyers and one distinguished sociologist. But I am the only person who has actually been charged with contempt, and so I think I have a right to speak. I was defended by the noble and learned Lord, Lord Rawlinson of Ewell. I was acquitted triumphantly by the noble and learned Master of the Rolls, and I had to pay a very considerable sum to my solicitors by way of costs.
So I come now to the subject of the Question. My Lords, I set up the Committee under the late Lord Justice Phillimore in June 1971. I did so because I thought that the law of contempt was overdue for reform and was likely to be reformed only as a result of a Blue Book of some kind. The Phillimore Committee reported to the noble and learned Lord, Lord Elwyn-Jones, whom I should like to thank for his helpful remarks, in December 1974.
Six years have passed since then, and the law is still unamended. In the meantime, events have come and gone. As has been mentioned, the late Government issued a discussion paper in March 1978. The Sunday Times case has been decided by the Strasbourg Court. The Law Reform Commission last autumn published their report which superseded, in my view, Chapters 6 and 7 of the Phillimore Report in two matters at least, and in Scotland the picture has further changed as
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a result of the Hall case, which, as the noble and learned Lord Lord Elwyn-Jones, pointed out, at any rate removed one of the supposed or real mines in the Scottish minefield. In England the Divisional Court was asked to decide and in the event failed to decide—whether the secrets of the jury room were protected. One noble Lord has asked me about that.
If I were of the opinion in June 1971 that the law of contempt needed reform, your Lordships will not he surprised to hear that I am even more of that opinion now. Unfortunately, the best laid plans o' mice an' men gang aft agley, whatever "agley" means. Having obtained, I thought with some sense of triumph, the consent of my colleagues to the inclusion in the Queen's Speech of the Contempt Reform Bill, to my disappointment I have had—and I am now answering the noble Lord, Lord Wigoder—to exchange that hope for a promise, I hope a firm promise, that it will be taken early next Session and will be available for introduction into your Lordships' House. But here I really must warn noble Lords, and in particular the noble Lord, Lord McGregor of Durris, and perhaps to some extent the noble Lord, Lord Jacobson, that the perfect is often the enemy of the good. I must remind the House once more of my predecessor Lord Campbell's dictum that law reform is either by consent or not at all. This applies no less in the 20th than in the 19th century. Too many attempts to improve the law to the point of perfection deters one Government after another from attempting it. What I can do with your Lordships' co-operation is to make the law better than it was, and that is my humble purpose.
Of course, the basis of the Bill must be Phillimore. It could, in fact, be nothing else. In addition—and here I am replying to the noble Lord, Lord Lloyd of Hampstead, and to the noble and learned Lord, Lord Elwyn-Jones—I shall accept the decision of the majority of the Strasbourg Court in the Sunday Times case. I did not myself agree with that majority, but as a matter of principle, having adhered to the Euro Convention, it is obviously wise, other things being equal, to accept the interpretation of the convention as offered by a majority of the Strasbourg Court, even though it was the comparatively narrow majority of 11 to nine. That at any rate is my conclusion.

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I shall also follow the Law Commission rather than Phillimore on the abolition of the offence of scandalising the court, but I do not anticipate that that will be contained in the Bill on contempt. If I err in that respect, I err on the side of liberality or liberalism. If wrong, I can at least plead in mitigation that no one has been punished for this offence—although I was accused of it—at least in England and Wales for about 50 years.
As the House will be aware, as the law stands the law of criminal contempt is indeed one of strict liability. Although mitigated by the defence of innocent publication, available as the noble and learned Lord, Lord Gardiner, reminded us since 1960, it still includes an clement of strict liability. The editor or the author can fall foul of the criminal law without the guilty knowledge which ordinarily forms an essential part of a criminal offence. Phillimore proposed that there should be a clearly defined statutory test. I wholly accept that recommendation.
The Bill will therefore begin by adopting the test advocated in. paragraph 113 of the Phillimore Report. That is the answer to the first part of Lord Ardwick's Question. I am fortified in this decision by the advice I have received, and which I accept, that this formula will also satisfy the requirements of the majority of the Strasbourg Court in the Sunday Times affair.
This, however, will be reinsured by what I have to tell the noble Lord in reply to the second arm of his Question, and this relates to time limits. The Phillimore Report pays particular attention to this. In fact, in Northern Ireland only—and there only in one case—has a publisher actually been penalised for a publication relating to proceedings which have not yet started. So, although one can state the case about uncertainty, I think one can also exaggerate its practical importance. To that extent the matter is academic and, as I have said, the Hall decision in the Court of Session refused to follow the Northern Ireland precedent in that respect in the Scottish jurisdiction. Therefore the first part of my answer to the noble Lord, Lord Ardwick, on the second limb of his Question is that strict liability should operate only within fixed time
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limits. That is in accordance with Phillimore.
The question then arises: between what limits? Phillimore recommends when a person is charged or a summons is served, and, in the slightly different procedure in the Scottish jurisdiction, at broadly similar moments. Since then there has been controversy in the press. Mr. Robin Day wrote a letter to The Times. The relevant paragraph which sets out the issues in Phillimore is paragraph 123, and here I think the question is very fairly and precisely stated. The report says:
"The choice lies between an earlier moment such as the issue of a warrant for the arrest or possibly the actual arrest of the wanted man and a later moment such as when the accused is charged or first appears in Court. The disadvantage of a later date is that it would allow comparatively unrestricted comment during a police search for the wanted man which might culminate at any moment in an arrest and charge".
That was the point made by the noble Lord, Lord Wigoder. The report continues:
"On the other hand, a warrant for arrest"—
which is the point made by the noble Lord, Lord Jacobson—
"is usually issued in private and even an actual arrest may not, for good reasons, be immediately announced by the police. In these circumstances the Press might well not know whether they were at risk. Moreover if the wanted man was never found "—
and I suppose that in that connection your Lordships can think of the Lucan case—
"publicity would be restricted at least in theory as long as the warrant for his arrest still existed".
These powerful arguments on either side have obviously exercised my mind considerably. My provisional conclusion is that the right moment in the criminal law at which to commence the point of liability is arrest, issue of a warrant, or charge, whichever is the earlier.
My answer to the arguments made by the noble Lord, Lord Jacobson, and I think by at least one other of the noble Lords who have spoken, is that which was put forward by the noble and learned Lord, Lord Elwyn-Jones, and by the noble Lord, Lord Wigoder. The real protection of an editor in such circumstances lies partly in the test itself—the test which was recommended by Phillimore and which I have accepted—and partly in the defence of innocent publication, which means that

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if he did not know, and could not reasonably be expected to know, he gets off completely. My view, for what it is worth, is that that and the certainty of the moment of time give the press enough protection to enable it to carry on its business in reasonable confidence.
We shall also include (and I think this is material to the present discussion) the defence to which the noble and learned Lord, Lord Elwyn-Jones, referred—the defence of the discussion of public affairs in good faith, under which even serious prejudice will not be treated as a contempt if the risk of serious prejudice is merely incidental to a discussion. I need hardly add that this corresponds to paragraph 142 of Phillimore. As the judgment of the Strasbourg Court makes plain, the debate is about the need to protect the administration of justice and the need to uphold the freedom of the press.
The Strasbourg Court concluded—and here I think unanimously, and in any event I agree with it—that the protection of the judiciary comes first, but only to the extent "necessary in a democratic society". They explained that the word "necessary" is in their view carrying a meaning which is intermediate between "desirable" and "indispensable". I do not know that I can improve upon that. I myself believe that the compromise I have outlined fulfils both criteria adequately. It is not absolutely identical with Phillimore, but I believe that it fairly reflects the thinking of the committee and the decision at Strasbourg on which it is based.
The problems of the time limits in appeal proceedings and in civil proceedings areas I think more than one speaker has stressed—far less acute and will be precisely defined in the Bill. The noble Lord asked in his Question specifically about civil proceedings. The answer is that the terminus a quo is the moment of setting down where setting down is a step in the procedure before the Court. Where the setting down is not a step in the procedure the time limit will be the point of time at which the date is fixed for hearing. That again is in conformity with Phillimore recommendations.
I think perhaps I have now answered the terms of the noble Lord's Question and at this hour I think it would be imprudent to stray far beyond them, but
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I have about two other things that I want to say. In the broad, the answer to both limbs of the noble Lord's question is, Yes. But there will be other matters dealt with in the Bill which are not covered by those terms and I should make it clear that this is so.
In my view, for instance—and I was asked this by the noble Lord, Lord Wigoder—the Divisional Court's judgment in the New Statesman case leaves too much undecided. In the Bill, when it comes, we shall endeavour to define the extent to which the duty of confidentiality of the secrets of the jury room ceases to be a mere matter of moral obligation and becomes a matter amenable to legal decision. This is a wide question which I shall not attempt to handle now. But our present intention is to include a clause on the subject.
It is not intended to include a clause about contingency payments. That does not mean to say that the law does not exist, but the conclusion we reached, after discussing the matter in the light of the Press Council's dealing with the particular question arising out of the Thorpe case, was that we had better leave the matter as it was. The Press Council dealt with the matter severely and very properly and we all agreed that although the question of contempt can undoubtedly arise it would be imprudent to try by legislation to deal specifically with the matter in the Bill.
It is not intended to include the extent to which pressure or influence can legitimately be brought to bear on the parties to litigation. That was canvassed by the House of Lords in the Sunday Times case and the Appellate Committee came to the conclusion that—and I quote—a "fair and temperate campaign was permissible. It is also, I think, fairly obvious that intimidation or unlawful threats to property, person or reputation are not acceptable to the law and at present we propose to leave the matter there.
However, we intend to clarify the position regarding the power of courts to prohibit the publication of names and other details in cases, for instance, of blackmail and other matters, such as those canvassed in the Leveller case. These are questions which ought not, in our view, to be left unclear and without

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clarification by Parliament, but for details I would ask noble Lords to wait for the introduction of the Bill.
I conclude by thanking the noble Lord, Lord Ardwick, again for asking his Question and the House for giving me the opportunity of replying to it. I hope we shall resume our discussion with any luck—and one needs that in this world—on the Second Reading of the Bill when it is introduced (as I hope) early next Session into this House. That is my answer to the noble Lord's Question.

DERBYSHIRE BILL [H.L.]
Reported from the Select Committee on opposed provisions with an amendment.
GREATER MANCHESTER BILL [H.L.]
Reported from the Select Committee on unopposed provisions with amendments, a Special Report made and to be printed.
STATUTE LAW REVISION (NORTHERN IRELAND) BILL [H.L.]
Reported from the Joint Committee without amendment, and recommitted to a Committee of the Whole House.