Lords Sitting of 21 October 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 Southwell.

MR. JOHN SKEEN: CROWN OFFICE STATEMENT
Lord McCLUSKEY: 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 why the Crown Office, Edinburgh, issued on 10th September 1980 a statement concerning the resignation of Mr. John Skeen, procurator fiscal of Glasgow, narrating unsubstantiated allegations of criminal conduct by Mr. Skeen.
The LORD ADVOCATE (Lord Mackay of Clashfern): My Lords, the Crown Office would not normally give publicity to allegations which were not to be the subject of prosecution. However, the case referred to by the noble and learned Lord was highly exceptional. Reports had appeared both in the Glasgow press and in the national Scottish press that allegations of sexual misconduct against a procurator-fiscal had been against a procurator fiscal had been reported to the Crown Office. No name of the fiscal involved was given. A few days later these reports were followed up by a report that some 20 further allegations were being investigated and that a team of police officers had been appointed for this task.
As the noble and learned Lord is aware, there are a number of procurators fiscal in the service and many members of the public attend at their offices daily for precognition and other purposes. In these circumstances I considered it necessary to give the public a statement of the position. I felt it impossible to do this adequately without naming Mr. Skeen and, in fairness to Mr. Skeen, I thought it necessary to indicate with some precision the nature of the allegations in question.
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I considered the making of this statement necessary in the interest of the other procurators fiscal, in the interest of Mr. Skeen himself, but above all in the interest of the public, particularly those who have dealing with the procurators fiscal.
Lord McCLUSKEY: My Lords, in thanking the noble and learned Lord for that reply, which I fully accept, may I ask him to deal with three points which arise out of the circumstances. First, is he aware that the issuing of this statement gave rise to some disquiet in Scotland because in the statement the Lord Advocate appeared to be saying that he had received allegations and evidence of the commission by a distinguished public servant of criminal offences involving several women, and that although Mr. Skeen strongly denied the allegations the Lord Advocate was not going to put those allegations to the test, principally because the women complainers did not want publicity?
Second, does he consider that in referring to the women's expressed wish to avoid the publicity that could ensue if they were called as witnesses, the statement departed from the Crown Office's usual practice of not giving any reasons for a decision not to prosecute and failed to reveal that there might be other reasons for not prosecuting, including the difficulties in proving the allegations?
Finally, can be confirm that at a time when the complaints were supposed to be under the most confidential investigation by senior police officers, full details of the investigation by these officers and of the report to the Lord Advocate were published in two Scottish newspapers in circumstances which pointed to a deliberate leak to the press by police officers in contravention of Section 44(2) of the Police (Scotland) Act 1967? And is the Lord Advocate or the chief constable of Strathclyde conducting an inquiry into such an offence?
Lord MACKAY of CLASHFERN: My Lords, the general practice of the Crown Office is not to give reasons for a decision not to prosecute. Obviously there are good reasons for that policy. This statement did not contain an expres-

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sion of the reasons which led me to take the decision which I did. However, as I have said, I thought that the circumstances were extremely exceptional and required a reasonably full statement of the position so as to inform the general public, and I thought it right in that statement to refer to the basic facts. One of the basic facts was that the women complainers who were referred to in relation to the possible criminal allegations did not want publicity, for personal reasons. I thought it right that that fact should be stated, but did not say that that was the reason no prosecution was being taken. I did not think it necessary, either, to deal with the question of what prospects a prosecution would have. That is certainly not the usual practice, and I thought it not right to do so.
Turning to the suggestions about the police, so far as I know the first paper to publish the allegations to which I first referred was the Daily Record, and the editor declines to name his source. There appears to have been a leak, but I have no evidence to suggest that a criminal offence was committed by anyone in that connection and in particular by any member of the police. I am confident that if any evidence comes to light that a criminal offence was committed, it will be reported by the police to the Crown Office.
Lord ROSS of MARNOCK: My Lords, this action which was taken by the Crown Office was very exceptional. The noble and learned Lord mentioned only a leak being possible from police sources. Is he satisfied that there was no leak from the Crown Office?
Lord MACKAY of CLASHFERN: My Lords, I have said that the only person who referred to a leak from the police was the noble and learned Lord, Lord McCluskey. On the information which I have I am not in a position to say from where the leak took place. All I can do is to repeat that if evidence comes to light to indicate where it took place, I would expect the matter to be reported.
Lord GALPERN: My Lords, may I ask the noble and learned Lord the Lord Advocate, in view of some considerable
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misunderstanding of the duties of the Lord Advocate in Scotland, whether he would confirm that it is in the ultimate power of the Lord Advocate to decide whether to institute criminal proceedings in any case, and whether the occupants of that high office have always discharged their duties in the best interests of the public?
Lord MACKAY of CLASHFERN: My Lords, certainly I confirm the first part of the noble Lord's question, and I certainly confirm the second part up to the present incumbent of that office. I am sure that your Lordships will accept from me that in this extremely difficult case—unprecedented so far as I know—I certainly did my level best to be fair to all the parties involved. Mr. Skeen, as the noble and learned Lord, Lord McCluskey, said, was a distinguished public servant with a long record of devoted service—I think 28 years—to the fiscal service. He had to do a lot of very difficult things and he worked hard. On the other hand, there were three women who were helping the Crown as witnesses in a very difficult case. I did my level best to hold the balance of fairness between them and all I can say is that I hope I have succeeded.
Lord WILSON of LANGSIDE: My Lords, I wonder whether the noble and learned Lord could clarify two further points. In the first place, assuming that Mr. Skeen feels that his character has been wrongfully defamed, what remedies at law has he against the Crown Office, against the Crown Agent, or indeed against the noble and learned Lord himself? In the second place, can the noble and learned Lord tell us whether anything was known within the Crown Office bearing upon the character of the three women concerned that might have made one think twice about accepting the truth of the allegations which they were making?
Lord MACKAY of CLASHFERN: My Lords, so far as the first point is concerned, I do not know that it would be appropriate for me to give advice as to what remedies Mr. Skeen might have in the event of his being defamed. I would think that he would have the ordinary remedies which any person being defamed has against the parties

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that the noble and learned Lord, Lord Wilson of Langside, mentioned.
So far as the women are concerned, in the statement I have said that they had personal reasons for not wishing the publicity that would be involved in a criminal trial. I do not think it would be appropriate for me to go into the details of that. I consider that women who came to the procurator fiscal's office in discharge of their duty, and indeed under compulsory powers, ought not to be subject to the disclosure of their personal circumstances except in the most exceptional circumstances and in the course of some form of proceedings; so I certainly would not intend to say more upon that.
Lord WIGODER: My Lords, can the noble and learned Lord say whether inquiries are being actively pursued into the source of the leak, which has clearly caused grave embarrassment to a large number of people?
Lord MACKAY of CLASHFERN: My Lords, the noble Lord will appreciate the difficulty of an investigation of this sort, and obviously it would not assist the investigation to say what is being done. I can only repeat that this is a matter which obviously has caused not only considerable embarrassment but also concern to the police, to myself and to the Crown Office. Therefore, naturally, if any clue comes along as to the source from which this emanated, we shall be most anxious to follow it up.
Lord McCLUSKEY: My Lords, on that last point, if I may ask one final question, the situation in which the noble and learned Lord the Lord Advocate found himself was created by the publication in the press of information which the press should not have had. In my estimation the circumstances point absolutely plainly to a deliberate leak by police officers in Glasgow. Is the chief constable of Strathclyde investigating that matter and, if not, why not?—because it appears to me to be a plain breach of duty by the police; a violation of duty under the section of the Act to which I have referred.
Lord MACKAY of CLASHFERN: My Lords, I am sorry that on the basis
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of the evidence which I have at the moment I cannot accept that that is so, but I know that the chief constable is very anxious about the matter, and of course he has the primary responsibility for the detection of crime. As I have said, this is a very difficult area and I have every confidence that he will do what is right in the circumstances.
Lord PARGITER: My Lords, in cases of this kind, where persons make complaints which are widely publicised and which are apparently not withdrawn, but they are unwilling to give evidence and the Crown is considering a prosecution, does the prosecution in Scotland not proceed with the case?
Lord MACKAY of CLASHFERN: My Lords, the question of whether or not a prosecution should proceed in Scotland is a matter ultimately for the Lord Advocate to decide, if it be a public prosecution. In the light of all the circumstances in this case, I decided that there should be no prosecution, and I intimated that in the statement.

PULP MILLS: CLOSURE
2.49 p.m.
Lord UNDERHILL: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what are the economic justifications for allowing the closure of the pulp mills at Fort William and Ellesmere Port, with the consequential necessity for the Forestry Commission to seek outlets for timber from the forests of Wales and the Scottish Highlands, possibly to Scandinavia, and then to import the finished paper.
The MINISTER of STATE, MINISTRY of AGRICULTURE, FISHERIES and FOOD (Earl Ferrers): My Lords, the closures result from the decisions of the companies operating those mills, decisions which are based on their commercial judgment.
Lord UNDERHILL: My Lords, will the noble Earl appreciate that, while I

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thank him for his Answer, he has not really dealt with the point of the Question? Has a survey or an analysis been made of the net costs of closing these two pulp mills? If not, is one being undertaken, and should it not take into consideration not only the loss of 2,500 jobs at Ellesmere Port and Fort William but also the net cost of unemployment benefits and other benefits, and the net cost of exporting small timber and having to import finished paper? While appreciating the activities of the Forestry Commission in endeavouring to obtain markets for their small timber, is there any long-term plan by the Government to ensure that there are home-based pulp mills in this country for the proper use of our timber?
Earl FERRERS: My Lords, I am sorry the noble Lord did not think that I answered his Question, but he will realise that his Question asked Her Majesty's Government what economic justifications there were for allowing the closures, and my Answer referred to the fact that the closures resulted from the judgment of the commercial enterprises concerned. Of course, we bitterly regret the fact that this has been necessary, and I accept entirely the point the noble Lord has made about the unemployment this has caused. In fact, the two pulp mills have been operating in a situation of making losses. The Government have been in consultation about both the mills, at Fort William and at Ellesmere Port, to see if there are ways in which they can help. Suggestions were made to both companies with regard to substantial financial help from the Government and in both cases it was their commercial judgment that, notwithstanding this offer, they would still have to close the plants.
With regard to the noble Lord's question about the future of forestry supplies, I can tell him that 80 per cent. of the small roundwood which used to go to Fort William has now been placed on contract abroad. We hope that the future for forestry will be a successful one. We believe that there are circumstances where pulp-making can be successful in the United Kingdom given the commercial desire and will to do it, and the Government would be happy to take part in any consultations required.
Lord ALPORT: My Lords, may I ask the noble Earl whether the Government
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would consider taking some action to prevent the continuous dumping of paper from Brazil, Scandinavia and the United States in this country, to the very great disadvantage of the paper-making industry and the forestry industry in the United Kingdom?
Earl FERRERS: My Lords, if my noble friend can give me any factual examples of where there has been dumping, then, of course, we will consider it.
Lord IRVING of DARTFORD: My Lords, as much of the outcome of this question depends on the Government's forestry policy, can the noble Earl say how long it will be before a statement can be made?
Earl FERRERS: My Lords, I thought the noble Lord said monetary policy; that is why there was a little confusion. There will be a Statement on the Government's forestry policy. It was hoped that this would have been made a little earlier than it will be; I can tell the noble Lord that it will be made some time in the future, but I cannot be precise about it.
Lord CLEDWYN of PENRHOS: My Lords, as the pulp mill at Ellesmere Port has been closed, can the noble Earl say where the output of the Welsh forests will now go?
Earl FERRERS: My Lords, I can tell the noble Lord that 80 per cent. of that which went to Fort William has now gone on contract abroad, and I have no doubt that the Forestry Commission will be in consultations about getting rid of the wood that used to go to Ellesmere Port.
Lord CLEDWYN of PENRHOS: My Lords, that is not a satisfactory answer. Can the noble Earl not be more specific? Is he not aware that unemployment in Wales is very high indeed and that this is causing considerable concern in the Principality? Forestry makes an economic contribution, and if the Welsh forests are affected because there is no output the consequences can be very serious. I would be very grateful if the noble Earl could give me a more particular reply.
Earl FERRERS: My Lords, I cannot tell the noble Lord exactly where the output of the Welsh forests will go. This

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is obviously a matter for the commercial judgment of those who sell the wood. It would be greatly to my surprise if the noble Lord found that the output of the Welsh forests stopped.
Lord CLEDWYN of PENRHOS: My Lords, the noble Earl really is fobbing me off. Will he be good enough, if he does not know, to find out where the output of the Welsh forests will go and let me know?
Earl FERRERS: Yes, my Lords, I will certainly look into that and let the noble Lord know.
Lord FERRIER: My Lords, is my noble friend aware that it is commonly understood that the difficulty is the high cost of electrical energy? Would he confirm that in fact the turning point of the decision was based on the cost of power in this country as compared with the cost of power in Scandinavia?
Earl FERRERS: My Lords, I would agree with my noble friend that the high cost of energy is one significant point. Of course, the Scandinavians have cheap hydro-electric power which is not available to the United Kingdom. There are two other factors. There is the high level of sterling, which makes imports competitive, and the third factor is the fact that newsprint is internationally traded in dollars, and of course the situation is also affected by the fact that the wood from which that is made in North America is about half the price of the wood which is available in this country. When wood comes in at that price, it is very difficult to make ends meet when you have a high pound.
Lord COLLISON: My Lords, will the noble Earl tell us whether proper consultation took place before the decision to close these mills was taken? Were there consultations with the trade unions concerned in that aspect of British industry, and were the trade unions in the home-grown timber trade properly consulted, the trade unions representing the forestry workers—that is, the National Union of Agricultural and Allied Workers and the Transport and General Workers' Union? And, if not, why not?
Earl FERRERS: My Lords, I cannot
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give the noble Lord the information he requires. I do not know the details of the consultations which went on between the employers and the employees. I can tell him that the Prime Minister herself was very concerned about these closures and the effect they would have, and she has been intimately involved and intimately concerned with the results.
Lord PAGET of NORTHAMPTON: My Lords, does not the noble Earl realise that every word he has said illustrates the impotence that a Government bowing to doctrinaire monetary policy find themselves in when faced with the most obvious evil, the sudden closure by private decision of the means of processing a public product? The Government have to explain to us that within their doctrine there is absolutely nothing they can do about it.
Earl FERRERS: My Lords, I do, with the greatest respect, disagree entirely with the noble Lord, Lord Paget. There is one fundamental flaw in what he says. He knows, as I have tried to explain, that for reasons of world recession and world competition these mills have been operating at a loss. Two things can be done. Either the commercial effects have to be taken into account and the mills closed—and that is a matter for the commercial judgment of the owners—or the Government can subsidise them and carry the losses which private industry is not prepared to carry. The noble Lord, Lord Paget, may think that that is the right thing to do. The Government have taken the view that they cannot continue to subsidise one industry after another.
Lord GEORGE-BROWN: My Lords, is not there a fatal flaw in the argument that the Minister himself is using? Is it not true that the Government have required the public suppliers of electrical energy in this country, quite unnecessarily, quite artificially, to raise the charges that they make to commercial enterprises far beyond anything that is necessary to run their own enterprise?
Earl FERRERS: My Lords, that is a matter of strict energy policy, which I would be quite happy to debate with the noble Lord, Lord George-Brown, if he so wished. But even if that had not been so, the Government are not at the receiving

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end of the cheap hydro-electric power which the other countries have, and in any event the hydro-electric generation would have been cheaper.
Lord UNDERHILL: My Lords, would not the noble Earl agree that there are times when commercial considerations are not the only factors to be taken into account, and that where there is the possibility of an important industry such as forestry not only having unemployment but not being able to use our timber, something needs to be done? When are Government plans for a permanent solution likely to be announced?
Earl FERRERS: My Lords, of course I absolutely take the point and I would not wish to appear not to recognise it. The Government have been so concerned about both Fort William and Ellesmere Port that they have been in consultation with the owners to see whether it is possible to construct new mills or modernise those plants. Had that been done, the Government would have been prepared to give substantial financial help in that process. We have done that, and we are quite prepared to look at any new proposals that industry can bring forward.
The LORD PRESIDENT of the COUNCIL (Lord Soames): My Lords, I apologise for intervening, but we have been going for 22 minutes on two Questions and I think we should move on.

UNION MANAGEMENT AGREEMENTS: GUIDANCE
3 p.m.
Viscount DE L'ISLE: 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 consider the inclusion in the Code of Practice on Closed Shops of guidance as to what action by employers and unions would be required to bring about the effective and certain dissolution of a union management agreement.
Lord LYELL: My Lords, the contents of the Code of Practice on the closed
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shop are currently under consideration in the light of comments received on the draft Code during the consultation period, and the noble and gallant Viscount's suggestion will be considered in this context.
Viscount DE L'ISLE: My Lords, I thank the noble Lord for his Answer and I am grateful for the offer of consideration. When considering the question and the problem, will he and his colleagues remember that union management agreements both impose duties and confer rights on both parties? Will he remember that it is of importance, particularly to workers, to know as precisely as possible when an agreement has terminated, so that they know the implications and how their rights and duties are affected?
Lord LYELL: My Lords, I can certainly give my noble and gallant friend the assurance that we will take into account his comments today, as, indeed, we have taken into account his earlier comments which he delivered in written form.
Lord SPENS: My Lords, can the Minister arrange that the Code of Practice should include information to members, a substantial body of whom—by "substantial body" I mean at least 20 per cent.—might want to have a closed shop terminated but are frustrated, perhaps by an employer who is weak and union representatives who want to keep the closed shop going?
Lord LYELL: My Lords, I am sure the noble Lord will be aware that in the Code of Practice there is a paragraph and a section referring to periodic reviews of the practices of union membership agreement in that particular firm or industry. The Government do have it in mind, and that is the very reason we have this paragraph about reviews.
Lord GISBOROUGH: My Lords, regarding that review, can the Minister say exactly who has to think that an agreement no longer serves its purpose before the closed shop is allowed to lapse?
Lord LYELL: My Lords, either party to the agreement.
Lord ORR-EWING: My Lords, will my noble friend consider examining in the Code of Practice while it is still in draft the point made by Mr. Aspinall in a letter in the business section of The Times today? Mr. Aspinall represents 500,000 people, managerial and professional staff. He draws attention to the need, with contracts of employment in the future, for union membership agreements to be attached so that everyone starting a job knows where they stand. Where there are unwritten agreements—de facto closed shop agreements—ought not some notice to be taken of this and possibly a poll taken, so that people have an opportunity of judging whether or not it has widespread support?
Lord LYELL: My Lords, I should like to thank my noble friend for those observations. The Government do take the view that clarity is of the essence in all contracts of employment. As my noble friend says, where possible any unwritten rules should be clarified. These practices should be brought out into the open and it should be made clear to prospective applicants for jobs.
Lord PEART: My Lords, will the noble Lord give an indication of the consultations that should or will take place with the trade unions concerned? After all, that is an important matter; they are the people concerned. Has he anything to say on this?
Lord LYELL: My Lords, which unions and in which industries? In general, the Trades Union Congress have been asked to submit their recommendations, views and observations to my right honourable friend the Secretary of State. In regard to the closure date for these consultations, my right honourable friend has not had any clear or specific views. There have been roundabout views which have appeared through the press. My right honourable friend should be very grateful to receive any further observations that the Trades Union Congress might wish to make.
Lord PEART: My Lords, he must know that inevitably this affects all unions. Apart from that, I believe the TUC should be consulted.
Lord LYELL: My Lords, I hoped I had made that point clear. Perhaps it was rather in the nature of my noble friend's contract of employment. But I am contracted to this Bench and I will make it quite clear.

FAO EMERGENCY MEETING IN ROME
3.6 p.m.
Lord HATCH of LUSBY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what policy they followed at the emergency meeting of the United Nations Food and Agriculture Organisation held in Rome on 19th September.
Lord TREFGARNE: My Lords, the meeting was held to discuss emergency food supply problems in certain African countries. Britain attended with the aim of supporting efforts to mobilise help within the existing machinery, and obtaining up-to-date assessments of need from the international agencies. Like the Community, through which most of our food aid is channelled, we are now considering what more we can do to help bilaterally to follow up the 50,000 tonnes of cereals we supplied to needy African countries in the harvest year which has recently ended.
Lord HATCH of LUSBY: My Lords, will the Minister confirm or deny that at this conference, which was called because 150 million Africans are facing starvation, nine countries, including not just developed countries but Algeria, promised immediately extra food aid, and that Britain did not? Will he confirm that the British Government spokesmen said that they would watch the position? What is this position they are going to watch? Is it the 150 million people starving? Is it not a disgrace that the British Government were the one that stood out, refusing to increase their food aid in face of this great disaster, and is this not the kind of policy which is giving us a reputation for meanness in the world, particularly in the Third World?
Lord TREFGARNE: My Lords, I think "meanness" is hardly the word. In the current financial year we will have shipped about 43,000 tonnes of food from the United Kingdom. We will have paid for 80,000 tonnes of the Community programme and we will have pledged some 50,000 further tonnes to the world food programme, much of which will go to Africa. As for what the noble Lord said earlier about the conference, it is true that some of the other donors were able to pledge a certain amount of additional assistance although it is not entirely clear which of that additional assistance came from existing programmes or was new supplies. We greatly welcome what they were able to do. We, on the other hand, as the noble Lord rightly said, are going to consider the matter very carefully to see whether there is anything further that we can do.
Lord ORAM: My Lords, have we not read recently that food has been destroyed in this country in implementation of the regulations under the Common Agricultural Policy? Is it beyond the wit of man, and beyond the wit of this Government, to devise some means of avoiding the situation whereby food is destroyed in one part of the world and thousands of people die in another?
Lord TREFGARNE: My Lords, the fact is that we in this country are net importers of grain, for example, and any grain that we agree to send overseas has to be replaced by further imports into this country.
Lord AVEBURY: My Lords, does the noble Lord not agree that in the last year, because of the military operations of the Ethiopian regime against the subject peoples of Eritrea, Western Somalia and Tigre, starvation in those areas has become widespread and that the United Nations' High Commissioner, as well as the authorities in the Sudan and Somalia, has made desperate appeals to the world for help? What contribution have Her Majesty's Government made towards this need, and what extra pledges were made at the meeting to which this Question refers to help those particular refugees and starving millions in the Horn of Africa?
Lord TREFGARNE: My Lords, in the current "harvest year" as it is called, we shall be supplying 5,000 tonnes of wheat, or its equivalent in flour, to Somalia.
Baroness LLEWELYN-DAVIES of HASTOE: My Lords, the noble Lord repudiated the word "meanness" which my noble friend uttered. But, surely, is he not aware that this Government, this country, has been criticised not merely by leaders in the Commonwealth, but by Herr Willy Brandt and by South American Governments? Is he also aware that all of our forebodings, when we found that overseas aid was to be put under the Foreign Office, have been confirmed, regularly? The fact that the proportion of cuts as regards aid is so much out of proportion with the other cuts in this country really is a disgrace, and is he aware that we are bearing criticism from all over the world for doing it?
Lord TREFGARNE: My Lords, the cuts in the aid programme are a result, if I may say so, of the totally illusory programme which our predecessors had established before we came to office. The vast programme which they had imagined they could fulfil was quite unrealistic.
Baroness LLEWELYN-DAVIES of HASTOE: My Lords, our reputation in the world has suffered enormously as a result, but it was not because we made the mistake.
Lord TREFGARNE: My Lords, that may well be so, but if the noble Baroness and her friends had remained in office, then that programme too, would not have been sustained.
Lord BROCKWAY: My Lords, is it not the case that the director-general of the FAO at the Rome meeting said that 550,000 tonnes of food were needed immediately to save the lives of 150 million people? Did not the British representative say that he would watch the situation? Are the Government just considering the situation when hundreds of people are dying every day from this want of food?
Lord TREFGARNE: My Lords, we are doing our "bit" in this matter.

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We are, of course, not the only nation in the world which ought, and does indeed, contribute to what I accept is an appalling problem. I have already recited to your Lordships the very substantial quantities of food aid that we are providing, and it is worth adding that it will cost us some £40 million this year.
Lord PAGET of NORTHAMPTON: My Lords, have we any explanation as to why Africa cannot feed herself? In colonial days she produced and exported quite a considerable surplus of food. She has since received aid on a pretty generous scale and has had the advantage of a "green" revolution which has doubled agricultural production almost everywhere else. But at the end of it she is producing, in actual terms, a good deal less than she was at the time when colonialism ended. Surely there should be some examination of what Africa can do for herself?
Lord TREFGARNE: My Lords, it is true that production in Africa generally is less than it should be and that is why our aid programme—a programme of technical support and the like—is very much aimed at improving agricultural production in Africa.
Lord HATCH of LUSBY: My Lords, when the noble Lord the Minister is giving a number of figures, perhaps he would compare them with those of other countries. For instance, will he answer my original Question as to why Britain stood and watched the position when a country like Algeria made an immediate pledge of additional aid along with nine other countries? Is it not the case that there has been, and there is, growing in this country what is known as a "barley mountain"? Is that not of any use to the starving 150 million people who will be facing death during the next few months?
Lord TREFGARNE: My Lords, it is not clear that Algeria and the other countries actually promised new food aid. Some of what was promised was, indeed, reallocation of existing pledges. But we have done our bit as well.

CIVIL AVIATION APPEALS
Lord DENHAM: My Lords, with the leave of the House, at a convenient
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moment after 4.15 p.m. my noble friend Lord Trefgarne will make a Statement on Civil Aviation Appeals.

LOCAL GOVERNMENT, PLANNING AND LAND (No. 2) BILL
The PARLIAMENTARY UNDERSECRETARY of STATE, DEPARTMENT of the ENVIRONMENT (Lord Bellwin): My Lords, I beg to move the Motion which stands in my name on the Order Paper.
Moved, That the amendments for the Report stage be marshalled and considered in the following order, viz.:—

Clause 1

Schedules 1 to 7

Clauses 2 to 49

Schedule 8

Clauses 50 and 51

Schedule 9

Clauses 52 to 59

Schedule 10

Clauses 60 to 67

Schedule 11

Clauses 68 to 77

Schedule 12

Clauses 78 to 85

Schedule 13

Clause 86

Schedule 14

Clauses 87 to 89

Schedule 15

Clauses 90 to 97

Schedule 16

Clause 98

Schedule 17

Clause 99

Schedule 18

Clause 100

Schedule 19

Clauses 101 and 102

Schedule 20

Clauses 103 to 106

Schedule 21

Clauses 107 to 114

Schedule 22

Clauses 115 to 117

Schedule 23

Clauses 118 to 129

Schedule 24

Clauses 130 and 131

Schedule 25

Clauses 132 to 139

Schedule 26

Clauses 140 to 143

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Schedules 27 and 28

Clauses 144 to 157

Schedule 29

Clauses 158 to 172

Schedule 30

Clauses 173 to 183

Schedule 31

Clause 184

Schedule 32

Clauses 185 to 187—(Lord Bellwin).

On Question, Motion agreed to.

CRIMINAL JUSTICE (SCOTLAND) BILL [H.L.]
3.15 p.m.
The MINISTER of STATE, SCOTTISH OFFICE (The Earl of Mansfield): My Lords, I beg to move that the Commons Amendments be now considered.
Moved, That the Commons Amendments be now considered.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
[References are to Bill [179] as first printed for the Commons.]
Amendments Nos.
1 Clause 1, page 2, line 20, leave out from 'who' to end of line 27 and insert 'having been required—

(i) under that subsection to give his name and address; or

(ii) under subsection (2) above to remain with a constable,

fails, without reasonable excuse, to do so',
2 Clause 1, page 2, line 30, leave out from 'who' to 'fails' in line 32 and insert 'having been required under that subsection to give his name and address'.
3 Clause 1, page 2, line 32, leave out 'or gives a false name and address'.
The Earl of MANSFIELD: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 1 to 3 en bloc. These are drafting amendments which delete unnecessary words. It is unnecessary to have an offence of giving a false name and address when it is an offence under the clause for a suspect or witness to fail to give "his" name and address when required to do so. I beg to move.
Moved, That this House doth agree with the Commons in the said Amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
4 Clause 2, page 3, line 1, leave out 'take that person' and insert 'detain that person and take him as quickly as is reasonably practicable'.
5 Clause 2, page 3, line 2, leave out 'that person may be detained' and insert 'the detention may continue'.
6 Clause 2, page 3, line 8, at end insert ';and when a person has been detained under subsection (1) above for a period of six hours, he shall be informed immediately upon expiry of this period that his detention has been terminated'.
7 Clause 2, page 3, line 13, leave out 'exercises the power conferred by' and insert 'detains a person under'.
8 Clause 2, page 3, line 14, leave out 'concerned'.
9 Clause 2, page 3, line 15, leave out 'and' and insert 'of'.
10 Clause 2, page 3, line 16, leave out from 'and' to 'of' in line 18.
11 Clause 2, page 3, line 20, leave out 'place of detention' and insert 'place where detention begins and the police station or other premises to which the person is taken'.
12 Clause 2, page 3, line 22, after 'time' insert 'when detention under subsection (1) above begins and the time'.
The Earl of MANSFIELD: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 4 to 12 en bloc. The purpose of this group of amendments, apart from Amendment No. 6, is to make quite clear that detention must be taken as beginning when the police first exercise the power contained in Clause 2(1), rather than when the detained person reaches the police station. The amendments ensure that no one is deprived of his liberty under Clause 2 for a total period of more than six hours, and represent a safeguard for the detained person not to be found in the Thomson report (which recommended that detention should only begin when a person arrived at a police station). Nor was such a safeguard to be found in the previous Government's Bill.
Amendment No. 4 is of particular importance in that it requires transfer to a police station or other premises to be made
"as quickly as is reasonably practicable".
The Government consider detention should normally take place in a relatively formal setting and this amendment prevents undue delay in taking the suspect to a

1775
police station. Amendments Nos. 11 and 12 are also important; they provide for a record to be made of the time when, and the place where, detention begins; of the police station or other premises to which the suspect is taken, and his time of arrival.
Amendment No. 6, which was proposed in another place by the honourable Member for Roxburgh, Selkirk and Peebles, deals with what happens at the conclusion of the six hours period of detention. It ensures that the detained person is told by the police that the period of detention has terminated, and he therefore will know that he is free to go, unless of course the police decide at that point that he should be arrested. I beg to move.
Moved, That this House doth agree with the Commons in the said Amendments.—(The Earl of Mansfield.)
Lord McCLUSKEY: My Lords, it is only right that I should acknowledge that these amendments do, in fact, improve the Bill and certainly improve the rights of persons detained under Clause 2. I hope that the House will accept the Commons amendments.
Lord DRUMALBYN: My Lords, may I venture to draw attention to what seems to me to be a minor mistake in Amendment No. 9. I do not think that it should be there at all. Perhaps my noble friend will kindly look at the amendment, because otherwise there will be two 'of's together. The point is that it says:
"At the time when a constable exercises the power conferred by subsection (1) above, he shall inform the person concerned of his suspicion and"—
and that is to be changed to "of"—
"of the reason for the detention".
The words,
"his suspicion of the reason for the detention".
do not make sense.
The Earl of MANSFIELD: My Lords, perhaps I can look at that.
On Question, Motion agreed to.

COMMONS AMENDMENTS
13 Clause 2, page 3, line 25, after 'below' insert 'and of subsection (1) (b) of section 3 of this Act'.
14 Clause 2, page 3, line 26, after 'him' insert—
'(dd) where the person requests such intimation to be sent as is specified in section 3(1)(b) of this Act, the time when such request is—

(i) made;

(ii) complied with;'.

The Earl of MANSFIELD: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 13 and 14. Perhaps I may also speak to Amendments Nos. 16, 17, 18 and 19. This group of amendments provides additional safeguards for detained and arrested persons. Amendments Nos. 13 and 14, 17 and 19 provide for a detained person to be told of his right to have intimation sent to his solicitor and another person; and require that a record should be kept of when he is informed, when he asks for intimation to be sent, and when his request is complied with. The amendments which achieve this purpose were made in another place in fulfilment of an undertaking which I gave on Report in this House to the noble Lord, Lord Monson.
Amendment No. 16 specifies that a constable's duty to inform a suspect that he need answer no questions except to give his name and address must be carried out both on detaining him and on arrival at the police station or other premises.
Amendments Nos. 18 and 19 impose a new statutory duty on the police, in cases where they detain or arrest a child who appears to be under 16 years of age, to inform the parent or guardian immediately and to allow them access to the child. However, there will be no absolute right of access where there is reasonable cause to suspect that the parent or guardian is involved in the alleged offence. For example, occasionally children are involved by their parents in shoplifting expeditions, and it seems reasonable to allow the police the right to deny the parents access to the child during investigations into cases of that kind. However, in the vast majority of cases it is the existing practice of the police to allow access to the parents, including during any questioning. These amendments give a first statutory basis to existing good practice.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
Lord McCLUSKEY: My Lords, the noble Earl spoke to Amendment No. 19 at the same time, and that is the only one on which I have a point. It is this. I welcome Amendment No. 19 as being an improvement to the Bill. It is the amendment giving the child's parent, or the apparent child's parent, the right of access. But what is not clear from the Bill, as I read it, is who it is who exercises the discretion and makes the judgment which requires to be made in the case where there is reasonable cause to suspect that the parent has been or may have been involved in the alleged offence. Is that judgment one which falls to be made by the constable who arrests or detains, or is it a judgment that falls to be made by the officer in charge of the police station?
The Earl of MANSFIELD: My Lords, the statutory duty is placed on the police and, therefore, one would assume—I think rightly—that the duty is on what I would call the officer in charge of the case.
On Question, Motion agreed to.

COMMONS AMENDMENT
15 Clause 2, page 3, line 41, after 'offence,' insert reasonably'.
The Earl of MANSFIELD: My Lords, I beg to move that this House doth agree with the Commons in the said amendment. The purpose of this amendment, which was moved in another place by the honourable Member for the Western Isles, is to provide that the power to take fingerprints or other prints from a detained person is exercised only where a constable reasonably considers this appropriate. It thus imports the test of reasonableness into the sub-paragraph.
Moved, That this House doth agree with the Commons in the said amendment. —(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
16 Clause 2, page 4, line 10, at end insert 'both on so detaining him and on arrival at the police station or other premises'.
17 Clause 3, page 4, line 11, after '3.' insert —'(1)'
18 Clause 3, page 4, line 12, after 'who' insert', not being a person in respect of whose custody or detention subsection (3) below applies'.
19 Clause 3, page 4, line 24, at end insert 'and the person shall be informed of such entitlement—

(i) on arrival at the police station or other premises; or

(ii) where he is not arrested, or as the case may be detained, until after such arrival, on such arrest or detention.

(2) Where the person mentioned in paragraph (a) of subsection (1) above requests such intimation to be sent as is specified in that paragraph there shall be recorded the time when such request is—

(i) made;

(ii) complied with.

(3) Without prejudice to the said section 19 or 305, a constable shall, where a person who has been arrested and is in such custody as is mentioned in paragraph (a) of subsection (1) above or who is being detained as is mentioned in paragraph (b) of that subsection appears to him to be a child, send without delay such intimation as is mentioned in the said paragraph (a), or as the case may be paragraph (b), to that peron's parent if known; and the parent—

(a) in a case where there is reasonable cause to suspect that he has been involved in the alleged offence in respect of which the person has been arrested or detained, may; and

(b) in any other case shall, be permitted access to the person.

(4) The nature and extent of any access permitted under subsection (3) above shall be subject to any restriction essential for the furtherance of the investigation or the well-being of the person.
(5) In subsection (3) above—

(a) 'child' means a person under 16 years of age; and

(b) 'parent' includes guardian'.

The Earl of MANSFIELD: My Lords, I have already spoken to Amendment No. 16 and I beg to move Amendments Nos. 16 to 19 en bloc.
Moved, That this House doth agree with the Commons in the said amendments. —(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENT
20 Clause 6, page 5, line 41, at end insert 'and outwith the presence of any co-accused '.
Lord MACKAY of CLASHFERN: My Lords, I beg to move that this House doth agree with the Commons in the said amendment. Perhaps I could also speak to Amendments No. 29 and 37. The purpose of these amendments is to deal with the situation that at present all co-accused are judicially examined together. This does not matter when the procedure is purely formal, as it is now. However where, as in future, judicial examination is to have a real function, it is necessary to ensure that each accused may give his account of events without the pressure of other accused being present and without the temptation to construct a joint, false story. It also emphasises the individual nature of judicial examination—as opposed to treating all co-accused as a group without separate individual identities and interests. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(Lord Mackay of Clashfern).
On Question, Motion agreed to.

COMMONS AMENDMENTS
21 Clause 6, page 6, line 2, leave out 'section' and insert 'sections'.
22 Clause 6, Page 7, line 23, leave out subsection (6).
23 Clause 6, Page 7, line 28, at end insert—
Record to be made of proceedings at examination.
"20B—(1) The prosecutor shall provide for a verbatim record to be made by a shorthand writer of all questions to, and answers and declarations by, the accused in examination, or further examination, under sections 20 and 20A of this Act.
(2) The shorthand writer shall sign the transcript of the notes taken by him and shall certify that it is a complete and accurate record of the said questions, answers and declarations; and, subject to subsection (4) below, it shall for all purposes be so deemed.
(3) Subject to subsections (5) and (6) below, within 14 days of the date of examination, or further examination, the prosecutor shall—

(a) serve a copy of the transcript on the accused examined; and

(b) serve a further such copy on the solicitor (if any) for that accused.

(4) Subject to subsections (5) and (6) below, where notwithstanding the certification mentioned in subsection (2) above the said accused or the prosecutor is of the opinion that a transcript served under paragraph (a) of subsection (3) above contains an error or is incomplete he may—
1780

(a) within 10 days of service under the said paragraph (a), serve notice of such opinion on the prosecutor or as the case may be the said accused; and

(b) within 14 days of service under paragraph (a) of this subsection, apply to the sheriff for the error or incompleteness to be rectified;

and the sheriff shall within seven days of the application hear the prosecutor and the said accused in chambers and may authorise rectification:
Provided that where—

(i) the person on whom the notice is served under paragraph (a) of this subsection agrees with the opinion to which that notice relates the sheriff may dispense with such hearing;

(ii) the said accused neither attends, nor secures that he is represented at, such hearing it shall, subject to paragraph (i) above, nevertheless proceed.

(5) Where at the time of a further examination a trial diet is already fixed and the interval between the further examination and that diet is not sufficient to allow of the time limits specified in subsections (3) and (4) above, the sheriff shall (either or both)—

(a) direct that those subsections shall apply in the case with such modifications as to time limits as he shall specify;

(b) postpone the trial diet:

Provided that postponement under paragraph (b) above alone shall only be competent where the sheriff considers that to proceed under paragraph (a) above alone, or paragraphs (a) and (b) above together, would not be practicable.
(6) Any time limit mentioned in subsections (3) and (4) above (including any such limit as modified by a direction under subsection (5) above) may be extended, in respect of the case, by the High Court.
(7) In so far as it is reasonably practicable so to arrange, the sheriff who deals with any application made under subsection (4) above shall be the sheriff before whom the examination (or further examination) to which the application relates was conducted.
(8) Any decision of the sheriff, as regards rectification under subsection (4) above, shall be final.
(9) A copy of—

(a) a transcript required by paragraph (a) of subsection (3) above to be served on an accused or by paragraph (b) of that subsection to be served on his solicitor; or

(b) a notice required by paragraph (a) of subsection (4) above to be served on an accused or on the prosecutor,

may either be personally served on the accused, solicitor or prosecutor (as the case may be) or sent to him by registered post or by the recorded delivery service; and a written execution purporting to be signed by the person who served such

1781
transcript or notice, together with, where appropriate, a post office receipt for the relative registered or recorded delivery letter shall be sufficient evidence of service of such a copy.'.
24 Clause 6, Page 7, leave out line 29 and insert—
'(3) For section 151 of the 1975 Act (accused's declaration in solemn proceedings to be received in evidence without being sworn to by witnesses), there shall be substituted'.
25 Clause 6, Page 7, line 31, leave out 151A' and insert '151'.
26 Clause 6, Page 7, leave out subsections (2) and (3)' and insert 'subsection (2)'.
27 Clause 6, Page 7, line 32, leave out '20A(3)' and insert '20B'.
28 Clause 6, Page 7, line 33, after 'Act,' insert '(with any rectification, authorised under subsection (4) of that section, incorporated).'.
3.27 p.m.
Lord MACKAY of CLASHFERN: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 21 to 28 en bloc. The purpose of these amendments is to deal with what we regard as important in connection with judicial examination; namely, to ensure that a record of the examination shall be made which is accepted as accurate by both parties, with the sheriff arbitrating in any disputes. The procedure set out in the amendment would ensure this and is in accordance with the Thomson Committee recommendations, subject to the fact that the First Diet recommendations have been modified.
It is intended that there shall be provision for tape recording of proceedings at judicial examination so that the sheriff will be able to check the record in the event of dispute. As Thomson recommended, only questions and answers are to be recorded. The cost of transcribing a full examination would be high, and unjustified when a question and answer record would allow greater freedom to the accused. We envisage a situation where the prosecutor will frame a question which will then be subject to comment by the sheriff, possibly at the prompting of the defence solicitor. The accused, before answering, may consult his solicitor. It is thus only approved questions and carefully considered replies which will be recorded. This is unlikely to be to the disadvantage of the accused, whereas a record which showed to the jury, for
1782
example, the question the accused felt unable to answer without legal advice, might prejudice him This is the basic explanation for these amendments. I beg to move Amendments Nos 21 to 28 en bloc.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Mackay of Clashfern.)
Lord McCLUSKEY: My Lords, the noble and learned Lord the Lord Advocate has spoken to eight amendments at the same time, and certainly I would acknowledge that they improve the situation which is covered by Clause 6. But, as your Lordships will see, this document before us contains no fewer than 21 amendments to Clause 6, and there were amendments made to that clause before it left this House.
If one now looks at the length and complexity of what is proposed to be added—for example, in Amendment No. 23— one sees that one has provision here for all kinds of bureaucratic nonsenses. One has notices; one has shorthand notes; one has service of notices within certain periods of time; applications for extension; application to the High Court; service by registered post, and so on. One is building here an enormously clumsy apparatus and introducing into the criminal system rigidities which we could simply well do without.
The clause has no friends. Its constant amendment, both in this place and in another place, have shown the need for substantial changes in the Government's original thinking. It is not too late for the Government to think again, although I would not ask your Lordships to reject the amendments. I accept that they improve the clause. However, I ask the Government, before they exercise their power under Section 81(2) of the Act, as it will be—namely, the commencing powers—to think long and hard before they bring the clause into force.
It is an unlovely and unloved clause. It is a procedure that has no friends. I cannot believe that it will simplify trials or make justice more easy to attain in Scotland. I ask the Government to take that into account before they bring this part of the Act, as it will be, into operation.
Lord FOOT: My Lords, I cannot help thinking that the noble and learned Lord, Lord McCluskey, was a little ungenerous to the Government. I recognise that there has been long and anxious consideration about the clause. However, it should be recognised that the clause, which was introduced originally by the Government in this House, was closely examined, and that during the course of the debates the Govenment gave way on a number of matters and incorporated various things for which we on these Benches and on the Opposition Benches had asked.
The Bill then went to the Commons. Those in another place introduced a number of amendments, including the ones that we are discussing now, all of which amend the clause and all of which are in favour of the accused person, and for the protection of civil rights. Whatever objections there may have been to the clause in the first place—I hesitate to speak about that because this is a matter of intricate Scottish procedural law—it seems that many of them have been cleared away in the course of the passage of the Bill in this House and in another place.
I use this opportunity to say—I do not think that I shall have occasion to intervene again in these debates this afternoon because everything that is under discussion, except possibly one matter, is likely to be agreed by the House—that on any showing what is being done in Clauses 1, 2, 3, 5 and 6, which are the clauses with which I and my noble friends were mainly concerned when the Bill was in this House, is of considerable importance. The clauses introduce a new pattern of procedure for dealing with suspects and the process of interrogation of suspects.
Whatever one may think about it, this will be an important experiment in criminal law in Scotland. I suggest that it will be an important experiment for the purposes of English law. A committee is now discussing whether the system of the Judges' Rules and the rest need to be amended, and I understand that it will come up with fairly considerable proposals.
It would be churlish of myself and my noble friends who have taken some part in the discussion on this Bill if we were
1784
not to acknowledge, as I am glad to do, that the Government in this House and, I believe, in another place, from what I read of the debates that took place there, have shown an extremely accommodating attitude. Some reform of this kind is essential. At the end of the day this House and the other House may well be able to congratulate themselves upon passing a measure of major importance in criminal law. With all respect, I add my congratulations to the Lord Advocate and the noble Lord.
Lord MACKAY of CLASHFERN: My Lords, I think that we should like to express our appreciation to the noble Lord, Lord Foot, for his comments. We have endeavoured to improve the clause. We are grateful to all those who have participated in that process, both here and in another place. This is the sort of development of the law which requires as much help as it can get from everyone who has anything to contribute. We gratefully acknowledge the help that we have received.
The noble and learned Lord, Lord McCluskey, criticises the clause for being bureaucratic. The difficulty is that one has to provide for a number of eventualities. One hopes that in most cases the eventualities will not arise and that the record will be approved simply. I believe that it is a clause that may gather friends as it goes along. We shall attend to what the noble and learned Lord said, but we are confident that the noble Lord, Lord Thomson, was right in recommending a procedure of this sort, and we are glad that it has met with some acceptance up to date.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Mackay of Clashfern.)
On Question, Motion agreed to.
3.35 p.m.

COMMONS AMENDMENT
29 Clause 6, page 7, line 33 leave out second 'the' and insert 'an'.
Lord MACKAY of CLASHFERN: My Lords, I beg to move that the House doth agree with the Commons in their Amendment No. 29. I have already spoken to the amendment.
Moved, That this House doth agree with the Commons in the said amendment. —(Lord Mackay of Clashfern.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
30 Clause 6, page 7, line 39, leave Out 'It' and insert 'Subject to sections 20B(2) and 76(1)(b) of this Act, on the application of either an accused or the prosecutor, the court may refuse to allow the record or sonic part of the record to be read to the jury; and at the hearing of such application it'.
31 Clause 6, page 7, line 45, leave out subsection (3) and insert—
'(3) "Record" in subsection (2) above comprises, as regards any trial, each record included, under section 78(2) of this Act, in the list of productions.'
32 Page 8, leave out line 3 and insert—
(4) For section 352 of the 1975 Act (accused's declaration in summary proceedings to be received in evidence without being sworn to by witnesses), there shall be substituted'.
33 Page 8, line 5, leave out '352A' and insert '352'.
34 Page 8, line 5, leave out 'subsections (2) and (3)' and insert 'subsection (2)'.
35 Page 8, line 6, leave out '20A(3)' and insert '20B'.
36 Page 8, line 7, after 'Act' insert '(with any rectification, authorised under subsection (4) of that section, incorporation),'.
37 Page 8, line 7, leave out second 'the' and insert 'an'.
38 Page 8, line 10, leave out 'It' and insert 'Subject to section 20B(2) of this Act and to subsection (4) below, on the application of either an accused or the prosecutor, the court may refuse to admit the record or some part of the record as evidence; and at the hearing of such application it'.
39 Page 8, line 16, leave out subsection (3) and insert—
'(3) "Record" in subsection (2) above comprises, as regards any trial, each record which it is sought to have received in evidence under subsection (1) above.'.
40 Page 8, line 21, leave out '(3)' and insert '(2)'.
Lord MACKAY of CLASHFERN: My Lords, I beg to move that the House doth agree with the Commons in their Amendments Nos. 30 to 40 en bloc.
Lord McCLUSKEY: My Lords, before we leave the clause, I say one word in reply to the noble Lord, Lord Foot. acknowledge that I have never disputed
1786
that the amendments made both in this House and in the other place improve the rights of the accused person, to which Clause 6 relates. However, all these changes and all these new and complicated procedures have become necessary only because the most basic right of all—namely, the right of silence—is being substantially impaired by the clause.
It may be that in the fullness of time the clause will gather friends, though I doubt it. I think that it will merely cause delay and substantial expense. It may gather a few friends among practitioners with the benefit of legal aid behind them. The clause needs friends because it has none at the moment.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Mackay of Clashfern.)
On Question, Motion agreed to.

COMMONS AMENDMENT
41 Clause 11, page 11, line 32, at end insert—
'(aa) in subsection (2), after the word "subsection" there shall be inserted the words—
"of a judge—

(a) to pronounce an order of court assigning a diet for the disposal of the case may be exercised on his behalf by the clerk of court;

(b)";'.

Lord MACKAY of CLASHFERN: My Lords, I beg to move that the House doth agree with the Commons in their Amendment No. 41.
The amendment is designed to remove a procedural difficulty which emerged in the interpretation of Section 314 of the 1975 Act and which has substantial implications for the application of the six months' time limit that is referred to in the section. There is no reason to expect that it will work in any way to the disadvantage of an accused person. The purpose is to provide that the judge's power in Section 314 to assign a diet, instead of it having to be exercised by the judge personally, may be, but does not have to be, exercised by a clerk of court.
Moved, That this House doth agree with the Commons in the said amendment. —(Lord Mackay of Clash fern.)
On Question, Motion agreed to.

COMMONS AMENDMENT
42 Clause 17, page 16, line 3, leave out from '(2)' to 'an' in line 4.
Lord MACKAY of CLASHFERN: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 42. The amendment was made in another place in response to an Opposition proposal. Some honourable Members in another place were concerned that as drafted the clause might create the possibility of double jeopardy. They wished to ensure that we accepted the amendment. I hope that it meets with your Lordships' acceptance.
Moved, That this House doth agree with the Commons in the said amendment.—(Lord Mackay of Clashfern.)
On Question, Motion agreed to.

COMMONS AMENDMENT
43 Clause 21, page 19, line 29, leave out subsection (2).
Lord MACKAY of CLASHFERN: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 43. This is a more important amendment than those with which we have been dealing recently. It was moved in another place by the honourable Member for Glasgow, Garscadden. It limits the power for a court to allow a trial to proceed in the accused's absence if he misconducts himself to solemn procedure. That is a suggestion that was made by some noble Lords in this House. I remember particularly that the noble Earl, Lord Selkirk, made the suggestion. It was supported in various parts of the House. The noble Lord, Lord Ross of Marnock, supported the suggestion and we agreed to consider it.
Having considered the matter carefully, we have come to the conclusion that as long as the power remains in solemn procedure it is adequate for our purpose. Accordingly, we have restricted it to that.
Moved, That this House doth agree with the Commons in the said amendment.—(Lord Mackay of Clashfern.)
Lord ROSS of MARNOCK: My Lords, we are very glad that the Lord Advocate has looked at this. It is rather intriguing that on an earlier amendment I heard a Minister say that he would look at some-
1788
thing. If he looked at it, it puzzled me what he was going to do after we had passed the Lords' amendments. I did not think that we would have another opportunity to do anything after we had looked at it. But the Lord Advocate had ample opportunity, he used the opportunity well, and we are grateful for the change that has been made.
The Earl of SELKIRK: My Lords, may I thank the noble and learned Lord. I am sure that that is the right course, and I am glad that the Government agreed to it.
On Question, Motion agreed to.

COMMONS AMENDMENTS
44 Clause 22, page 19, line 46, leave out second 'the' and insert 'a'.
45 Page 20, line 8, after '(i)', insert 'where the person is concerned in the proceedings as a witness only and no one against whom the proceedings are taken is under the age of 16 years, the foregoing provisions of this subsection shall not apply unless the court so directs;
(ii)'.
46 Page 20, line 11, after 'section' insert '(including such requirements as applied by a direction under paragraph (i) above)'.
47 Page 20, line 16, leave out requirements of this section' and insert 'said requirements'.
3.41 p.m.
Lord MACKAY of CLASHFERN: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 44 to 47 en bloc. These amendments were made in the light of representations from the press. Their effect is to remove from the scope of the restrictions on the identification of children involved in criminal proceedings children who are witnesses only—that is to say, not also victims, or alleged victims—of the matter in issue, in cases where adults only are accused. The court will however retain the discretion to apply the restriction in such cases in appropriate circumstances.
The Government recognise the deep feelings sincerely held on both sides of the argument about the extent to which children should be protected from publicity. The paramount consideration is in our view the welfare of the child and the possibility of his rehabilitation as a useful member of society. We are satisfied that Clause 22, as amended, will achieve

1789
the best balance between the legitimate concern of the press to publish court proceedings and the need to protect children from unnecessary and damaging publicity.
I should emphasise that Clause 22 does not place an absolute ban on publication. It gives the judge discretion to decide whether or not a child should be identified, and I undertook that the court would remind judges of their power when a child is convicted, not for the purpose (as I think was suggested in another place) of telling the judges their job—I should not like to undertake that responsibility—but for the purpose of reminding them that they have this power. Amendment No. 44 is a minor drafting amendment to allow for cases where there is more than one accused. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Mackay of Clashfern.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
48 Clause 23, page 20, line 33, leave out 'one' and insert 'three'.
49 Clause 23, page 20, line 36, leave out 'one juror' and insert 'three jurors'.
The Earl of MANSFIELD: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 48 and 49 en bloc. This amendment was made in another place in the light of concern, expressed in both Houses, that the Government's proposal to reduce the number of peremptory challenges of jurors from five to one might lead to an increase in the number of challenges on cause shown. It seems a reasonable compromise to allow three peremptory challenges; five is certainly too many, since it allows the jury to be sifted by counsel's superficial view of their likely prejudice for or against his client; and, on reconsideration, we agree that one challenge may be too few. I hope that this amendment will be acceptable to the House, and to those noble Lords among whom was numbered the noble Lord, Lord Mishcon, who proposed such an amendment when the Bill was considered before your Lordships in Committee. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
Lord McCLUSKEY: My Lords, as early as January I suggested that this provision in the Bill was wrong. In my absence my noble friend Lord Mishcon moved an amendment to the effect of the present amendment and the noble Earl persuaded those behind him to troop through the Lobby in substantial numbers to defeat the proposal which is now recommended by him to the House. I am glad that he belatedly acknowledges the reasonableness of what we then proposed, and I hope that the House will accept this amendment.
On Question, Motion agreed to.

COMMONS AMENDMENTS
50 Clause 24, page 21, line 8, leave out from 'judge' to 'shall' in line 10 and insert—

'(i) in giving a direction, whether or not sought under paragraph (b) below; or

(ii) in response to a request made under that paragraph)'.

51 Clause 24, page 21, line 15, after 'to' insert 'receive or'.
Lord MACKAY of CLASHFERN: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 50 and 51. May I take these two amendments together. The purpose of this amendment is really to make sure that the power that a judge has to recall a jury after they have retired to give them a direction which he should have given them during his summing up is not destroyed by the new arrangement. The intention is to preserve that power, and it looked possible that the way that the clause had been drafted to make arrangements for the jury might have given rise to the idea that the power was excluded. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments—(Lord Mackay of Clashfern.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
52 Clause 26, page 22, line 30, at end insert—
'(1A) For the purposes of any summary criminal proceedings, a report purporting to be signed by two authorised forensic scientists shall, subject to subsection (2) below, be sufficient evidence of any fact (or conclusion as to fact) contained

1791
in the report and of the authority of the signatories.
In the foregoing provisions of this subsection, "authorised" means authorised by the Secretary of State to make a report to which this subsection shall apply.'.
53 Clause 26, page 22, leave out line 31 and insert—
'(2) Subsections (1) and (1A) above shall not apply to a certificate, or as the case may be, report'.
Lord MACKAY of CLASHFERN: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 52 and 53. I also wish to speak to Amendments Nos. 54 to 56 and 60 to 66. The purpose of these amendments is to extend the provisions for routine evidence in Clause 26 to reports provided by forensic scientists. Under these amendments such evidence could be received by certificate in summary cases, and could be spoken to in court by one scientist only (without the need for corroboration) in indictment cases. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments—(Lord Mackay of Clashfern.)
On Question, Motion agreed to.

COMMONS AMENDMENT
54 Clause 26, page 22, line 36, leave out 'date' and insert 'time'.
Lord MACKAY of CLASHFERN: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 54. The purpose of Amendments Nos. 54, 59 and 64 is to make clear that the right for the accused to challenge routine evidence remains available, if there are special circumstances, right up to the moment when the trial starts. I hope that the House will welcome these amendments as extending slightly the opportunity for challenge. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment—(Lord Mackay of Clashfern.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
55 Clause 26, page 22, line 40, at end insert 'or as the case may be the fact, conclusion or authority mentioned in subsection (1A) above'.
56 Clause 26, page 22, line 41, after certificate 'insert, 'or as the case may be report,'.
Lord MACKAY of CLASHFERN: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 55 and 56. I have already spoken to these amendments. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Mackay of Clashfern).
On Question, Motion agreed to.

COMMONS AMENDMENTS
57 Clause 26, page 22, line 41, after 'above' insert', or of a conviction or extract conviction required by subsection (7) below,'.
58 Clause 26, page 22, line 42, leave out 'this subsection' and insert 'either of those subsections or by subsection (5) or (6) below'.
Lord MACKAY of CLASHFERN: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 57 and 58. These are required in order to tidy up the provisions for service of documents in relation to Clause 26. Subsection (3) contains detailed provisions as to the manner of service on the prosecutor. Subsections (5), (6) and (7) contain provisions with regard to notice to the prosecutor, and Amendments Nos. 57 and 58 attract to them subsection (3) provisions with regard to the manner of service. They are basically drafting amendments. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Mackay of Clashfern.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
59 Clause 26, page 23, line 16, leave out 'date' and insert 'time'.
60 Clause 26, page 23, line 21, after 'pathologists' insert 'or forensic scientists'.
62 Clause 26, page 23, line 25, after 'pathologist' insert 'or forensic scientist'.
Lord MACKAY of CLASHFERN: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 59 to 62. I have spoken to these amendments. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Mackay of Clashfern).
On Question, Motion agreed to.

COMMONS AMENDMENT
63 Clause 26, page 23, line 24, after 'fact' insert ('or conclusion as to fact)'.
Lord MACKAY of CLASHFERN: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 63. Amendment No. 63 is essentially a drafting point. The intention of the clause is that the evidence of an autopsy report, for example, should be able to be taken by certificate. However, such a report includes not only fact (such as body temperature at a certain time) but also conclusions drawn from these facts (for example, that therefore death probably occurred at some particular time). Amendment No. 63 secures that both facts and conclusions on facts may be entered in evidence with the new procedure. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(Lord Mackay of Clashfern.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
64 Clause 26, page 23, line 27, leave out 'date' and insert 'time'.
65 Clause 26, page 23, line 28, leave out 'gives notice' and insert 'serves notice on the prosecutor'.
66 Clause 26, page 23, line 29, after pathologist' insert 'or forensic scientist'.
67 Clause 26, page 23, line 32, leave out '(a)'.
68 Clause 26, page 23, line 42, leave out from 'application' to end of line 9 on page 24.
Lord MACKAY of CLASHFERN: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 64 to 68. I have already spoken to these amendments. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Mackay of Clashfern.)
On Question, Motion agreed to.

COMMONS AMENDMENT
69 Clause 30, page 27, line 14, leave out 'such' and insert 'the'.
Lord MACKAY of CLASHFERN: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 69. This is a purely drafting amendment designed to bring the wording
1794
of the provision into line with the three other new provisions in Clause 30. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(Lord Mackay of Clashfern.)
On Question, Motion agreed to.

COMMONS AMENDMENT
70 After Clause 31 insert the following new clause:
"Evidence by letter of request or on commission
(1) In any criminal proceedings in the High Court or the sheriff court the prosecutor or the defence may, at an appropriate time, apply to a judge of the court in which the trial is to take place (or, if that is not yet known, to a judge of the High Court) for—

(a) the issue of a letter of request to a court, or tribunal, exercising jurisdiction in a country or territory outside the United Kingdom, Channel Islands, and Isle of Man for the examination of a witness resident in the said country or territory; or

(b) the appointment of a commissioner to examine, at any place in the United Kingdom, Channel Islands, or Isle of Man, a witness who by reason of being ill or infirm is unable to attend the trail diet.

(2) A hearing, as regards any application under subsection (1) above by a party, shall be conducted in chambers but may be dispensed with if the application is not opposed. The application may be granted only if the judge is satisfied that—
(a) the evidence which it is averred the witness is able to give is necessary for the proper adjudication of the trial;
and
(b) there would be no unfairness to the other party were such evidence to be received in the form of the record of an examination conducted by virtue of that subsection.
(3) Any such record as is mentioned in paragraph (b) of subsection (2) above shall, without being sworn to by witnesses, be received in evidence in so far as it either accords with the averment mentioned in paragraph (a) of that subsection or can be so received without unfairness to either party.
(4) The procedure as regards the foregoing provisions of this section shall he prescribed by Act of Adjournal under the 1975 Act.
(5) In subsection (1) above, "appropriate time" means as regards—

(a) solemn proceedings, any time before the oath is administered to the jury;

1795

(b) summary proceedings, any time before the first witness is sworn,

or (but only in relation to an application under paragraph (b) of that subsection) any time during the course of the trial if the circumstances on which the application is based had not arisen, or would not have merited such application, within the period mentioned in paragraph (a), or as the case may be (b), of this subsection.
(6) This section is without prejudice to any existing power at common law to adjourn a trial diet to the place where a witness is.".
Lord MACKAY of CLASHFERN: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 70. Amendment No. 70 is for the purpose of introducing a new clause implementing the recommendation of the Thomson Committee that criminal courts should be given power to receive the evidence of witnesses who are unable to be present at a trial, provided that the court is satisfied that the evidence is necessary and that no unfairness to either party would result. Your Lordships will note a misprint on the Marshalled List. It is the break in the new clause where "trail" appears instead of "trial". These stringent requirements mean that the evidence will only be so received when it is of a formal nature; for example, the evidence of an expert witness whose testimony is not disputed, and there will thus in practice not be a great number of cases where the new procedure can be resorted to.
I would emphasise that the right to apply to the court to exercise these powers will be available to both the prosecution and the defence, and each will have the right to oppose any application made by the other. The power will be available only to the sheriff court and the High Court but not in the district court. I think the clause sufficiently explains its method for me not to require to go into any further detail. I beg to move.
Moved, That this House cloth agree with the Commons in the said amendment.—(Lord Mackay of Clashfern.)
Lord McCLUSKEY: My Lords, without asking the noble and learned Lord to go into all the details, I wonder whether he can assist me to understand one part of it. I refer in particular to the use of the word "or" in the 29th line of the
1796
new clause. As I understand it, the new clause, subsection (2), requires the judge to be satisfied about certain matters; that is, first, the necessity for the evidence which is required to be taken in this fashion and, secondly, as to the absence of unfairness. Both these judgments require to be made by him, of course, at the time the application is made, and, therefore, before the evidence is recorded. Subsection (3) then deals with the situation after the evidence has been obtained and the record is available, and that requires that that record shall be received. But it goes on to say:
"shall … be received in evidence in so far as it either accords with the averment mentioned in paragraph (a) 'the one relating to the necessity of that subsection' or can be so received without unfairness to either party".
Does that mean that if the evidence is judged to satisfy the test of necessity then the court has no discretion to refuse to allow the evidence to be received, even if the court could be persuaded that it was unfair that the evidence be received?
Lord MACKAY of CLASHERN: My Lords, I am obliged to the noble and learned Lord for raising this point. It gives me the opportunity to explain a little further what is behind this subsection (3). Subsection (2) describes the initial procedure on the application for this method of taking evidence, and your Lordships will see that it provides, about halfway down the first part of subsection (2), that
"The application may be granted only if the judge is satisfied that—
(a) the evidence which it is averred the witness is able to give is necessary for the proper adjudication of the trial;"
If I may pause there for a minute, that refers to evidence which it is averred the witness is able to give and the judge is told that at that stage and, having been told that, he is then to judge, in the light of that, whether it would be unfair to either party that this application should be granted. Assuming he decides that the application should be granted, the matter of fairness, so far as evidence covered by that averment is concerned, is settled, and evidence which comes in the report or in the record which accords with that averment is already covered by the judge's decision. But, of course, it often happens that, even with the best prepared cases, when you actually go to

1797
see the witness and hear what he has to say he may say something else, which is not covered by what the judge was told the witness was going to say. When that happens, it is obviously a question whether the record on that part should be admitted. What we are saying is, where the evidence goes beyond what was originally forecast to the judge when he granted the application, it is only to be received where it may be so received without unfairness to either party. I hope that explains the point which the noble and learned Lord has raised.
On Question, Motion agreed to.

COMMONS AMENDMENT
71 Clause 39, page 30, line 14, after ' insert ' in a case'.
The Earl of MANSFIELD: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 71. This is a very minor drafting amendment, the purpose of which is to clarify the meaning of the words "any other case", as referred to in subparagraph 2 in Clause 39. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENT
72 Clause 40, page 31, line 6, leave out borstal training or'.
The Earl of MANSFIELD: My Lords, I beg to move that this House cloth agree with the Commons in their Amendment No. 72. Perhaps I could speak to Amendments Nos. 148 to 154, which are to Schedule 7, when moving this amendment.
These are drafting amendments, necessary to take account of the abolition of borstal training in Northern Ireland by Orders in Council, which took effect on 1st October this year. Amendment No. 72 deletes the reference to borstal training in Clause 40(2)(b)(iii). Amendments Nos. 148 to 154 make the necessary changes to paragraphs 7 and 10 of Schedule 7 to reflect the amendments to the Criminal Justice Act 1961 made by one of the Northern Ireland Orders.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENT
73 Clause 42, page 32, leave out line 28 to 34.
The Earl of MANSFIELD: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 73. This amendment is basically consequential on the decision made by this House and confirmed on a free vote in Committee in another place, that in murder cases the making of minimum recommendations as to sentence should remain at the judge's discretion. The amendment deletes Clause 42(4), which was drafted on the assumption that such recommendations would become mandatory, except in exceptional cases. Its purpose is to assist the Appeal Court in maintaining the maximum degree of consistency in the making of minimum recommendations, but the subsection is inappropriate now that Clause 42 has been amended, as indeed the noble and learned Lord, Lord McCluskey, pointed out in this House on Report.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENT
74 Clause 44, page 35, line 9, after ' above,' insert 'on a male person'.
The Earl of MANSFIELD: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 73. The new Section 207(5) to the 1975 Act as contained in Clause 44 provides, in relation to the detention of young offenders, that where detention is imposed by way of sentence for a period of between 28 days and 4 months the court shall order that the detention be in a detention centre, except in specified circumstances. It has never been the Government's intention that girls should be sent to detention centres. No detention centre provision has ever been made for girls in Scotland. The Home Office once introduced a female detention centre, but it was closed after a study by the Advisory Council on the Penal System found the brisk régime unsuitable for girls. However it was

1799
brought to our attention that as drafted new Section 207(5) would apply to both female and male offenders; and this amendment is therefore necessary to restrict that provision to male offenders only. All female young offenders sentenced to detention will serve their sentences in young offenders' institutions (under new Section 207(5)(b)).
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENT
75 Clause 44, page 35, line 19, leave out at 'and insert in'.
The Earl of MANSFIELD: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 75. This a trivial drafting amendment I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
76 Clause 44, page 35, line 42, leave out from 'Where' to end of line 2 on page 36 and insert a person is serving a period of detention in a detention centre when a period is ordered which is—

(a) consecutive to the period being served and the periods together total more than 5 months; or

(b) concurrent with the period being served and is for more than 5 months, the convicted person shall,".

77 Clause 44, Page 36, line 6, at end insert or as the case may be of those concurrent periods '.
The Earl of MANSFIELD: My Lords, I beg to move that the House doth agree with the Commons in their Amendments Nos. 76 and 77 en bloc. New Section 207(9) to the 1975 Act, as contained in Clause 44, deals with the situation of an offender who is sentenced to detention in a detention centre whilst already serving such a sentence. Its intention is to ensure that no one serves a total sentence of more than five months in a detention centre, since the régime is not designed to suit longer terms. However, it has been pointed out to us by Professor G. H. Gordon that the meaning of the
1800
phrase "the total period to be served" in new Section 207(9) is not quite clear. It might be taken as meaning the total period of sentence outstanding, rather that (as was intended) the aggregation of the periods actually imposed by the courts. These two amendments remove the ambiguity and thus ensure that no one will serve a total sentence of more than five months in a detention centre.
Moved, That this House doth agree with the Commons in the said amendments. —(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
78 Clause 47, page 38, line 20, after 'enforcement' insert to, and shall be enforceable as if it had been imposed by'.
79 Clause 47, page 38, line 22, leave out to'.
80 Clause 47, page 38, line 24, leave out 'to'.
The Earl of MANSFIELD: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 78, 79 and 80 en bloc. The purpose of these drafting amendments is to make clear that a sheriff court enforcing a High Court fine has the same powers as it would have if it had imposed the fine itself, which includes the discretion to transfer the fine to another court under Section 196(1) of the 1975 Act.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENT
81 Clause 49, page 40, line 14, after 'a' insert 'maximum'.
The Earl of MANSFIELD: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 81. The purpose of this amendment is to clarify the drafting of Clause 49. It makes clear that where an offender pays part of his fine and defaults in the remainder, and no period of imprisonment in default has been specified, the offender is liable to a maximum period of imprisonment determined by reference to the table in new Section 407(1A). As drafted, subsection (1D) could be read as implying that this maximum period was to be imposed in every case.
Moved, That this House doth, agree with the Commons in the said amendment.— (The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENT
82 After Clause 49, insert the following new clause:
"Execution in different parts of United Kingdom of warrants for imprisonment for non-payment of fine.
"After section 38 of the Criminal Law Act 1977 there shall be inserted the following section—
"Execution in different parts of United Kingdom of warrants for imprisonment for nonpayment of fine.
38A.—(1) Subject to subsection (6) below, a person against whom an extract conviction is issued in Scotland for imprisonment in default of payment of a fine may be arrested—

(a) in England and Wales, by any constable acting within his police area;

(b) in Northern Ireland, by any member of the Royal Ulster Constabulary or the Royal Ulster Constabulary Reserve;

and subsections (4) and (5) of section 159 of the Magistrates' Courts Act (Northern Ireland) 1964 (execution without possession of the warrant and execution on Sunday) shall apply to the execution in Northern Ireland of any such extract conviction as those subsections apply in relation to the execution of a warrant for arrest.
(2) Subject to subsection (6) below, a person against whom there has been issued in England, Wales or Northern Ireland a warrant committing him to prison in default of payment of a sum adjudged to be paid by a conviction may be arrested in Scotland, by any constable appointed for a police area, in like manner as if the warrant were an extract conviction for imprisonment issued in Scotland in default of payment of a fine.
(3) A person arrested by virtue of subsection (1) above under an extract conviction or by virtue of subsection (2) above under a warrant of commitment may be detained under it in any prison in the part of the United Kingdom in which he was arrested; and while so detained he shall be treated for all purposes as if he were detained under a warrant of commitment or extract conviction issued in that part of the United Kingdom.
(4) An extract conviction or a warrant of commitment may be executed by virtue of this section
1802
whether or not it has been endorsed under section 4 of the Summary Jurisdiction (Process) Act 1981 or under section 27 of the Petty Sessions (Ireland) Act Act 1851.
(5) In this section—

'fine' includes any sum treated by any enactment as a fine for the purposes of its enforcement and any sum to be found as caution;

'imprisonment' includes, in the case of a person who is under the age of 21 years, detention;

'part of the United Kingdom' means England and Wales, Scotland or Northern Ireland;

'prison' means—

(i) in the case of a person who is under the age of 21 years arrested in Scotland, a young offenders institution; and

(ii) in the case of a person under that age arrested in Northern Ireland, a young offenders centre; and

'sum adjudged to be paid by a conviction' has the meaning given by section 150(3) of the Magistrate's Courts Act 1980 or, in Northern Ireland, section 169(2) of the Magistrates' Courts (Northern Ireland) Act 1964.
(6) This section shall not apply to the arrest of persons under the age of 17 years.".".
The Earl of MANSFIELD: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 82. I will, with permission, speak at the same time to Amendments Nos. 102 to 105 inclusive. This new clause and the associated amendments make reciprocal provision between Scotland and England and Wales, and between Scotland and Northern Ireland to secure first that warrants of apprehension and imprisonment in respect of fine defaulters may be executed in the other jurisdiction without the necessity of "backing", and secondly that imprisonment following thereon should be served locally in a prison of the jurisdiction in which the defaulter is apprehended.
The Thomson Committee in their second report expressed concern about the present procedure, under which a defaulter on a Scottish fine who is arrested in England has to be brought by the Scottish police to Scotland to serve his sentence. They

1803
noted that this is a source of much complaint, particularly by the police, because it creates needless difficulties and expense for them; and that it can also be abused by defaulters. For example, a Scotsman living in London who is anxious to return home to Scotland may give himself up to the police for non-payment of a small fine in the knowledge that he will be conveyed to a Scottish prison. On arrival he immediately pays his fine at the prison door and thus gets a free journey home. They therefore recommended that it should be competent for a sentence of imprisonment imposed in default of a payment of a fine by a Scottish court to be served in an English prison and vice versa: and that the extract conviction issued by the clerk of the court for nonpayment of the fine should be sufficient authority for the apprehension and imprisonment of the accused. At present in such circumstances the cumbersome procedure of obtaining "backing" from an English court has to be adopted. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
Lord McCLUSKEY: My Lords, the House will have noticed that this swingeing cut in public expenditure is directed exclusively at Scots. The noble Earl may take some comfort in the fact that there is no member of the Scottish National Party in this House to criticise him for it.
Lord ROSS of MARNOCK: My Lords, does this also mean that any application by a prisoner to be transferred to a Scottish prison will automatically be turned down?
The Earl of MANSFIELD: We used to have a Scottish Nationalist, my Lords, but it could have been that the conduct of the ill-fated Scotland Act by the noble and learned Lord, Lord McCluskey, frightened him off.
On Question, Motion agreed to.

COMMONS AMENDMENT
83 Clause 54, page 41, line 43, leave out £25 ' and insert ' £50 '.
4.5 p.m.
The Earl of MANSFIELD: My Lords, I beg to move that this House doth agree
1804
with the Commons in their Amendment No. 83. Clause 54 increases certain maximum fines for offences of drunkenness to take into account the change in the value of money since the penalties were last fixed, and also slightly increases the penalties in real terms so as to make available to the courts a higher fining power to replace imprisonment. The fines were last fixed, by the Penalties for Drunkenness Act 1962, at £5 and £10 respectively, for offences in this section. On reconsideration, we take the view that the implied distinction in gravity is somewhat arbitrary, and the Government therefore accepted this amendment in Committee in another place. The effect of this amendment will be that the three maximum fines specified in Section 70 of the 1903 Act will all be set at £50, which is the first step on the scale—rising from £50 to £1,000—to which all summary maximum fines are gradually being assimilated. The offences under Section 70 cannot readily be distinguished in gravity and it is notable that all three maxima were the same (40 shillings) when they were first set in 1903.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
84 Clause 56 page 42, line 32, leave out 'or'.
85 Clause 56 page 42, line 34, at end insert '; or
(c) at the same time as, under section 219 or 432 of that Act, it defers sentence.'
The Earl of MANSFIELD: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 84 and 85 en bloc. The purpose of these amendments is to make clear that a compensation order cannot be imposed at the same time as sentence is deferred. A compensation order, as it affects the offender, is to all intents and purposes a sentence, and it is illogical to defer sentence to take account of the offender's compliance with an order with which he is obliged to comply. Voluntary reparation will still be possible and courts may defer sentence so that offenders' voluntary efforts to make restitution can be taken account of in determining sentence where appropriate.

1805
If no restitution has by then been made, courts may impose a compensation order.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENT
86 Clause 56, page 42, line 36, after appropriation ' insert ', or the unlawful taking and using.'.
The Earl of MANSFIELD: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 86. Where there has been an offence involving either dishonest appropriation of property or the unlawful taking and using of a motor vehicle, Section 56(2) as it stands provides that any damage to the property taken shall be treated for the purposes of making a compensation order as if it had been a direct result of the offence regardless of how in fact the damage occurred. The statutory offence of "unlawful taking and using of a motor vehicle" is however only one example of the common law crime of unlawful taking and using, and this amendment is designed to extend the application of the section to cover also offences of this type at common law. This, for example, would enable compensation to be paid if a boat was taken without the owner's permission and abandoned and subsequently damaged.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENT
87 Clause 57, page 43, line 11, at end insert: Provided that where the person is serving, or is to serve, a period of imprisonment or detention no account shall be taken, in assessing such means, of earnings contingent upon his obtaining employment after release.'.
The Earl of MANSFIELD: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 87. This amendment is aimed at cases where an offender is already serving or about to serve some form of custodial sentence. Its purpose is to make clear that when making a compensation order in such cases, courts should not include in
1806
an assessment of the means of the offender earnings which he might have if he obtains employment upon his release. The Government agree with the arguments of the Dunpark Committee that to include such hypothetical earnings would be wrong and that the courts in Scotland should not follow the decision in an English case, Regina v Kneeshaw, where an assessment made on this basis by an inferior court was upheld on appeal. This amendment makes clear therefore that the courts should not take into account earnings which depend on an offender obtaining employment on leaving custody.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
Lord ROSS of MARNOCK: My Lords, we should congratulate the Government on their good sense in facing facts. With 250,000 unemployed in Scotland, it would not be wise to count on the earnings of a person who is in prison on the basis that he might find employment. There is little chance of that.
On Question, Motion agreed to.

COMMONS AMENDMENTS
88 Clause 64, page 44, line 39, leave out ' 72B of The Magistrates' Courts Act 1952 ' and insert ' 91 of the Magistrates' Courts Act 1980'.
89 Clause 64, page 45, line 17, leave out from orders)' to end of line 25.
The Earl of MANSFIELD: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 88 and 89 en bloc. These are both minor drafting amendments.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENT
90 Clause 67, page 47, line 1, leave out from ' Where ' to ' passengers ' in line 3 and insert a public service vehicle is being operated for the principal purpose of conveyancing'.
4.10 p.m.
The Earl of MANSFIELD: My Lords, I beg to move Amendment No. 90, and perhaps I could speak to Amendment No. 96 at the same time. These amend-

1807
ments will make all public service vehicles, not just contract carriages, subject to the controls on the carriage of alcohol providing they are being operated principally for the purpose of conveying passengers to or from a designated sporting event. It would be quite wrong if an operator using a coach to take supporters to or from a match was exempted from control merely because he employed some simple procedural device to avoid falling within the legal definition of "contract carriage", such as collecting fares separately from those travelling. It is more satisfactory to rely on the purpose for which the coach is being operated as the criterion of whether controls should apply, rather than the category into which it happens to fall under the provisions of the Transport Act.
In asking this House to agree with the Commons in these amendments, I should point out that there is a minor error in Amendment No. 90 as it appears in the printed list. The amendment refers to a public service vehicle
"being operated for the principal purpose of conveyancing".
Whatever the merits of the argument that solicitors should cease to have a monopoly of conveyancing, I am sure it is not a function which this House would wish to see carried out literally on the Clapham omnibus. The word "conveyancing" should of course read "conveying". I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
91 Clause 68, page 47 line 19, leave out 'holder' and insert 'operator'.
92 Clause 68, page 47 leave out 'licence in respect of a vehicle used and engaged' and insert 'which is being operated'.
93 Clause 68, page 47 line 22, leave out holder 'and insert operator'.
The Earl of MANSFIELD: My Lords, I beg to move Amendments Nos. 91 to 93 en bloc, and to speak to Amendment No. 97. These are minor drafting amendments which do not affect the intended application of Clause 68. They are consequential upon the Transport Act 1980, which was passed this Session. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
Lord ROSS of MARNOCK: My Lords, does changing "holder" of a public service vehicle licence to "operator of a PSV licence lighten the onus at all upon the driver?
The Earl of MANSFIELD: My Lords, these amendments have no effect upon the application.
On Question, Motion agreed to.

COMMONS AMENDMENTS
94 Clause 70, page 48, line 2, leave out 'use' and insert 'purpose'.
95 Clause 70, page 48, line 4, leave out 'use' and insert 'purpose'.
The Earl of MANSFIELD: My Lords, I beg to move Amendments Nos. 94 and 95 en bloc. These are minor drafting amendments. As drafted, Clause 70 refers to "medical use" as defined in the Medicines Act 1968, but the term actually used in that Act is "medical purpose". These amendments bring the wording of the clause into line with the 1968 Act. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
96 Clause 75, page 49, leave out lines 16 and 17.
97 Clause 75, page 49, line 29, leave out from and' to end of line 31 and insert—
'"operator" in relation to such a vehicle means—

(a) the driver if he owns the vehicle; and

(b) in any other case the person for whom the driver works (whether under a contract of employment or any other description of contract personally to do work);'.

The Earl of MANSFIELD: My Lords, I have spoken to these two amendments, Nos. 96 and 97. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
98 Clause 76, page 50, line 18, after 'court' insert '—(i) for a first such offence'.
99 Clause 76, page 50, line 21, at end insert', or to both; and
(ii) for any subsequent such offence to imprisonment for a term not exceeding 6 months, or to the fine mentioned in sub-paragraph (i) above, or to both'.
The Earl of MANSFIELD: My Lords, I beg to move Amendments Nos. 98 and 99. At present, Clause 76 provides for a maximum sentence of imprisonment of three months on conviction for vandalism in the sheriff summary court. The purpose of these amendments is to provide for a maximum sentence of six months in the case of a second or subsequent offence of vandalism. They thus reinforce the basic purpose of Clause 76, which is, by creating a statutory offence of vandalism, to enable courts to identify persistent offenders and to impose appropriate deterrent penalties upon them. They were made in another place in fulfilment of an undertaking which I gave to the noble and learned Lord, Lord Wilson of Langside, when the Bill was before your Lordships' House on Report. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENT
100 Clause 77, page 50, line 28, leave out ' providing residential' and insert'—

'(a) providing; or

(b) contributing by way of grant under section 10(3) of this Act to the provision by a voluntary organisation of, residential

The Earl of MANSFIELD: My Lords, this amendment is designed to enable local authorities to use the specific grants which will be provided by the Secretary of State under Clause 77 to grant-aid the provision of hostel accommodation by voluntary organisations, so that they will not necessarily have to undertake the provision themselves. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENT
101 After Clause 77, insert the following new clause:
("Homosexual offences.
.—(1) Subject to the provisions of this section, a homosexual act in private shall not be an offence provided that the parties consent thereto and have attained the age of twenty-one years.
(2) A male person who is suffering from mental deficiency which is of such a nature or degree that he is incapable of living an independent life or of guarding himself against serious exploitation cannot in law give any consent which, by virtue of subsection (1) above, would prevent a homosexual act from being an offence, but a person shall not be convicted on account of the incapacity of such a male person to consent, of an offence consisting of such an act if he proves that he did not know and had no reason to suspect that male person to be suffering from such mental deficiency.
(3) Section 97 of the Mental Health (Scotland) Act 1960 (prohibition on men on the staff of a hospital, or otherwise having responsibility for mental patients, having sexual intercourse with women patients) shall have effect as if any reference therein to having unlawful sexual intercourse with a woman included a reference to committing a homosexual act.
(4) Subsection (1) above shall not prevent a homosexual act from being an offence under any provision of the Army Act 1955, the Air Force Act 1955 or the Naval Discipline Act 1957.
(5) In this section, "a homosexual act" means sodomy or an act of gross indecency by one male person with another male person.
(6) Subject to the provisions of subsection (2) above, it shall be an offence to commit or to be party to the commission of, or to procure or attempt to procure the commission of a homosexual act—

(a) in public;

(b) without the consent of any party to the act;

(c) with a person under the age of twenty-one years; or

(d) where the act is committed on board a United Kingdom merchant ship wherever it may be, by a male person who is a member of the crew of that ship with another male person who is a member of the crew of that ship or any other United Kingdom merchant ship.

(7) In this section, "member of the crew" in relation to a ship, includes the master of the ship; "United Kingdom merchant ship" means a ship registered in the United Kingdom habitually used or used at the time of the alleged offence for the purposes of carrying passengers or goods for reward.
(8) It shall be an offence to procure or attempt to procure the commission of a homosexual act between two other male persons.
(9) From the commencement of this section a person who commits or is party to the commission of an offence under subsection (6) or subsection (8) above shall be liable on conviction on indictment to imprisonment for a term not exceeding two years or to a fine or to both and on summary conviction to imprisonment for a term not exceeding 3 months, or to a fine not exceeding the prescribed sum (within the meaning of section 289B of the 1975 Act).
(10) It shall be a defence to a charge of committing a homosexual act under subsection (6)(c) above that the person so charged being under the age of 24 years who had not previously been charged with like offence, had reasonable cause to believe that the other person was of or above the age of twenty-one years.
(11) A person who knowingly lives wholly or in part on the earnings of another from male prostitution or who solicits or importunes any male person for the purpose of procuring the commission of a homosexual act within the meaning of subsection (5) above shall be liable:

(a) on summary conviction to imprisonment for a term not exceeding six months, or

(b) on conviction on indictment to imprisonment for a term not exceeding two years.

(12) Premises shall be treated for the purposes of sections 13 and 14 of the Sexual Offences (Scotland) Act 1976 as a brothel if people resort to it for the purpose of homosexual acts within the meaning of subsection (5) above in circumstances in which resort thereto for heterosexual practices would have led to its being treated as a brothel for the purposes of those sections.
(13) No proceedings for an offence to which this subsection applies shall be commenced after the expiration of twelve months from the date on which that offence was committed. This subsection applies to:

(a)the offences mentioned in subsections (6) and (8) above; and

(b)any offence under subsection (11) above which consists of soliciting or importuning any male person for the purpose of procuring the commission of a homosexual act.".).

The LORD CHAIRMAN of COMMITTEES (Lord Aberdare): As an amendment to Commons Amendment No. 101, I call Amendment No. 101A.

LORDS AMENDMENT TO COMMONS AMENDMENT NO. 101
101A After subsection (1) insert—
("( ) An Act which would otherwise he treated for the purposes of this Act as being done in private shall not be so treated if done—

(a) when more than two persons take part or are present; or

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(b) in a lavatory to which the public have, or are permitted to have, access whether on payment or otherwise.").

Lord FRASER of TULLYBELTON: My Lords, Commons Amendment No. 101 introduced a new clause to the Bill, having the effect that a homosexual act committed in private shall not be an offence in Scotland provided both parties consent and are over 21. I am not disputing the principle of this new clause at all. My amendment is to introduce a clarifying provision to help clear up what is meant by "in private". Your Lordships will see that subsection (1) provides that a homosexual act in private shall not be an offence, but subsection 6(a) provides that it shall continue to be an offence if committed in public. The purpose of my amendment is to make clear just what is meant by "in private" in two respects,.
The amendment which I propose is in fact derived entirely from the corresponding section in the English Act, which is the Sexual Offences Act 1967, which is in terms very similar to this clause and which contains a provision such as I am proposing. The amendment proposed, to insert the words printed, is to show that when more than two persons are present it shall not be treated as being in private, or when committed in a lavatory to which the public have access it shall not be in private. I think there is quite a real difficulty as to what is "in private". One could imagine acts taking place in a private house. They could not be said to be in public, but if there were a number of people present it is obviously desirable that they should not be treated as being in private. The purpose of my amendment is to clear up that doubt.
At the same time, perhaps I should say that the next Amendment, No. 101B, is simply to alter subsection (6)(a), which provides that it shall be an offence to commit the act "in public". If the first amendment is carried, I think it would be better to have, in subsection (6)(a), that it shall be an offence if not committed in private, because they might not mean quite the same thing. I beg to move.
Moved, That Amendment No. 101A as an amendment to the Commons Amendment No. 101 be agreed to. —(Lord Fraser of Tullybelton.)
The Earl of SELKIRK: My Lords, I feel grateful to my noble and learned friend Lord Fraser for introducing these amendments. This clause was inserted in the other place on the last day this Bill was there in circumstances which prevented a Committee stage being held at all. The result is that this clause has never been examined closely in Committee; and I believe that in the minds of many Members of the other place it was passed in the belief that it was virtually the same as the provision in the English Act, in 1967. This was not true, and if anyone takes in Gay News they will find it is described as "a licence for orgy". I do not think for a moment that those who supported this clause in the other place had that in mind for one minute. I do not think they did. They misunderstood this clause as being something which was closely in line with the provision in the English Act. This is not the case.
I think we could refuse to put this amendment in, and I think there are reasons why we really could reasonably do so. Indeed, I do not think this House should allow itself to become a sort of dirty clothes basket, in which any clothes are put into it, they are washed, cleaned and ironed, and are handed back in a neat pile. But there are two considerations which I have in mind in supporting my noble and learned friend in his amendment. First, I do not think that many Members here or in the other place want this controversy to go on. They want it finished as soon as they possibly can. That is to say, the general rules for this form of activity should be as near as may be in the two countries. I think that that is what is required.
Secondly, I think that we want to avoid leap-frogging; that is to say, one country does one thing and then there is a demand for the other country to do the same. In this case, the English are demanding that the Scots should bring their law into line. If we went too far, then the Scots would demand that the English law be brought into line. This is undesirable in every way.
One thing which my noble friend did not mention is the question of sentences. The level of sentencing in this draft is very much less than in the English Act of 1967. That introduces also the element of the possibility of fining. I would not want
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to change that. I have no desire to see any more people going to prison than is absolutely necessary. I should not be one for changing sentencing policy. On these grounds, I hope that the House will accept both amendments, send the Bill back and get what amounts to an arrangement in both countries which is very substantially the same.
Lord BOOTHBY: My Lords, I hope that the House will reject this amendment to the Commons amendment. I do not want to be immodest in any way but, in fact, the Commons amendment is in substance and in detail the Bill which I introduced into this House three years ago and which was passed by a substantial majority. That was admitted by Mr. Cook in the House of Commons and by the Secretary of State for Scotland. It was exhaustively discussed on Second Reading, in Committee, and on Third Reading and your Lordships passed it with a very large majority.
I should like to say to your Lordships that in drafting that Bill I went to a great deal of trouble. I had the help of the Scottish Office, I had the help of the parliamentary draftsmen, I had the full support of the Law Officers both in Scotland and England and of the Lord Chancellor, then the noble and learned Lord, Lord Elwyn-Jones. We drafted a Bill which we thought carried out the main intentions of the Wolfenden Committee's Report which was to remove from the statute book for ever the fatal words "in private", which have done such damage and caused such misery to so many people for so many years.
I think this amendment to the amendment is not necessary because there is no need in Scots law for an English definition of privacy. Nor can I agree with the noble Earl, Lord Selkirk, that either orgies or sex in places open to the public are made lawful in this Bill.
The Earl of SELKIRK: My Lords, I was quoting an authority called Gay News.
Lord BOOTHBY: My Lords, I introduced my Bill for two reasons. First of all, I thought that it would be ridiculous to make a distinction on this subject between England and Wales, on the one hand, and Scotland, on the other; but, secondly and far more seriously, because

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the Lord Advocate of the day felt that he had publicly to announce that he did not intend to enforce a particular clause in a statute. That, I felt, as did many others, was bound sooner or later to bring the law itself into disrepute—and those who listened to the speech on that occasion of the noble and learned Lord, Lord Wilson of Langside, in his day a great Lord Advocate, are not likely to forget it.
My sole motive in the whole of this business which started many years ago—for it was I who persuaded the late Lord Kilmuir, then Home Secretary, to set up the Wolfenden Committee—was to remove from many of our most gifted citizens the constant fear of blackmail but, much more, of a criminal charge, for doing something which, although people may hold strong views about it and are entitled to do so, cannot be regarded, in my submission, by any stretch of the imagination as a crime against the state. Many of your Lordships may or may not agree with me, but I think that what consenting adults do in private is not a matter for Parliament unless they constitute a danger to the state of some kind.
The Commons, not for the first time in the last 20 years, have merely accepted the leadership of your Lordships in an important matter greatly to the benefit of the country. I ask your Lordships to accept the Commons amendment as it stands and to send the Bill back unamended to the other place. And in so doing I am only asking your Lordships to endorse the decision which you yourselves took by a very large majority three years ago.
The Earl of PERTH: My Lords, in rising to support the amendment of the noble and learned Lord, Lord Fraser of Tullybelton, and the noble Earl, Lord Selkirk, I think this is a subject where it is of the greatest importance that the law of England and Wales and the law of Scotland should be one and the same. We heard the noble Earl, Lord Selkirk, say that if this new clause is passed without the amendment to the amendment then there is more latitude in Scotland than in England on this subject; and this seems to me to be a highly unsatisfactory state of affairs. I hope that even the noble Lord, Lord Boothby, when he thinks further and
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realises that what we are trying to do is to bring the law into line in both countries, will not perhaps pursue the line he has been taking to date.
I have one other thing to say. There is not much one can say on this subject other than what has been said. But if Amendments Nos. 101A and 101B are passed, I intend, as a consequential amendment to the amendment to the Commons amendment, to move a manuscript amendment which is really a drafting amendment. In subsection (6)(b) of the new clause, we have at the moment:
"without the consent of any party to the act".
Undoubtedly, those words were used when it was visualised that there may be two or more people taking part. My manuscript amendment would read:
"without the consent of either party to the act"—
because what we are talking about at the moment is only two people being allowed as consenting adults. It is only a drafting and minor amendment and perhaps, if the Government are prepared to accept the amendments to the amendment, they would allow this also to pass without any difficulty.
4.29 p.m.
Lord DRUMALBYN: It seems to me that the sole justification for dealing with this matter in this way—that is to say, drafting as a clause into this Bill virtually the whole Act of 1967—can be that there is no difference between the two Acts. Otherwise, surely, it would be necessary to have this fully debated in this House whether or not it was debated three or four years ago. It would be most unusual for it not to be so.
My noble friends Lord Selkirk and Lord Perth have drawn attention to one point in the Bill where it may be that the Bill is going to be more permissive than the Act of 1967. I should have thought that in a case like this, when an English Act has been in force for some time, it would be appropriate to examine in detail the effects of that Act before proceeding to extend it to another part of this country. But if it is shown that there are no such adverse effects, and if the Bill can be brought as closely as possible into line with what is contained in the English statute, then, if that is the will of the House, we should have to be content.

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However, I would ask my noble friend to tell us in his reply exactly what the position is, not only so far as the Bill is concerned by the addition of these amendments, but also what is the state in England at the present time, and whether we are satisfied with the working of the Bill in England at the present time. It is only right that we should know how that has gone in relation to what it was intended to do before we adopt it in Scotland.
4.32 p.m.
Lord ROSS of MARNOCK: My Lords, what we have here is the incorporating into Scottish law of what is virtually a complete Act. This Bill started in this House a long time ago. It went through every stage in this House and I think that we can fairly say that we made a good job of it. We went through it very fully: Second Reading, Committee, Report and Third Reading. There were amendments all along the line. But this subject was never raised by any Member in this House, nor was a clause put down.
The Bill went to another place and had a Second Reading. It had a very lengthy Committee stage, but this subject was never raised. It was only on 22nd July—not all that long ago—that a new clause was put down which purported to incorporate the 1967 Act into Scottish law—a whole Act of Parliament. It was debated for two hours. I do not think that this is the right way to legislate in respect of an important piece of social legislation. Had there been a great public discussion in Scotland about it, I could have understood it. But, quite frankly, there has not and there has been no great demand for it.
There is something to be said for having the law in Scotland the same as the law in England. I have been a great defender in the past for Scotland dealing with its own affairs in its own Scottish Grand Committee and guiding the House of Commons, but that did not happen on this occasion. The result is that there has been almost an evasion of the close public scrutiny that is given in Committee stages here and in another place.
I was not a supporter of the 1967 Act. It may well be that the practice is something that is not so rife in Scotland, where our school system is very different
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and where there is no segregation of the sexes. From the age of five they are taught in the same schools and the same classes. So there is justification for a difference. We ask people why we must have this clause and they say: "We must bring the law into line—Scotland and England". I would be prepared to do that; but when I look at the clause it is not the same as the 1967 Act.
For that reason, I strongly support the noble and learned Lord, Lord Fraser of Tullybelton, in the amendments put forward. It is no good the noble Lord, Lord Boothby, saying that it should not be a crime. Let him read the clause. He will find it is still a crime in relation to the armed forces and in relation to certain circumstances in the merchant navy. He will also find that this Bill does not apply to Northern Ireland.
I have not heard any voice—either in this or the other House—suggesting that it should apply to Northern Ireland. There are far too many glib statements being made. I have even heard it said that the Church of Scotland is for it. The Church of Scotland, so far as I know, has never demanded any such change. The first thing we should do, if the argument is that the law of Scotland and of England should be the same, is to accept this amendment. That is the least action we can take.
Hitherto, this subject has been dealt by a Private Member's Bill and the Government have stood apart. But now it is being incorporated into a public measure, and the Government must accept some responsibility and give us some guidance in respect of it. I know that the Secretary of State for Scotland in another place regretted very much that this had been put forward. I think that he voted against it, as did other Scottish Ministers. I should like to hear the Government at least giving us a suggestion that we are not going to leap ahead in this gay mood with—
Lord MONSON: My Lords, before the noble Lord sits down, may I put one question to him? He contends that this matter has not been adequately debated, apart from two hours in the House of Commons. Is he aware that my noble friend Lord Boothby's Sexual Offences (Scotland) Bill was given a

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Second Reading on 10th May 1977 in this House by a majority of 125 to 27? That was a majority of almost five to one. That Bill was debated very fully and subsequently went through Committee and Report stages. I do not think it can be said that the matter has not been debated before.
Lord ROSS of MARNOCK: My Lords, it has certainly not been debated in this Parliament. I do not know how many people here today were one of the 150 who were present two years ago. I would not call that very representative.
4.38 p.m.
Lord CAMPBELL of CROY: My Lords, perhaps from this side I may follow the noble Lord who has just spoken. I took part in the debate three years ago on Lord Boothby's Bill. I was asked to do it from the Opposition Front Bench and therefore I recollect that Bill going through. I must point out to the noble Lord, Lord Boothby, that it was said at the time that there was no hope of his Bill going through Parliament and passing into law because it was a Private Member's Bill originating in this House, and of course it was not going to be taken on a controversial subject by a private Member in the other place first, which would have had to have happened, and he would have had to be in the first six in the annual ballot for Private Member's Bills.
The noble Lord, Lord Boothby, enabled us to have a discussion three years ago on this subject. My own feeling was that the vote that ended that discussion was a vote in principle for Scottish law being brought into the same situation as the law in England and Wales. But it was perfectly clear that that Private Member's Bill of the noble Lord, Lord Boothby, was never going to see the statute book at that time. It could not possibly have passed through the House of Commons as no time was going to be given for it.
Even if time had been given for it, it had no chance of getting through unless, as I say, it had been sponsored there first. That was the case of the Bill of the honourable Member, Mr. Abse. He was successful in the ballot and originated the Bill which became the 1967 Act for England and Wales. There was no
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question of that happening with the Bill in this House three years ago. It was more a question of time being available for discussion of the subject, rather than discussing the particular legislation that was likely to become law in Scotland. I share the views of the noble Lord, Lord Ross of Marnock, in that respect.
I would go further and say that this amendment appeared at the final stage in another place after the Bill had been all the way through this House, as the noble Lord, Lord Ross, and others have said. Then it had escaped the Scottish procedure in another place. The subject was not mentioned and therefore it was not brought up in the Scottish Grand Committee, where the Second Reading debate effectively took place. It did not get discussed in the Scottish Standing Committee on the Bill, which is where it would have been discussed in a Scottish context with Scottish Members of Parliament taking part. It finally appeared at the Report stage and then had that two hours' debate, so I do agree that it has not had full examination.
Until we hear what the Government have to say we cannot be certain—at least I certainly cannot, having had legal training—that what the noble and learned Lord, Lord Fraser of Tullybelton, is hoping for will be achieved by the amendments. I think that if what he is pressing for is achieved, and if this clause is brought into line with what is now the law in England and Wales, that would be an improvement. But I have sympathy with those who feel that this is the wrong way for a very important subject such as this—which has always been dealt with in Private Members' legislation—to be brought into the law of Scotland; namely, by way of a public Bill.
Lord SHACKLETON: My Lords, I had not intended to rise at this point, but I must complain about the procedure that we are following at the moment. We are discussing a limited amendment and we are now on to the substantive question. What some of us would like to know is whether this amendment actually is viable and improves the Bill. We look to the Minister to reply on that, and since these arguments have taken place and are in danger of creating prejudice, I am bound to say that some of them should be answered.

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The Bill of the noble Lord, Lord Boothby, went through this House and was discussed in immense detail. It was discussed in Committee, and it has been the practice in your Lordships' House to take any Bill that comes through and make it as complete as possible in the hope that in due course it may be picked up in another place. I really cannot accept the argument that this is something which has just been slipped in at the last moment. When the amendment was moved by the honourable Member for Edinburgh Central, he made it clear that he was doing so on Report stage because it raised important issues and therefore was not appropriate for a Committee Stage discussion. He put the arguments very strongly and I am bound to say that your Lordships, who have shown great initiative in these matters, ought not to allow a situation to continue in which the law exists in one way and is not enforced by the courts in Scotland.
If this is imperfect there may be a possibility of amending it later, but the other place, which had every opportunity of hearing the arguments of Law Officers and others, chose to accept it. The fact that it did not go through the Scottish procedure was a matter for the other place, and not for us. Therefore I would hope that we shall get a clear indication as to whether the amendment moved by the noble and learned Lord, Lord Fraser, improves the Bill and makes the clause more acceptable. I hope therefore that some of these arguments, which in my opinion have been advanced at the wrong time, will not be advanced when we come to the main amendment.
Lord McCLUSKEY: My Lords, may I from this Bench endorse what my noble friend has just said. We are dealing with a very limited amendment at the moment. I want to make certain remarks on the main argument, and I was hoping to do that on Amendment No. 101C, on the question of principle.
May I invite the noble Earl to rise at this stage and, by answering the points, bring to an end the debate on this limited matter? May I also ask him, when doing so, to take account of the fact that his right honourable friend the Secretary of State for Scotland, when asked about the form of this clause, said in another place on
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22nd July 1980, at column 309 of the Official Report:
"I make no criticism of the clause."
When further asked about that, he said:
"I did not say and I do not say that it is defective. I do not believe that it is defective."
He said that it had received the attention of the draftsmen.
I should like to hear from the noble Earl what he conceives to be the effect of the amendment proposed by the noble and learned Lord, Lord Fraser of Tullybelton. I would remind the House that that amendment does not provide any defintion of the words "in private". It merely prevents those words applying to the situation covered by paragraphs (a) and (b).
Lord WILSON of LANGSIDE: My Lords, in spite of what the noble and learned Lord, Lord McCluskey, has said, perhaps I might be permitted to make one short point. I am sure that all that can sensibly be said in support of these amendments has been said this afternoon, and I should not wish to presume to add to the wisdom which your Lordships have on this matter. However, in view of a passing reference by the noble Lord, Lord Boothby, to something that I said in the past, I felt it prudent to put on record that I would support this amendment. I agree with what has been said by the noble Earls, Lord Selkirk and Lord Perth, and by the noble Lord, Lord Ross.
Lord BOOTHBY: My Lords, I would hasten to say that I never suggested that. What I did say was that the noble and learned Lord made an admirable case for changing the law, in the light of the Lord Advocate's pronouncement that he did not intend to enforce it. I never suggested that the noble and learned Lord was in favour of this amendment; at least, if I did so, I certainly withdraw it.
Lord WILSON of LANGSIDE: My Lords, I was not complaining, but I thought that I should just put my view of the matter.
The Earl of MANSFIELD: My Lords, at this juncture I shall confine my remarks—few that they are going to be—to the amendment of the noble and learned Lord, Lord Fraser of Tullybelton, because it is really his amendment that the House is

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discussing, although we have gone down a number of byways as to the generality of the Commons amendment and as to an amendment which the noble Earl, Lord Perth, thinks would improve the sense of the amendment, but which I am advised would not.
As has already been said, the Government of the day—and indeed this Government already, in another place—do not express a view on the merits of the issue that is sought to be dealt with in the form of the amendment. Such matters are traditionally left to a free vote and, notwithstanding the somewhat unfortunate manner in which this clause was added to the Bill at a very late stage so as certainly to preclude consultation and certainly to preclude reasoned debate, the Government feel that they must abide by this tradition in this case.
On the amendment of the noble and learned Lord, Lord Fraser of Tullybelton, I think that there are perhaps two or three things which should be said. If one reads the Official Report of the other place, there is no doubt that what Mr. Cook was seeking to do was to bring the law of Scotland into line with that of England. Certainly, nothing that he said, nor indeed anything that his supporters said, in those proceedings sought to extend the law of Scotland beyond that of England. That is the first point.
The second matter is that the noble and learned Lord, Lord McCluskey, pointed out a couple of passages in the Official Report in which he claimed that my right honourable friend the Secretary of State did not say in effect that the amendment was defective. In a formal sense, it is not defective; but that is not quite the end of the story, which led to the reason for the noble and learned Lord, Lord Fraser, tabling his amendment. I am not going to say anything at this stage about the generally adverse reaction that there has been in Scotland to the inclusion of this measure, although when the Motion of my noble friend Lord Lauderdale falls to be debated, if it is, then I shall have something to say. However, in the context of the amendment that we are now discussing, it is fair to point out that there was very considerable concern in Scotland at the failure in effect of the amendment to define the words "in private".
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The amendment which has now been moved by the noble and learned Lord highlights the worry felt by many people, who, while they were not totally opposed to the clause, nevertheless felt apprehensive about the omission of the safeguards which, as at least some of your Lordships are aware, are in the corresponding section of the Sexual Offences Act 1967, applying to England; that is, Section 1(2) of that Act. So, in the limited sphere of this debate, it is the Government's view, therefore, that this amendment would do something to allay the concern about this point as it concerns privacy, and, so far as the Government are concerned on this point, we would be content if the noble and learned Lord's amendment were to commend itself to your Lordships' House.
Lord FRASER of TULLYBELTON: My Lords, may I reply very briefly? I understand that nearly everybody who has spoken seems to approve of my amendment as being an improvement of the clause, if the clause is approved at all. A good deal of discussion has ranged rather more widely than I had originally expected. The only criticism, as I understood it, of my amendment came from the noble Lord, Lord Boothby, who said that it was not necessary in Scotland. I really cannot understand that argument, because it seems to me that it is easy to imagine circumstances in which it might be doubtful whether a particular act was in private or not.
The obvious one that occurs to me is a bedroom shared by three or four men, one of them asleep in one corner of the the room and the other two engaging in a homosexual act. It is obviously open to debate whether that would be in private or not, and this amendment would dispose of that argument which seems to me clearly a desirable thing to do. For that very modest kind of reason, and also because it brings the law of Scotland on this point exactly into line with the law of England—which on this point, I think, is desirable—I commend my amendment.
The LORD CHANCELLOR (Lord Hailsham of Saint Marylebone): My Lords, the Question is—
Lord BOOTHBY: My Lords, before the noble and learned Lord puts the Question—
The LORD CHANCELLOR: My Lords, the noble Lord has spoken. The Question is that the said amendment be agreed to.
On Question, amendment agreed to.

CIVIL AVIATION APPEALS
4.53 p.m.
Lord TREFGARNE: My Lords, I hope that it is to your Lordships' convenience that I intervene now, with your Lordships approval, to make a Statement concerning air transport licensing appeals. My right honourable friend the Secretary of State for Trade has just taken decisions on four appeals from airlines against licensing decisions of the Civil Aviation Authority. The first was a request from British Caledonian to give them exclusive licences to operate out of Gatwick to several destinations which they, but not British Airways, already served. In responding to British Caledonian's appeal submission to the Secretary of State, the Civil Aviation Authority accepted that it had acted inconsistently and agreed with the appellant that its own decision should be reversed. British Airways made no representation on the appeal and, accordingly, my right honourable friend has decided to allow it.
The second case concerned British Caledonian's application for 20 routes from Gatwick to the continent—their "miniprix" services. The CAA granted licences for six destinations but felt unable to grant the rest. The airline appealed in respect of five routes. Under the statute my right honourable friend has to pay regard to the likely outcome of the negotiations which would need to take place with the foreign countries concerned. The authority came to their assessment of the likely outcome of the negotiations with the other European Governments, in terms of the anticipated effect on the United Kingdom's aviation interests as a whole. Having carefully considered the evidence, my right honourable friend decided there were no grounds for disagreeing with the authority's assessment.
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The third case is Laker Airways' appeal against the CAA's decision on their application for routes to Miami. The CAA granted a licence to operate from Gatwick, but not from Manchester or Prestwick. The bilateral Agreement with the United States allows us to designate two United Kingdom airlines for London-Miami and one each for Prestwick and Manchester to Miami, so there is no need for further international negotiations.
The CAA thought that to allow Laker to fly from Manchester and Prestwick would harm the development of services from London. My right honourable friend considered this point very carefully. He appreciates the authority's reluctance on this score, but does not believe that in this case the overall balance of advantage lies in denying Laker, and his potential passengers, the benefits of operating from Manchester and Prestwick. He also considered that the authority paid insufficient attention to the important airports policy implications; in particular, the advantages of developing services outside the London area. Accordingly, the Secretary of State decided to allow Laker's appeal in this case. My right honourable friend attaches considerable importance to developing regional services and he hopes and expects that the Laker services will benefit the North of England and Scotland.
The fourth case concerns Laker's appeal in respect of 600 or so European routes. The key issues in this case were: whether our domestic licensing system and the series of bilateral agreements with foreign governments are incompatible with the provisions of the Treaty of Rome—rendering the whole of the regulatory machine redundant; and whether the applicant provided sufficient evidence to satisfy the economic requirements of the legislation.
On the first point, Laker argued strongly that the whole system is incompatible with the Treaty of Rome. The Government's legal opinion is that there is no provision of Community law which overrides the regulatory systems of member Governments, though if Sir Freddie wants to test his interpretation of the Treaty of Rome in the European Court he is free to do so. Under the Civil Aviation Act 1971, my right honourable friend also had to examine whether a proper economic assessment has been made for each of

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the many routes involved. In the light of these considerations, he has decided that he cannot allow the present appeal, but he agreed with the CAA's suggestion that, if Sir Freddie Laker wishes to reapply for those of the European routes which are of particular interest to him, the Authority will consider them with care.
Formal letters giving the Secretary of State's decisions on these four cases are being sent to the Civil Aviation Authority today, with copies to the appellants and the parties to each appeal.
My Lords, that concludes the Statement.
4.57 p.m.
Lord PONSONBY of SHULBREDE: My Lords, may I thank the noble Lord for making that Statement, which records decisions taken by the Secretary of State on four appeals by airlines against decisions of the Civil Aviation Authority. One of those appeals was allowed with the consent of the Civil Aviation Authority, one was allowed against the judgment of the Civil Aviation Authority, and in the other two cases the Secretary of State agreed with the decisions of the Civil Aviation Authority.
The effect of these decisions by the Secretary of State is further to undermine the authority of the Civil Aviation Authority and to strengthen the hands of the noble Lord, Lord Boyd-Carpenter, who I am sorry not to see in his place this afternoon, and my noble friend Lord Beswick, who so eloquently spoke to an amendment to the Civil Aviation Bill last Thursday, seeking to have a proper appeal procedure established, with reconsideration by the Civil Aviation Authority and with the Secretary of State intervening only in really exceptional cases.
As I see it, these are not really exceptional cases. They are cases where it is a matter of professional judgment whether the decision should go one way or the other. The professionals at the Civil Aviation Authority have taken a considered decision and no exceptional reasons should arise to reverse those decisions. There is a danger, if the decisions of the Civil Aviation Authority are overruled like this, that the Civil Aviation Authority will lose authority and airlines will regard the most important
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part of the application procedure as the appeal, so the whole procedure, as it operates at present, will tend to fall into disrepute. This should not be so. There should not be two bites at the same cherry. No doubt we shall return to this on Thursday during the Report stage of the Civil Aviation Bill.
Viscount SIMON: My Lords, from these Benches I should also like to thank the noble Lord for making this statement. It would be difficult to the point of impossibility to speak intelligently about the decisions of the Secretary of State without having studied the arguments which were placed before the Civil Aviation Authority in the first place and the Secretary of State on appeal.
I have only three rather general comments to make. I agree with the noble Lord, Lord Ponsonby of Shulbrede, that this indicates the undesirability of having an appeal to the Secretary of State instead of having an appeal procedure to a more independent body. But that, as he says, is a matter which can be discussed further when the Civil Aviation Bill comes back to the House on Report.
I was interested to see in the first case that the Secretary of State called attention to some inconsistency in the decisions of the Civil Aviation Authority, with which they agreed. I have been informed—I do not know whether this is right—that the practice has been for the Civil Aviation Authority to share applications, very often with a tribunal of only one member, sometimes two. It occurs to me that the possibility of inconsistency would be reduced if there were always a tribunal of three members so that almost certainly one of them would be able to recall a comparable decision that had been made before, and so tend to avoid these inconsistencies.
My last point is that I was very pleased to see the decision of the Secretary of State in regard to Laker flying from Manchester and Prestwick. I am sure that any effort to spread the load of the overseas services among the other airports is to be commended.
Lord TREFGARNE: My Lords, I am grateful to the noble Lords for their reception of this statement. I am sorry that it was not all that the noble Lord,

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Lord Ponsonby of Shulbrede, would have wished. He was particularly critical of what he suggested was the undermining of the authority of the Civil Aviation Authority. I can assure the noble Lord that decisions of the authority are never lightly overturned. However, the appeal system has been set up under the 1971 Act and the subsequent regulations and it is there to be used. There is no point in having an appeals system if appeals are never ever to be granted.
The fact is that any authority can make a mistake. It is also possible for reasonable people to reach different judgments on matters of policy—for example, over the importance of developing regional airports. It is entirely proper, I would suggest, for the Secertary of State, carrying out his quasi-judicial role in these matters when reviewing decisions in response to an appeal, to take a different view from the authority.
In one of these cases—British Caledonian's application for exclusive licences from Gatwick for several destinations—the Civil Aviation Authority themselves admitted that their original decision was inconsistent with some of their earlier decisions and accepted that the appeal should be granted. In another case—aker's routes from Manchester and Prestwick to Miami, to which the noble Viscount, Lord Simon, referred—my right honourable friend took a different view from the Civil Aviation Authority on two issues: first about the preference to be given to operators with services from London to Miami and, second, about the importance of the development of regional airports.
The noble Viscount, Lord Simon, also raised the question of the numbers of Civil Aviation Authority members who hear these original applications. The fact is that under the present law a minimum of one member of the authority is required. We have no evidence to suggest that this is not working satisfactorily. We do not detect any inconsistencies flowing from that particular situation. On the other hand, it is fair to tell the noble Viscount that this is a matter which we are considering. The Commission on Tribunals, I think it is called, has also made some observations upon the position at the Civil Aviation Authority.
Lord BESWICK: My Lords, may I thank the noble Lord for making this Statement this afternoon, especially since he told me on 16th October during the Committee stage that it was unnecessary to make such statements. He turned down my amendment which would have provided for such a statement to be made.
The noble Lord also said to me on 16th October that the Secretary of State would not vary decisions lightly, but I understand from what he has just said that one of the decisions taken was on a balance of advantages. May I ask him whether this is an exceptional case? Would he say that this decision was taken lightly or whether it was taken just on a balance of advantages? When the noble Lord was answering my amendment he also said that only on a few occasions within nine years has the Secretary of State reversed decisions of the Civil Aviation Authority. May I ask him whether, with this batch of reversals, the quota for the next nine years has now been exhausted?
Lord TREFGARNE: My Lords, I do not think that the noble Lord expects me to answer the slightly flippant last supplementary, if I may so call it. However, I confirm that these matters are considered with the very greatest care, and I will say again, as I said to the noble Lord last week, that decisions of the authority are overturned or varied only after the most exhaustive consideration of all the facts. That indeed was what happened on this occasion. It is still the case that the number of appeals which have been allowed in the nine years or so since the passage of the 1971 Act is very small indeed, and that situation will continue.

CRIMINAL JUSTICE (SCOTLAND) BILL [H.L.]
5.7 p.m.
Consideration of Commons Amendments resumed.
The DEPUTY SPEAKER (Lord Nugent of Guildford): Amendment No. 101B. Lord Fraser of Tullybelton?
101B In subsection (6)(a) leave out ("in public") and insert ("otherwise than in private").
The Earl of PERTH: My Lords, I think it is in order for me to say that the manuscript amendment which I have moved, which is consequential upon Amendment No. 101A, should be taken first.
The DEPUTY SPEAKER: My Lords, the manuscript amendment of Lord Perth is numbered 101BA, and it is in these terms:
"In subsection (6)(b) leave out ("any party") and insert ("both parties")".
—(The Earl of Perth.)
Lord DRUMALBYN: My Lords, has not this amendment already fallen?
Several noble Lords: Order, order!
Lord FRASER of TULLYBELTON: My Lords, as I understood the position, Amendment No. 101A was disposed of a few minutes ago and I was about to move Amendment No. 101B.
The Earl of PERTH: My Lords, I am sorry if this is a muddle. I gave a manuscript amendment to be put on the table after Amendment No. 101A if Amendment No. 101A was accepted by the Government, and that is what has happened. Mine is a consequential amendment.
Lord McCLUSKEY: My Lords, if the noble Earl will look at the Marshalled List he will see that the next amendment to be taken is Amendment No. 101B standing in the name of the noble Lord, Lord Fraser of Tullybelton. Thereafter the House can consider Amendment No. 101BA standing in the name of the Earl of Perth.
The Earl of PERTH: I apologise to the House.
Lord FRASER of TULLYBELTON: My Lords, I have already explained that Amendment No. 101B is consequential upon No. 101A. I beg to move.
Moved, That Amendment No. 101 B as an amendment to the Commons Amendment No. 101 be agreed to.—(Lord Fraser of Tullybelton.)
On Question, Motion agreed to.

LORDS MANUSCRIPT AMENDMENT AS AN AMENDMENT TO COMMONS AMENDMENT No. 101
101BA In subsection (6)(b) leave out ("any party") and insert ("both parties").
5.9 p.m.
The Earl of PERTH: We now come to the manuscript amendment which I mentioned when we were dealing with Amendment No. 101A. This is purely a consequential amendment. If one looks at subsection (6)(b) one finds the words
"without the consent of any party to the act".
In Amendment No. 101A we have ruled out the possibility that more than two persons can take part. "Any party" seems to me to visualise that there would be more than two, whereas our amendment lays it down that there should not be more than two. Therefore, the proposal is that instead of the words "any party" we should insert the words "both parties" in order to make the position quite clear. If, however, the noble Earl, Lord Mansfield says that there is no need for that amendment, certainly I shall not press it. I beg to move.
Moved, That Amendment No. 101BA as an amendment to Commons Amendment No. 101 be agreed to.—(The Earl of Perth.)
The DEPUTY SPEAKER: My Lords, for the greater clarity of those Members who do not have it before them I will read Amendment No. 101BA again. It is that in subsection (6)(b) the words "any party" be left out and the words "both parties" be inserted. The question is that Amendment No. 101BA be agreed to.
The Earl of MANSFIELD: My Lords, perhaps I could just say for the record, since I disagreed with the form of wording of the noble Earl's original consequential amendment, that this one seems to be much more sensible and if it commends itself to the House then the Government would not complain.
On Question, Motion agreed to.
On Question, Whether the Commons Amendment No. 101, as amended, be agreed to?
The Earl of LAUDERDALE: My Lords, a number of your Lordships in speaking to the last amendments, with

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which I personally sympathised, felt bound to reserve their position, directly or indirectly, on the general issue of this new clause and in discussing it one is bound of course to go over a certain amount of old ground. Among the smaller duties of life, I hardly know any more important than not praising where praise is not due and seldom has a Government spokesman damned a cause with such faint praise as my noble and learned friend Lord Mansfield did on the amendment. He described the manner of its introduction as unfortunate. He said it was introduced at a very late stage. He said, with all the authority of his office, that it was introduced at a time which precluded consultation, and he also said that it precluded debate. He might have added, what my researches have shown, that when the matter was voted on in another place on a free vote, no fewer than eight Ministers of the Government voted against it, and even though the Scottish Office continues to swell it does not as yet have eight Ministers; and at least one or two from outside the Scottish Office joined in on what I will call "the Government side" on that occasion. I believe that had the debate occurred with a full House instead of being decimated by a garden party, as it was, the Opposition would have been a good deal stronger.
The noble Lord, Lord Ross of Marnock, with all his prestige and standing as a former respected, if controversial, Secretary of State, said that in effect this "pops" into a statute the whole of another Bill "pops it in", that was his phrase. He again stressed that this was done on not more than two hours' debate; he again stressed that it evaded close public scrutiny and that in any case it does not really reproduce the 1967 Act. He has asked my noble friend what is the Government's attitude in general to this, and we are still looking forward to hearing; but after what we have already heard I cannot think that it will be very enthusiastic.
The noble Lord, Lord Ross of Marnock, said that if we have to have this clause he will support the amendment, and I think many people took that view. But it might well be that he and others feel, with me, that it would be better to throw this new clause out altogether so that on another occasion it may be duly considered in the light of proper public discussion in Scot-
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land and still more proper consultation through the channels that are familiar.
The noble Lord, Lord Ross of Marnock, also pointed out what had not occurred to me until he said it, that not only did this projected new clause escape the ordinary Committee stage of the Bill but it was not even exposed to the rigours of discussion in either the Scottish Grand Committee or the Scottish Standing Committee—This for a whole new Bill which is to affect the law of Scotland. It is a clause which is long, which plumbs unknown depths of legal complexity and I think it is only fair—without, of course, wishing any offence to Members of another place—to say that it was really smuggled in without proper consideration. The noble Lord, Lord Ross, said "popped in"; I say "smuggled in". It was never even listed among the Bill's original objects; it was never even suggested on Second Reading. It was tabled with the minimum possible notice of only a few days. Of course its promoters said that the reason why it was done in this way was because anything so important should be kept for the Floor of the Whole House. Well, my Lords, if you believe that you will believe anything, because there was the Grand Committee available and it could have been widely discussed there by Scottish MPs.
I think one has to say that the fact is that the promoters knew that this was controversial and dangerous and they really funked the Committee stage and went on to say what is to my mind quite incredible—and I quote:
"This new clause is already acceptable to their Lordships."
Presumably that was a reference to Lord Boothby's previous Bill, but it does not read like that in the Hansard text and certainly this matter has not been discussed in this House in this Parliament in that way. At the least I suggest that there was something approaching a breach of parliamentary courtesy—I say "approaching" because I do not want to offend the other place but it was also something that came very close to a misstatement and may I say that lies are as communicative as fleas.
I suspect that behind the sincere intentions of Mr. Cook there were other intentions that may have been less sincere

1835
and more obscure. It might even be described as a calculated con trick because the case was that this was to bring Scots law into line with the English. We know from the last debate on the amendment tabled by the noble Lord, Lord Fraser of Tullybelton, that it did not do so. But supposing the promoters had got away with this and supposing therefore that this "orgy law", as Gay News called it, which meant that things done in private could be done in a whole roomful of people—a room as big as the Albert Hall, if necessary—then the next proposition would have been to bring English law down to the level of Scots law. That would have been stage three, but mercifully we have been saved that, thanks to the amendment moved by the noble Lord, Lord Fraser, which I regard as a fail-safe device if we cannot get rid of this new clause altogether. The whole story is murky and I never wonder to see men wicked but in Jonathan Swift's words I do often wonder to see them unashamed.
Lord ELWYN-JONES: My Lords, if I may intervene, I seem to have heard the noble Earl making what were more than offensive remarks about a Member of another place. He accused him of "a con trick"; I did not think that was customary in the relationship between the two Houses.
The Earl of LAUDERDALE: My Lords, I am much obliged to the noble and learned Lord for bringing his invariable courtesy and charm to my correction. No, I was not saying that Mr. Cook was guilty of these things but that I suspected—and do suspect—that those who were promoting it behind him may have had very dubious purposes. I am taking great care not to say anything that could be taken as damaging to another place.
Lord ELWYN-JONES: My Lords, I should have thought the noble Earl had really added insult to injury by extending the limitation of his insults previously to the generality of Members in another place.
The Earl of LAUDERDALE: My Lords, not even to the generality of Members; those who are promoting the
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matter. In fact I shall come presently to some of the pressure groups who are pressing this. I am not referring at all to Members of another place but if it is the wish of your Lordships I will very gladly withdraw what I have said.
Lord McCLUSKEY: My Lords, when the noble Earl is considering his position will he bear in mind that the right honourable Secretary of State for Scotland, in col. 390, informed the House—I quote what he said of this particular clause:
"It is merely a carbon copy of an English Act passed some time ago."
The noble Earl can hardly suggest that Mr. Robert Cook misled the other place into thinking that the law was being brought into line with the law of England when the Secretary of State for Scotland assured the House that the Bill then before the House was a carbon copy of the English Act.
The Earl of LAUDERDALE: I am much obliged to the noble Lord, Lord McCluskey, for coming to my assistance. As a matter of fact, the Secretary of State said something else that was not quite accurate; he said if the Bill came back to our House we could either accept it or reject it and not amend it, which was incorrect. As a matter of fact the new clause remains dangerous because it still allows under-24s to claim that their partners seemed to be more than 21. It also limits Scottish prison sentences to two years against 10 in the South. Therefore, in both these respects I submit that it is not in fact the carbon copy which was claimed. Perhaps I have said enough on that score.
All I would like to do further is to make a general point, that even the most primitive societies, let alone the most civilised, deny that the right to sexual gratification is absolute; they ensure, all of them, that the law is supportive of the social institution of marriage. Surely we will agree that morality cannot be legislated but behaviour can be regulated, and judicial decrees may not change the heart but they can restrain the heartless, so that even base men will disown from shame what from folly they crave.
We are talking about a disagreeable subject and there are those who would

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rather we did not discuss it at all. But this practice is gratification for gratification's sake; socially it is without purpose; it produces no offspring; it demands no special commitment to the partner; it is especially tolerant of promiscuity. And since those who advocate this behaviour cannot multiply by procreation are they therefore to be allowed to do so by recruitment, by public display, advertising, by soliciting the young?
There is nothing to suggest that Scottish opinion at large is seeking such a change in the Scottish law. Indeed, we are told the contrary. Most of us are well content with the many differences that do exist. I believe it is the case, for example, that, suppose somebody tries to commit suicide by drowning in the Tweed, if he is pulled out on the English side he is sent to prison, and if he is pulled out on the Scottish side they dry his clothes and send him home.
A Noble Lord: Not true.
The Earl of LAUDERDALE: When the present clause was introduced—I forebear to use the word I used earlier which caused such disturbance on the other side—after only two or three days on the Order Paper, the Scottish public had no time to react. So our land of Calvin, oatcakes and sulphur went unheard. If we cannot be decent let us at least try to be graceful; if we cannot be moral let us try to avoid being vulgar. To oppose this change is not to ask for a witch-hunt for police snooping or for victimisation; it is simply to ask for a declaratory law to remain in force about right and wrong sexual behaviour, that this should stay on the statute book as an ethical pointer for the community at large. In those terms, I beg to move the Motion standing in my name.
Moved, That this House doth disagree with the Commons in their Amendment No. 101, as amended.—(The Earl of Lauderdale.)
Lord GALPERN: I should like to support the noble Earl in his excellent opposition to the proposed addition after Clause 77. What has puzzled me throughout the whole of this debate is when the noble Lord, Lord Boothby, said "Let us get rid of it this afternoon". We will
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not get rid of it this afternoon. I would not be surprised if the noble Lord, Lord Boothby, would be one of the agents who would not let this rest, because he moved in 1977 an amendment to lower the age to 18, and from 18 we will then go to 16, and probably end up at the age of puberty before we are finished. We still have even from that angle the position of Northern Ireland, which as recently as 1979 refused to alter or reform the law on homosexuality. A Northern Ireland subject took a case to the European Court on Human Rights, and it was dismissed because of the fact that although he proclaimed himself to be a homosexual he had not been charged with the offence. That seems to be one of the arguments in regard to the alignment of English and Scottish law on this subject. We have this Act which creates a criminal offence, but it has never been exercised. What is wrong with that? The Scottish people have not suffered because of the fact that we are not in line with the English law at the present time. If successive Lord Advocates decide they are not prepared to bring someone who is guilty of a homosexual act to justice or subject him to criminal proceedings, nothing has happened; they are no worse off in Scotland. Certainly the Scottish people will not thank this House if your Lordships carry this particular clause, the addition to Clause 77.
I am guided in this matter by two opinions. Let me interpolate here that we have had no statistics this afternoon of any kind, but I will quote these statistics which have had a great influence on my opinion in this matter. On 10th May 1966 the late Lord Kilmuir said that during his experience as Home Secretary out of 96 cases in Britain for homosexual offences that were reported to him only 15 were cases of genuine inverts, and the others included those who committed the act from motives of sensationalism or for money or for reasons of that kind. That is the first opinion. The other is the opinion of the Wolfenden people themselves. The Wolfenden Report admitted that the passing of the English Act when it was passed would lead to an increase in homosexual practices and activities; they admitted it. If I were to cite a third opinion it would be that of the late James Adair, one of our best known procurator fiscals in Glasgow, who pre-

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sented a minority report. He argued strongly for exclusion of Scotland from any proposal to bring it into line with England.
We have heard that two hours were devoted to it; it was not even two hours; exactly 100 minutes were devoted to this clause. I support the noble Earl, Lord Lauderdale, that it was slipped in—I go further and say deliberately slipped in—at that stage by Mr. Cook in another place because the purpose was not to give it adequate discussion. This is a matter, as the noble Lord, Lord Ross, has pointed out, which was the subject of an Act as far as English practice is concerned, but the Scottish people were denied the opportunity of studying in depth the whole of the proposal in this new clause and the effect it would have upon the morality of the people in Scotland. Surely they ought not to be denied that opportunity by this slick method of putting it through.
Therefore, when we come to consider the matter from the angle of what we are doing should we not turn our attention, as we have done with alcoholics, to engaging in more research into the causation of honosexual practices or homosexual indulgence. Surely research, which I think is grossly inadequate if there is any going on at the present time, should be directed, as we have spent millions of pounds on trying to help alcoholics, to some medical effort to relieve these people of what their indulgences are and what their practices are. Nevertheless, we will still have people saying that we should have it in line with England, that we should align the Scottish law with the practice of English law. We have dozens and dozens of Scottish laws and Acts that do not apply to England and they are not in line with England. There is an excellent one I could suggest to the English legal practitioners. Our excellent criminal verdict of "Not proven" could usefully be adopted, but we do not try to impose that on them. It would be a very useful contribution indeed to legal practice if we tried that one.
This matter has been argued so much on the English basis but never on the Scottish basis, and perhaps I will get an answer to the question I am going to put. If we pass this addition to Clause 77 are we or are we not legalising sodomy
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carried out by two homosexuals in a private place? My view is that we are. For hundreds of years we have operated against sodomy but now we are going to legalise that very act. As we have already had explained to us, the Secretary of State for Scotland and Mr. Rifkind and Mr. Alec Fletcher have the pulse of the views of the people in Scotland. They know far more about what is going on, what is right and what we ought to do. Each one of them trooped into the Lobby and voted against the Bill, together with the other Ministers who have been mentioned. Therefore I think we should follow the excellent lead in this particular field given to us by the Members of the Commons when this came before the House of Commons.
Lord FERRIER: My Lords, I had not intended to speak for long, but I find myself involved in this under the references by the noble Lord, Lord Boothby, to his Bill in 1977. He gave some figures; I think he mentioned 127 votes to 25. That was not on the Bill.
Lord BOOTHBY: My Lords, I did not give that at all.
Lord FERRIER: My Lords, it was on an amendment moved by me. On that occasion I moved that,
"in view of the present proposals for a Scottish Assembly now before Parliament and of the subject matter of the Scottish Bill this House considers its introduction inappropriate and untimely and declines to give the Bill a Second Reading".
That was rejected by the House, but I took no part in the subsequent—
Lord BOOTHBY: My Lords, if I may interrupt my noble friend, I should like to say that I did not give those figures. They were given by a member of the Opposition.
Lord MONSON: It was I, my Lords.
Lord FERRIER: I beg the noble Lord's pardon.
Lord GALPERN: My Lords, I should like to repeat that I quoted what the late Lord Kilmuir said in this House on 10th May 1966. Is that what the noble Lord referred to?
Lord FERRIER: My Lords, I did not take part in the Committee stage of the Bill because it was manifest at that time that not only were we possibly going to have a Scottish Assembly where this matter could have been properly discussed, in Scotland—which has not been done—but there was no chance of its ever reaching the statute book unless, as the noble Lord, Lord Campbell of Croy, said, some Private Member had been able to pick it up. With those remarks, I feel that I want to go on to support my noble friend Lord Lauderdale. I am reinforced in that feeling by the speech just made by the noble Lord, Lord Galpern. To my mind there is no doubt that the people of Scotland as a whole, if they even know of this clause in the Bill, would regard it as a "swizz". It has been got in by some sort of very successful manoeuvre and I feel it is up to your Lordships to see that that does not carry weight. The noble Lord, Lord Campbell of Croy, made that point, as did the noble Lord, Lord Ross of Marnock.
I feel that on that ground alone we should reject this amendment and accept the suggestion of the noble Lord, Lord Lauderdale. I have said before, and I say again, that we in this House sometimes have a wider range of understanding of people than others have. I support this Motion because the decision of the House of Commons, obtained as it was, was obtained, as I think the noble Lord, Lord Ross, pointed out, without even reference to the Scottish Grand Committee. Those of us who opposed the Scotland Bill have said, "What's wrong with the Scottish Grand Committee? Isn't that the proper place?" This was not discussed in it at all. The noble Lord, Lord Galpern, referred to the Wolfenden Committee. I did not quite catch whether he referred also to the minority minute of the late Mr. Adair. To my mind that was the real root and answer to the problem we have to face today. If one agrees with Mr. Adair, then this offence is a crime, and law or no law, public or private, male or female, compassionate or otherwise, the Scottish people as a whole dislike and despise homosexual behaviour.
I suggest that we should let the Scottish statute stand, at least until the people of Scotland have had time to thresh it out for themselves. My wife, who is much
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more easy going than I am, is prepared to agree with me in the matter but she complains bitterly that these wretched people have turned an ancient, kindly, happy Saxon adjective into a dirty word. What are we now going to call the Gaiety Theatre? I leave it to your Lordships.
5.36 p.m.
Lord McCLUSKEY: My Lords, in speaking from this position I speak simply for myself and not on behalf of the official Opposition. I want to make one or two points that I do not think have been properly made in the discussion which your Lordships have heard this afternoon. First of all, there has been a considerable amount of criticism, some of it happily withdrawn, of the sponsors of this clause in another place, and in particular of the decision to introduce the new clause at the Report stage of the Bill in another place. It was not the fault of Mr. Cook that this Criminal Justice Bill was introduced into this House first, rather than into the other place. He told the House—at column 317—and those who have read the Commons proceedings must be aware of this—that when the Bill came to the Commons he had had discussions with many honourable Members about whether it would be more appropriate to raise this matter on Committee or at Report. He also informed the House that he had consulted one of the Ministers on the team handling the Bill and it was the unanimous view of those whom he consulted, including the Minister, that it would be more appropriate to raise the issue on the floor of the House. So I utterly reject the criticism of Mr. Robin Cook and the sponsors which has been put forward this afternoon by several of your Lordships.
Let me turn, if I may, to the merits of the clause. Those who attended to the first Question that was asked in the House this afternoon will be well aware of the fact that it is the Lord Advocate, and he alone, who decides whether or not there should be a prosecution in Scotland. In relation to this matter of homosexual acts between consenting adults in private, four successive Lords Advocate have told Parliament that they will not prosecute in respect of such activities carried out by adult males in private and with the consent of those taking part. In my submission, it is quite wrong as a matter of constitutional principle that such

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activities, if criminal, are never prosecuted simply because the Lord Advocate so decides. If the Lord Advocate is not to treat such activity as criminal then Parliament should remove that offence from the calendar of crimes and offences.
Lord FERRIER: My Lords, am I not right in saying that the reason they do not prosecute is that in Scottish law evidence requires corroboration and they cannot get it?
5.40 p.m.
Lord McCLUSKEY: My Lords, we prosecute many rape crimes in Scotland without the evidence of more than one person who was present. There are many other signs and circumstantial pieces of evidence which could prove the crime; it is perfectly easy. In Scotland we do prosecute sodomy between a male adult and a male who is not adult. So, where the evidence is there, we can and do prosecute, but the Lord Advocate does not prosecute in the case of consenting male adults—that is to say, those over the age of 21—committing the activities in private.
Lord FOOT: My Lords, it is a fact, is it not?—and the noble and learned Lord will be able to tell us—that over the years, ever since the 1967 Act was passed, successive Lord Advocates have given as the reason for not authorising prosecutions of consenting adults in Scotland for acts committed in private, the view that they are not prepared to take action which would be contrary to what has since that time been the law of England. They have not given as a reason for their failure to prosecute the fact that they cannot get the evidence or the corroboration.
Lord McCLUSKEY: My Lords, I am obliged to the noble Lord, I think that that is so. I am more concerned with the fact that adults who choose to engage in homosexual activities in private in Scotland know that they will not be prosecuted. It is constitutionally absurd that they should be committing a crime and that the public prosecutor who prosecutes alone in the public interest, should say, "I will ignore the commission of this crime". That is what happens, and logic demands that the law ought to be brought in line
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with the practice of successive Lord Advocates of each party. So, I believe that this matter ought to be regulated.
We have been told today, and on other occasions, that this is not the way to do it and that it should not be inserted into the Bill like this at this stage. But what is the way to do it? Apparently it ought to be done by a measure introduced by a private Member. We know that in another place in order to have any chance of putting through a Bill of this kind, one must be first, second or third in the ballot for Private Members' Bills. What then are the prospects that, out of the, I think, 635 Members, in another place, one of them will be a Scot, that he will be at the top, or very near the top, of the list, and that he will thus have an opportunity to bring in a measure of this kind if he chose to espouse it? The chances are practically nil. The Government say that they will not sponsor this kind of legislation, and that it ought to be done by Private Members. So, if it is not to be done in this way, when on earth would it be done, and when would the law be brought into line with the practice? The answer is that it might take decades, and we would then be left with the situation that Lord Advocate after Lord Advocate would be obliged to go on saying, "Crimes are being committed according to the law of Scotland every day in different parts of Scotland, but I chose to ignore them".
Lord GALPERN: My Lords, is it not the case that the noble Lord, Lord Boothby, introduced a Bill in this House?
Lord McCLUSKEY: Yes, my Lords, but we were assured by the noble Lord, Lord Campbell of Croy, that this House was able to treat that Bill as an occasion for a gentlemanly discussion because everybody knew that it had not the slightest prospect of passing through another place. That is exactly the point that I am making.
Lord ROSS of MARNOCK: My Lords, my noble and learned friend may be acquainted with the proceedings in this House, but I do not think that he is very well acquainted with the proceedings in another place. There are such things as Ten Minute Rule Bills, as well as the ordinary proceedings of the ballot. There is the procedure of the Private

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Member's Bill coming from this House. I do not know whether he knows it, but a purely Scottish Private Member's Bill has far more chance than any other of being passed in another place because it can be sent to the Scottish Standing Committee. I have known five Private Member's Bills pass in one day through that committee.
Lord McCLUSKEY: My Lords, of course I bow to my noble friend's knowledge of the procedure of the other place, although mutterings close to me from other former Members suggest to me that a Bill of this kind has very little chance of seeing the light of day and passing through another place under the procedures to which my noble friend has just referred.
I shall not endeavour to rehearse at any length the argument that the law on this matter ought to be the same in Scotland as in England. But I believe that there is no sufficient justification for the difference. This is a matter in which the people are not dramatically different, and so far as the religious tradition is concerned, Mr. Robin Cook informed the other place—and I believe that he is right—that in 1968 the Church of Scotland endorsed the view that the law ought to be changed in the sense of this new clause. I do not think that that was a wrong statement, and I think that given that substantial support of the Church of Scotland, it is a factor that we ought to take into account.
The Earl of SELKIRK: My Lords, I think that I should tell the noble and learned Lord that that has been flatly denied.
Lord McCLUSKEY: My Lords, I can only refer to what was said by Mr. Cook, who made a very careful speech. I am not a member of the Church of Scotland, and I am not very familiar with its proceedings.
One other point that I want to raise is that the noble Earl, Lord Lauderdale, referred to the Royal Garden Party and suggested that that was the reason why the clause succeeded in another place. The voting, in fact, was 203 votes in favour and only 80 against. Of the 40 Scots who voted, 29 voted in favour of the clause and 11 voted against.
This matter has been discussed many times. The last time it was discussed
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fairly fully was when I was the Solicitor-General for Scotland. It came before the House in a Consolidation measure—I think that it was the Act of 1976—and we had to say to the House, through the then Lord Advocate, that this was not a matter that could properly be dealt with in a consolidation measure. Unless we use this kind of vehicle to make this logical change in the law, I think it may take an awfully long time before the law is brought into line with the practice. For that reason, and no other, I would support the new clause.
Lord SHACKLETON: My Lords, I intervene only very briefly because I have found this a most distressing debate. I have found the allegations and the imputations of the noble Earl, Lord Lauderdale, and my noble friend Lord Galpern—a former Deputy Speaker in another place—really very unpleasant. I think it is quite improper to base an argument on the grounds that something has been slipped in—the implication that somehow there have been sinister forces at work. That is designed simply either to obscure the argument or to reflect the lack of charity—
Lord GALPERN: My Lords, I am sorry to interrupt, but I have been referred to as a former Deputy Speaker. May I intimate to your Lordships that "slipped in" is a parliamentary phrase; it is parliamentary language.
Lord SHACKLETON: My Lords, I am well aware that it is parliamentary language, but it is none the less objectionable unless it is justified by some sort of evidence, and there has been no such evidence. The fact is that it is very difficult to get this type of legislation through Parliament anyway. I say to my noble friend that I do not think that he would really suggest that the Ten Minute Rule Bill is a serious way of dealing with this type of matter.
What I find so distressing is that we are really back to Wolfenden again. I ask noble Lords who have opposed this provision to look up some of the basic arguments and to show a certain amount of charity. Those of us who are more fortunate and who are not homosexuals ought in my opinion to be sympathetic to those who are; and to some extent

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this situation reflects that nasty side of mankind which resents and attacks the minority.
I do not doubt the sincerity of noble Lords, and I do not accuse them of slipping in arguments; none the less, I hope that your Lordships will follow past practice. The House of Lords has shown a great deal of courage in the past. Much controversial legislation first saw the light of day, and was first debated, in your Lordships' House and, like Lord Boothby's Bill, was improved. There were any number of Bills of that kind. There is no right way to introduce this sort of legislation. I find it very difficult to suggest that the vote in another place, where there was a majority of over two to one—200 to 80 I think—was due to the fact that it happened to be the day of the Royal Garden Party. I hope that in this matter your Lordships will show the consistency that you have shown in the past. I for one find it intolerable that there should be a law which is not going to be enforced, and will never be enforced.
I am not competent to say whether or not the Church of Scotland, in fact, welcomes this legislation. None the less, there are valid reasons from the Church's point of view why it should be welcomed—so that those who are in need of help will know that they are not, in fact, in breach of the law, whether or not it is in force or whether there is an abstention.
I shall not attempt to recap all the arguments in the Wolfenden Report. They were immensely widely discussed. In particular they were discussed in your Lordships' House. I remember that a number of right reverend Prelates supported it, and I hope that today we shall not go back on a course on which I think we are well embarked, which has been adequately discussed and which could have been discussed for very much longer in another place. Therefore, I hope that those who may have been bothered by some of the arguments that have been advanced will stick to the liberal and charitable line in this matter.
Lord BOOTHBY: I do not want to detain your Lordships for more than a few more minutes, but when I rose last time and attempted to speak, and when the noble and learned Lord the Lord
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Chancellor put the Question, I was about to say that in the light of the statements made by the noble Earls, Lord Mansfield, Lord Selkirk and Lord Perth and the noble Lord, Lord Ross of Marnock, I proposed not to oppose the amendment, which evidently commanded the approval of the House. That was the original amendment and, in fact, I did not oppose it.
But on the main and general question, I should like to tell your Lordships—before you reach a final decision—how it all started. There has been much discussion in this House today as to what went wrong in this House and in the House of Commons; how it should not have been introduced; what was done and how it was slipped in. But how did it begin? I rely on a brief quotation—which I think is absolutely devastating—from the later Sir Travers Humphreys about what gave rise to all this. It is Section 2 of the Criminal Law Amendment Act 1886. This is what Sir Travers Humphreys wrote about it:
"Until that Act came into force"—
and 1886 is a long time ago—
"Until that Act came into force, on January 1st 1886, the criminal law was not concerned with alleged indecencies between grown-up men committed in private. Everyone knew that such things took place, but the law only punished acts against public decency and conduct tending to the corruption of youth. The Bill in question, entitled, 'A Bill to make further provisions for the protection of women and girls, the suppression of brothels and other purposes', was introduced and passed by the House of Lords without any reference to indecency between males. In the Commons, after a second reading without comment, it was referred to a committee of the whole House. In committee Mr. Labouchère moved to insert in the Bill the clause which ultimately became section 11 of the Act, creating the new offence of indecency between male persons in public or private. Such conduct in public was, and always has been, punishable at common law. There was no discussion except that one member asked the Speaker whether it was in order to introduce at that stage a clause dealing with a totally different class of offence to that against which the Bill was directed. The Speaker having ruled that anything could be introduced by leave of the House, the clause was agreed to without further discussion, the only amendment moved being one by Sir Henry James with the object of increasing the maximum punishment from 12 to 24 months, which was also agreed to without discussion.
"It is doubtful whether the House fully appreciated that the words 'in public or private' in the new clause had completely altered the law; but as soon as the Royal Assent had been given and the Act was published, there began a spate of correspondence in the newspapers, both legal and lay,

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and references to the subject on various public platforms, which were duly reported. A learned Recorder dubbed it 'The Blackmailer's Charter', and an eminent Q.C. prophesied that juries would refuse to convict where the alleged acts were in private and not visible to any member of the public. On the other hand those interested in the welfare of girls welcomed the Act as a whole so warmly (and indeed it was an excellent Act apart from section 11), and it was so clearly impossible to do anything except let the law take its course, that after a few weeks the clamour died down and the public interest became centred upon some more savoury topic".
It is on that, which I regard as a devastating article, that I base the whole of my activities on behalf of the Wolfenden Report, and their reform of the law. When one realises how this law came into being, it seems pretty good nonsense to talk, as some noble Lords have today, of the surreptitious means by which it has been passed through Parliament. This House gave long consideration to my Bill. I am perfectly prepared—and, I never thought that it was unreasonable—to accept the amendment of the noble Earl, Lord Selkirk. The noble Lord, Lord Ross of Marnock, knows as well as I that it is practically impossible to get a Private Member's Bill through the House of Commons unless you are extremely lucky—you have to be lucky in the ballot. I think that there are five a year; I never had one passed. This was the only Bill that I ever introduced. Now I see it in jeopardy. I do not want it to be in jeopardy and I am prepared to agree to any reasonable amendment. If your Lordships—having passed this Bill by a large majority, having given a lead to the Commons, the Commons having accepted that lead by an equally large majority—chuck the Bill back in their faces, it would be a tragedy for this country and do no one any good.
Lord ROBERTSON of OAKRIDGE: My Lords, I do not want to offer any view on the principle of the clause or, indeed, on Scottish opinion on it; I am not qualified to do so. On the procedural question, I have one remark to make, which is that if no less a person than the right honourable Secretary of State was under the impression that the debate concerned merely a carbon copy of the English Act, then there is a case for asking the other place to look once more at the clause.
I should like to raise one matter of detail where there appears to be an
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apparent difference between the English Act of 1967 and the clause under debate. That concerns the protection of children, which seems to be one of the most important aspects of the matter. It is important not only because there are individuals who may be led to have sexual gratification with young children, but also because there exists at least one organisation which actively supports people who would want to do that. The difference is that in the 1967 Act additional penalties are provided where the other person concerned is under 16 years of age. This is not the case in subsection (9) of the clause.
I should be very grateful if, when the Minister answers this debate, he could give an assurance that this aspect of the matter has been studied and, if not, that it will be studied, to make certain that we are not withdrawing protection under Scottish law for children who might be at very serious risk.
Lord MONSON: My Lords, as the noble Lord, Lord Ferrier, suggested that I had misled your Lordships in citing the Division that took place in June 1977 on Lord Boothby's Bill, may I comment briefly on what he said. It is perfectly true that the Division did not take place on Second Reading, but it did take place upon an amendment which was effectively a wrecking amendment: if the amendment had been carried, the Bill could not have received a Second Reading. Following that Division the Bill received an unopposed Second Reading.
It is worth noting that 94 per cent. of Labour Peers present effectively voted for Second Reading as did 89 per cent. of the Independents, 100 per cent. of the Liberals and 60 per cent of the Conservatives, including a former Conservative Prime Minister, himself a Scot.
I submit that those of us who believe in individual freedom, especially where strictly private activity is concerned, and who want, therefore, to bring the laws throughout the United Kingdom into line with the laws that prevail on this matter in virtually every other civilised country, do not have to justify ourselves. It is for those who wish to retain archaic and draconian laws, which have almost disappeared from the statute books of every other Western country, to make out a convincing case for doing so. I do not

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think that they have made out such a case and I hope, therefore, that your Lordships will reject the amendment.
Lord DRUMALBYN: My Lords, we are talking about whether the clause should be retained in the Bill. We are not talking about the past. We must have regard to recent experience. I listened with great interest and, as always, with admiration to the speech of Lord Shackleton. He said that it is difficult to get this kind of Bill through by way of Private Members' Bills. Was not this Bill too important a Bill to go through by that means?
The noble Lord went on to mention that successive Lords Advocate have said that they will never enforce the present law. Lords Advocate do not last for ever, and circumstances could change in Scotland now to the point where the policy of the Lord Advocate would change. After all, even under the English 1967 Act there are certain things that are left entirely to the decision of the Director of Public Prosecutions.
One has to answer the right questions. It seems to me that one of the right questions is whether the passage of this clause will increase the practice of homosexuality. The second question is whether the clause has the support of the Scottish people. If we take the second question first, there is no evidence that it has the support of the Scottish people. From one's own private conversations the contrary appears very strong, and not least because those who read the national newspapers and other newspapers are finding more and more references to the propagation of abnormality.
If we remove the legal deterrent, we are bound to increase the practice. Someone has said today that that was foreseen by Lord Wolfenden's Committee. The noble Lord thought that it would happen and it is happening as far as one can see. There has been a proliferation of clubs, magazines and all sorts of thing that cannot fail to increase the practice of homosexuality in England and Wales.
One perhaps would not mind so much the lack of any indication of support from Scotland if there were a change if it were not for the fact that things appear to be going wrong in England at present.
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I entirely agree with the noble Lord that in circumstances of that sort it would be right to have an inquiry to ascertain what is going on in England and how the 1967 Act is turning out.
The English are a very tolerant people, but for prudent people there is a limit to tolerance. I am not clear that we are not reaching that limit in England at the present time. I know that there are other Acts that can be invoked. However, the fact remains that we probably need a battery of Acts if we are really to combat this sort of thing. For my part, I would regard the inclusion of sodomy in the Bill with the very greatest misgiving. I do not see why that should be included in a Scottish Bill merely because it is included in an English Bill, even if a compassionate view is taken of other forms of offence.
If anyone challenges my allegation that things are getting worse in England, let us have an inquiry to solve it. In my view, it is an abuse of parliamentary procedure to rush in legislation at the tail end of an extremely long Session. It is an abuse of procedure to pop in the clause—curiously enough, it was popped in at the front and now it is well down the line—and even if that were justified by the circumstances, or alleged to be so justified, that is something that would have to be clearly shown. I do not believe that it has been clearly shown that it is justified by the circumstances at present.
I voted in favour of Lord Boothby's Bill on Second Reading largely for procedural reasons and because I did not think that that Bill ought not to be discussed. In view of the change of circumstances and the lack of support in Scotland for this, I am inclined to join with those who would throw out the clause.
Lord McCLUSKEY: With the leave of the House, the noble Lord said that there is no evidence that this reform has the support of the Scottish people. Does he say that there is no evidence that the practice of successive Lords Advocate in not prosecuting this crime has had the support of the Scottish people? If there is no such evidence, does he suggest that the Lord Advocate, or the next Lord Advocate, should start prosecuting the crime that is covered by this clause?
Lord DRUMALBYN: I think that the noble and learned Lord's questions are not relevant to the issues that we are discussing. There is no evidence that the Scottish people are behind this. However, there can be no doubt that people in Scotland know that it is against the law. That has a great deterrent effect.
Lord HUGHES: My Lords, I have spoken on this subject once in your Lordships' House and that was on Second Reading on Lord Boothby's Bill. The view that I shall express tonight is the one that I then expressed in justifying my support for the Bill's Second Reading. At that time there was a fair amount of criticism being voiced in the country about the extent to which sections of the population were choosing the pieces of legislation that they were prepared to accept. At that time strong support was being expressed for the concept that Acts passed by Parliament which were not acceptable to some people should be ignored. Local authorities were being encouraged to ignore pieces of legislation.
I expressed the view then that it was inappropriate that the principal Law Officer in Scotland should be joining that type of person in saying, "Here is the law of Scotland, but I am not going to enforce it."
I am not certain whether that attitude of Lords Advocate arose only when the English Act was passed. I have the feeling when Lords Advocate were acting in that way even before the English law was changed. But I am not certain on that point. It has been stated quite definitely that four successive Lords Advocate have acted on the basis that they will not enforce the law. If a law is not to be enforced by those who have responsibility for enforcing the law, surely that is the best possible argument for changing the law. The real difficulty is not that Lords Advocate will continue to do so but, as the noble Lord, Lord Drumalbyn, said Lords Advocate are not there forever and another Lord Advocate might change the practice.
My noble friend Lord Shackleton referred to the practice when he said, "A law which is not enforced and is never going to be enforced". In the first part of that statement he is correct; in the second part of the statement he may prove to be totally
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wrong. It seems to me to be quite wrong that what is done in this matter in Scotland should depend on the whim of a particular Minister. I do not know what the present Lord Advocate's view is on these matters, whether he would take the same view as his predecessors and not enforce the law. I know even less of what would be the view of the next Lord Advocate, but it is not beyond the bounds of possibility that we could have someone becoming Lord Advocate who held the view as sincerely as Lord Advocate as the noble Earl, Lord Lauderdale, has held, in which case the law of Scotland would be changed overnight in its enforcement, not in its enactment. For that reason it seems to me that what we have been indulging in in Scotland since the English law was changed is hypocrisy. We have sheltered behind the willingness of Lord Advocates to act as thought the law had been changed. If that is a desirable way for things to be done, I suggest that the law ought to be changed.
I would put a further point. I want to go back to what the noble Earl, Lord Selkirk, said—and I was rather surprised at the literature which he apparently reads when he quoted from Gay News, but I am not suggesting that it is his normal bedtime reading—when he quoted the statement that if the law was changed in the form in which it came to us from the Commons it could make orgies permissible. What we do not know at the present time is whether orgies are permitted in Scotland, because the Lord Advocate does not give a list of the cases which he has not prosecuted. If the Bill remains as it is at the present time there is a limit on what will be permitted in Scotland. It will be not more than two consenting adults in private. Can anyone say whether previous Lord Advocates have refused to prosecute in cases where there were five consenting adults in private, or eight consenting adults in private? I doubt very much whether anyone is in a position to say what took place.
For that reason what is now in this Bill makes the position in Scotland absolutely clear. I know one thing; if your Lordships accept the Commons amendment as it has now been changed by your Lordships, the Lord Advocate will not be in a position to say, "I am not going to enforce the law. I will not prosecute where more than two consenting adults

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have acted in private." The law will be brought into a position where it has to be enforced, and it seems to me that that is a much more satisfactory position than what we have tolerated for the last 13 years.
6.13 p.m.
Lord WILSON of LANGSIDE: My Lords, I rise with the greatest reluctance because I find it difficult to believe that I can find anything new to say on this subject, but let me just try. I can understand the anxieties of the noble Earl, Lord Lauderdale, and the noble Lords, Lord Galpern and Lord Drumalbyn, as to the procedure which has been followed which brings this clause before your Lordships now. But when one looks at the history of this wretched matter since the Labouchère amendment, which is the cause of it all over 100 years ago, it is surely stretching things a little to suggest, as the noble Lord, Lord Drumalbyn, did, that it was an abuse of parliamentary privilege to try to put the matter right in this way now.
Lord DRUMALBYN: My Lords, I did not say, "privilege"; I said, "time".
Lord WILSON of LANGSIDE: My Lords, I apologise, but subject to that correction I hope that your Lordships will take my point. I hope that your Lordships will reflect carefully on what particularly the noble and learned Lord, Lord McCluskey, and the noble Lord, Lord Shackleton, have said on this matter. What will happen if your Lordships decide, because of your reservations on the procedural aspect of the matter, that this shall not become the law? We shall go on discussing it here and elsewhere to the acute boredom of many of us. The thing will go on just as it has always done.
I, like the noble Lord, Lord Ross, think there are many aspects of Scots Law which we should preserve different from those of England but the history of this matter does not suggest that this is one of these. That is all I am saying now. What will happen will be that we shall go on talking and having further debates when we should find more important things to talk about in this House and elsewhere, and eventually the law of Scotland will be brought into line with the law of England.
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Whatever our reservations on these other aspects, might it not be better for us to do it tonight?
6.17 p.m.
Lord FOOT: My Lords, I do not want to prolong this debate for a minute longer than it need last. Indeed, I am anxious that we should get to a Division if we are going to have a Division at all. Everything that can be usefully said on the subject has already been said. I am not going to say anything about the merits of the matter because that has already been most admirably said by the noble Lords, Lord Shackleton and Lord Boothby. I have nothing to add to that.
When it comes to the argument which has taken place this afternoon, the substance of the main argument has been advanced by the noble Earl, Lord Lauderdale, and the people who have supported him, is that there has not been adequate discussion, and that this is being pushed through in a way which is unbecoming to this House and to Parliament. That surely is the most artificial of all criticisms that could be levelled. The fact is that the problem of homosexuality has been a matter of public discussion not only in England and Wales, but in Scotland and Northern Ireland for that matter, ever since we have had the Wolfenden Report. It has been a subject of fierce controversy and discussion throughout the whole of the realm over the last 13 years since the passing of the Act in this Parliament. Therefore, to pretend that something suddenly happened last July, that somebody has slipped something into the House of Commons which had never been thought of in Scotland and never discussed, is surely carrying the argument to the point of complete artificiality.
During that same 13 years while this public discussion has been going on and the debate has been going on, there has also been this continuing scandal that successive Lords Advocate have decided not to enforce the criminal law of Scotland as it has stood. Why have they failed to do it? Why have they refrained from enforcing the law which is their clear and constitutional duty? They have refrained from doing it because it would be near to obscene to have people sent into prison North of the Border for doing something which people can do South of the Border with impunity. That is the

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reason why they have done it—because it is outrageous that we should treat people on basic matters of human rights in a fashion like that. That is the reason why it has happened.
May I say to the noble Lord, Lord Drumalbyn, that nothing more extraordinary has been said in the course of this debate than when he said that Lords Advocate do not go on forever. He was apparently suggesting that there might be a future Lord Advocate who would suddenly decide to enforce the law of Scotland. Is that something that he is recommending? Is it right that whether people go to prison for committing a so-called homosexual act should depend upon the caprice of the Lord Advocate in Scotland? Should it depend upon the purely arbitrary decision, the prejudices—they might be the prejudices of the noble Earl, Lord Lauderdale? Are the rights of subjects to be at the risk of the prejudice of a particular Lord Advocate at any particular time?
My Lords, I have said quite enough about it. I only intervened in this discussion because I certainly thought that we ought not to conclude the debate without some word being said about the view which is taken by my noble friends and myself. I hope we can get very quickly to a Division and get this issue out of the way, because the last thing I have to say is this: this debate this afternoon is an exercise in futility. If we were to throw out this amendment and it goes back to the House of Commons, they will put it back again, so there is nothing to be gained; and I would suggest that some of the speeches made in the House this afternoon have not brought particular credit upon it.
Lord GALPERN: Before the noble Lord sits down, I wonder whether we could ask, in view of what he has just said, whether he and his party will now bring forward without any delay a similar Bill for Northern Ireland?
Lord FOOT: It depends what representations we get from Northern Ireland.
Lord GALPERN: Well, there you are.
Lord FOOT: I do not know what representations the noble Lord had from Scotland.
6.23 p.m.
Lord ROSS of MARNOCK: I can remember that we get into an awful mess in respect of Private Members' Bills when (a) we include Scotland and (b) when we do not include Scotland, because the laws are different on each side of the border. Dare I mention something called abortion? Scotland was wished into that Private Member's Bill, but the law in Scotland in relation to abortion was very different from the law in England and I sure that the noble and learned Lord the Lord Advocate will agree with me, not by his whims, but because the Bourne case that created the fuss in England could never have happened under the law of Scotland.
We discussed the Shops Acts, and we discovered that the Shops Acts do not apply to Scotland, for the simple reason that Scotland was such a Presbyterian country that they would never dream of opening the shops on Sunday in Scotland. I can assure your Lordships that the shops are all open now and they do not need any great permission unless there are local by-laws preventing them, for the simple reason that traditions are different.
In relation to this, I recognise that the one great dilemma in this is the fact that the law is there and is not being applied. That is the one big dilemma. I have not made up my mind yet. I think we have a responsibility as a House, Governments have responsibility, the Commons have a responsibility, for the social wellbeing and health of the nation and we have to try and judge what will be the effect of passing this provision if we allow it to go forward? Will it be to the benefit of not just the minority but the whole community?
The noble Lord, spoke about the question of children. The people who are at the most danger from the proselytising attack that goes on by this minority—and they are very articulate—are the young people. We hear about young people coming down from Scotland to London and being picked up and exploited in this way. So I would be better satisfied if we had indications of the activities of the police from the point of view of protection in respect of this.
The other point that worries me slightly is this—and I am sorry that I am as much to blame as anyone else, but I have certain preoccupations and this is where the

1859
question of hurry comes into it. This is brought in at the tail end of a Session when we have got all sorts of other Bills that we should be, and are, attending to. To read all this up and get the right amendments down is something we are not being given time to deal with. There is the question of defence. Under the English law the prosecution has only to prove that one of the parties was under 21 and that is enough. It is the very opposite in the Scottish clause that we have before us: it will be an offence for someone who is being charged that he had reasonable doubts about the fact that the person was under 21. I would like that to have been cleared up.
I can tell the noble Earl, Lord Lauderdale, that he nearly talked me out of complete sympathy with his point of view. I do not think it is right to condemn somebody for doing what Governments have done, introduce clauses that have not been debated in Committee or Report. I think he went a bit far, and I was very glad he was asked to withdraw, and did withdraw, his remarks about Mr. Robert Cook. I still think it is wrong for such provisions to be introduced so late and, with all due respect to the noble Lord, Lord Boothby, I have not been aware of any great public discussion in Scotland about it. I am perfectly sure that the great majority of the people in Scotland will not know we were discussing it until they hear it tomorrow morning, or late tonight in "Today in Parliament".
I come back to the one big problem, and that is how can we live with this business of having a law and yet it being stated that that law cannot be applied. If I could be reasonably assured that certainly if this was passed that law would be applied, and would be applied with vigour, to safeguard our young people, then I would be prepared to let it go. So I am waiting to hear what the Scottish Minister has to say before I can fully make up my mind about it.
Lord TAYLOR of GRYFE: A great deal has been said about the view of the Scottish people, and if the view of the Scottish people is to be interpreted in terms of the number of contributions in this House in favour of or against the clause it would suggest that the Scottish people are opposed. Apart from the
1860
intervention of the noble Lord, Lord McCluskey, and the noble Lord, Lord Wilson of Langside, there has been a fairly strong opposition as representing the view of the Scottish people.
I have no doubt, to answer the question of the noble Lord, Lord Drumalbyn, that if a vote or a referendum were to be taken in Scotland, such is the prejudice and such is the emotion aroused by this issue that there might be a majority against this clause. But there are occasions when the rights of minorities have to be respected, and it is part of the democratic tradition that certain rights of minorities and certain freedoms of minority groups have to be respected, even while the majority are against them. The homesexuals of this world are a sad and a sick people.
Baroness GAITSKELL: They are not sick.
Lord TAYLOR of GRYFE: Well, they are sad. They are sad and they are misfits in our community, and there are occasions where we have to provide with sympathy and understanding for these misfits.
There is protection in the clause, in so far as it refers only to consenting adults. We are not talking about the corrupton of young people. We are not talking about people who drift to London and are corrupted illegally by various people. We are talking, as the noble Lord, Lord Ross of Marnock, said, about bringing the law of Scotland into consistency with the law of England and making it sensible for the Lord Advocate to apply that law. For that reason, I suggest we think with sympathy and without prejudice about this matter and that we permit this clause to be operated so that the law may operate with sense and understanding.
Lord DONALDSON of KINGS-BRIDGE: My Lords, we all want to hear the Minister, so I will not detain the House. As a heterosexual who lives in England, I find it difficult to vote on this issue, though if I lived in Scotland I should not have the slightest hesitation in opposing the noble Earl's amendment and supporting my noble and learned friend Lord McCluskey. Are English Peers going to vote on this or not? If they are, I shall stay and vote, but I

1861
believe there is a strong case for saying that the Scots should not have something forced on them, nor should the Northern Irish. I am therefore a little puzzled and perhaps the Minister will give his view because he at least lives north of the border.
Lord SHACKLETON: My Lords, I hope my noble friend realises that what he is proposing is quite unconstitutional.
Lord DONALDSON of KINGS-BRIDGE: Of course.
The Earl of MANSFIELD: My Lords, it may be that the House will now want to determine this matter. To take the point made by the noble Lord, Lord Donaldson, first, this is the Parliament of the United Kingdom, and in spite of my funny-sounding title, my peerage is that of Great Britain and I certainly intend to vote. I hope all noble Lords will exercise their right, otherwise there is little purpose in them being here.
The history of this matter has been well canvassed. Your Lordships have been told of the amendment which was removed on Report in another place by the honourable Member for Edinburgh Central, who was supported in his contentions by a number of other Members. I think it is right to say that the argument in the other place rested on two main considerations. The first was that it was a matter of anomaly that there should be different laws on a matter of very considerable importance on each side of the border. The second was that it did not create respect for the law to have legislation on the statute book in Scotland which by administrative decision was not enforced, and as the noble and learned Lord, Lord McCluskey, said, successive Lords Advocate have publicly stated that it is not their policy to prosecute cases of homosexual acts in private between two consenting adults.
If I have a quarrel, it is with the noble Lord, Lord Foot. I do not think Lords Advocate of either party act on whims. That is at the very least a gross discourtesy to an honourable and ancient Scottish office. They administer the law and it has been well settled for a considerable time how in fact this particular part of the law is to be administered. It is of course a matter for the Lord Advocate,
1862
as it is his responsibility over all criminal prosecutions, to decide, where there is evidence, whether there is what amounts to corroboration and, if it is necessary in a particular case, whether the law is going to be enforced if there are more than two adults, and so on.
I come to the Government's position in this; there might have been some confusion but I do not think there was. In the other place, my right honourable friend the Secretary of State made it plain that he deprecated the introduction of what is a fundamental change in the law of Scotland at a late stage in the progress of a Government Bill at a comparatively late time of the parliamentary Session, this at a time when there is no doubt that there is strong and divided opinion in Scotland. He said the amendment as proposed was not defective, and I am sure he meant that, and I am equally sure that in the somewhat narrow context of those words he was right. He was uneasy at the way in which the amendment was introduced—without there being, as he thought, enough time for debate and enough time to take consultations—and if I may say so, that unease has been amply proved to be right because, as I said to your Lordships at an earlier stage, the amendment which purported to bring the law of Scotland in line with the law of England in fact did no such thing.
It would have permitted acts between more than two consenting adults and there was an argument at least—I do not put it any higher than that—for saying that those acts could have taken place in a public lavatory. So, in spite of the fact, that this matter has been looked at, not least by your Lordships, the effect of the vote in the other place was that if it had not been for the fact that we had a second revising Chamber, there would have been passed, I am sure in all good faith, a measure which would have put the law of Scotland on quite a different plane from the law of England.
It is for those reasons—if I may speak personally for just two sentences—I deprecate this particular amendment. My second sentence on this personal level is that on the basis that it is really too much in this matter to have two speeches from the Government Front Bench, my noble and learned friend the Lord Advocate has asked me to say that on this basis,

1863
as I have said, he also considers it is not appropriate that such an amendment should be introduced in the way in which this one has been.
Lord ROSS of MARNOCK: My Lords, may I ask the Minister to be absolutely clear on this, because we are after all dealing with a Lords Amendment, an amendment put forward by the noble Earl, Lord Lauderdale? May I ask the Minister to make clear whether he is for the Commons amendment; or was he talking about the noble Earl's amendment?
The Earl of MANSFIELD: I am obliged to the noble Lord, my Lords, lest there be any dubiety about this. I thought my noble friend was moving a Motion to disagree with the Commons amendment. I am saying that I think the amendment as it came from the Commons was inappropriate, and that is what my noble and learned friend says too, if I may paraphrase his thoughts on the subject. The Government allowed a free vote, as will happen tonight if it comes to it in your Lordships' House. In the other place the result was a decisive majority, by 203 votes to 80, in favour of the new clause. I think that where there has been such a decisive majority for something among the elected Members of Parliament, this House would naturally think twice before taking, any action, as it were, to disturb that decision. As against that, because the amendment of the noble and learned Lord, Lord Fraser, has been accepted by your Lordships, the matter will have to go to the other place again in any event, so that whatever is the result of the Motion moved by my noble friend Lord Lauderdale, it will have to go back to the other House anyway.
Since that vote, my ministerial colleagues and I have received well over 100 letters and a number of petitions expressing opposition to the change in the law proposed by the new clause. I will not comment on the merits of those objections. I merely say that we have received them, and I think that we are hound to accord respect, at any rate, to sincerely-held views.
I also point out that there have been very few representations in favour of the new clause, but it must be fair to point out
1864
that in this area it is much more usual to receive representations from people who object than it is to receive them from those who support. I am merely telling your Lordships of the facts, and am not really wishing to comment on them too much. It is also fair to say that over the years there has been a steady flow of representations to the Scottish Office calling for what nowadays is called the decriminalisation of private homosexual acts between consenting adults. So I think it is fair to say that, probably as in England, public opinion in Scotland is strongly divided on this issue.
As I have said, and as your Lordships know, the new clause was in fact based on the measure which was introduced by the noble Lord, Lord Boothby; and that Bill completed its stages in this House but ran out of time. I was asked a number of questions. I think the noble Lord, Lord Robertson, and certainly the noble Lord, Lord Ross, were concerned about the position of young persons. What I can say about that is that, by the introduction of this amendment, young persons will not be put in any jeopardy, or (shall I say?) in no greater jeopardy than they were before. The reason I say that is that, although this new clause imposes, as it were, a statutory licence in the case of homosexual offences, the common law of Scotland is affected only as is provided in subsection (1). Therefore, it will be perfectly possible, and indeed it will no doubt happen, that if there are homosexual acts which involve those under the age of 21 (or, still more seriously, young persons) then there are offences under the common law of Scotland which are well able to deal with them.
The next matter which I think one or two noble Lords touched on was the question of penalties. I do not know whether it has been said, but I am going to say that the terms of imprisonment contained in subsection (11) of the new clause purport to make the maximum term of imprisonment on indictment a year less than it is in England; that is to say, two years instead of three. I think it is fair to point out that it will be perfectly possible to bring criminal proceedings in Scotland under the common law whether or not this new clause exists, and very much greater penalties exist under the common law. So in an appropriate

1865
situation, where there is what I might call a bad case, I have no doubt that proceedings would be brought, not under subsection (6)(c), for instance, but under the common law. So I do not criticise the proposed new clause on that ground.
I was asked by my noble friend Lord Drumalbyn to review, as it were, the progress (if that is the word) of the legislation in England since 1967. I think it would be very rash if a Minister of the Scottish Office attempted to do anything of the sort, but what I can say to your Lordships is that we have had no representations in the Scottish Office to the effect that the legislation in England has in any way been uncertain or unsatisfactory. I am bound to point that out.
I do not think that I can say any more which is helpful. I am not going to enter into any debate on the merits of the proposal, the history of the matter, Wolfenden and so on, but what I do say to your Lordships is that so far as this clause is concerned, the Government do not propose to depart from—I was going to say—the hallowed tradition of allowing a free vote on the issue.
The Earl of LAUDERDALE: My Lords, procedure allows the mover of this Motion the right of reply, but I shall be as brief as possible. First, I again apologise to the House, and through the House to the other place, if any words of mine were thought to mean that I was criticising the good faith or the judgment of any Member of either House. What I was referring to was the pressures behind them; which brings me to the question of whether matters are better or worse in this whole area since the 1967 Act.
The Library here now has an interesting reference book which lists pressure groups operating on behalf of various interests. I find that since the 1967 Act some eight pressure groups have formed themselves in order to advance homosexual propaganda, including paedophilia. So I think it is fair to say that the situation has greatly changed since 1967. My noble friend Lord Mansfield has again damned with faint praise—very faint praise—the amendment which has come from another place. He has confirmed that Scottish opinion is at least greatly divided, and he leads one to suppose that, if it is greatly divided, then it is not greatly clamouring for this particular change.
Those who say it is absurd to have a law which is not enforced have much common sense on their side, and I personally think that this argument is the most powerful of all the arguments. But against that I would put it to your Lordships that there is much to be said for having simply a declaratory law about right and wrong. That declaratory law has been a deterrent to the spread of this particular practice; and I would only ask your Lordships to forget my exaggerations of language, to accept sincerity of purpose, as we all do from one another, and to vote according to the conscience that we each have in the innermost tabernacle of our soul.
6.48 p.m.
On Question, Whether this House doth disagree with the Commons in their Amendment No. 101, as amended?
Their Lordships divided: Contents, 48; Not-Contents, 59.

CONTENTS

Avon, E.

Gormanston, V.

Mottistone, L.

Beswick, L.

Gray, L.

Netherthorpe, L.

Birdwood, L.

Keyes, L.

Newall, L.

Brougham and Vaux, L.

Kimberley, E.

Orkney, E.

Cathcart, E.

Kinloss, Ly.

Robertson of Oakridge, L. [Teller.]

Chesham, L.

Lauderdale, E.

Cottesloe, L.

Linlithgow, M.

Saint Oswald, L.

Craigmyle, L.

Listowel, E.

Sandys, L.

Cullen of Ashbourne, L.

Liverpool, E.

Spens, L.

Donegall, M.

Long, V.

Strathclyde, L.

Drumalbyn, L.

Loudoun, C.

Swansea, L.

Ellenborough, L.

Lyell, L.

Swinfen, L.

Falkland, V.

Mackay of Clashfern, L.

Trefgarne, L.

Ferrers, E.

Mancroft, L.

Vaux of Harrowden, L.

Ferrier, L. [Teller.]

Mansfield, F.

Vivian, L.

Freyberg, L.

Morris, L.

Westbury, L.

Galpern, L.

NOT-CONTENTS

Abinger, L.

Hale, L.

Segal, L.

Adeane, L.

Harmar-Nicholls, L.

Selkirk, E.

Ardwick, L.

Howie of Troon, L.

Shackleton, L.

Avebury, L.

Hughes, L.

Stamp, L.

Balogh, L.

Hylton, L.

Stedman, B.

Banks, L.

Hylton-Foster, B.

Stewart of Fulham, L.

Beaumont of Whitley, L.

Jeger, B.

Stone, L.

Blease, L.

Killearn, L.

Strabolgi, L. [Teller.]

Boothby, L.

Kilmarnock, L.

Taylor of Gryfe, L.

Colville, of Culross, V.

Kirkhill, L.

Taylor of Mansfield, L.

David, B. [Teller.]

Llewelyn-Davies of Hastoe, B.

Teviot, L.

Davies of Leek, L.

McCluskey, L.

Thurso, V.

Donaldson of Kingsbridge, L.

McGregor of Durris, L.

Underhill, L.

Elliot of Harwood, B.

Marley, L.

White, B.

Foot, L.

Mishcon, L.

Wigoder, L.

Fortescue, E.

Monson, L.

Wilson of Langside, L.

Gaitskell, B.

Mount Edgcumbe, E.

Wilson of Radcliffe, L.

Glenamara, L.

Perth, E.

Winterbottom, L.

Greenwood of Rossendale, L.

Phillips, B.

Wynne-Jones, L.

Gregson, L.

Ritchie-Calder, L.

On Question, Motion agreed to.

6.55 p.m.

COMMONS AMENDMENT
101 After Clause 77, insert the following new clause:
Homosexual offences.
(".—(1) Subject to the provisions of this section, a homosexual act in private shall not be an offence provided that the parties consent thereto and have attained the age of twenty-one years.
(2) A male person who is suffering from mental deficiency which is of such a nature or degree that he is incapable of living an independent life or of guarding himself against serious exploitation cannot in law give any consent which, by virtue of subsection (1) above, would prevent a homosexual act from being an offence, but a person shall not be convicted on account of the incapacity of such a male person to consent, of an offence consisting of such an act if he proves that he did not know and had no reason to suspect that male person to be suffering from such mental deficiency.
(3) Section 97 of the Mental Health (Scotland) Act 1960 (prohibition on men on the staff of a hospital, or otherwise having responsibility for mental patients, having sexual intercourse with women patients) shall have effect as if any reference therein to having unlawful sexual intercourse with a woman included a reference to committing a homosexual act.
(4) Subsection (1) above shall not prevent a homosexual act from being an offence under any provision of the Army Act 1955, the Air Force Act 1955 or the Naval Discipline Act 1957.
(5) In this section, "a homosexual act" means sodomy or an act of gross indecency by one male person with another male person.
(6) Subject to the provisions of subsection (2) above, it shall be an offence to commit or to be party to the commission of, or to procure or attempt to procure the commission of a homosexual act—

(a) in public;

(b) without the consent of any party to the act;

(c) with a person under the age of twenty-one years; or

(d) where the act is committed on board a United Kingdom merchant ship wherever it may be, by a male person who is a member of the crew of that ship with another male person who is a member of the crew of that ship or any other United Kingdom merchant ship.

(7) In this section, "member of the crew" in relation to a ship, includes the master of the ship; "United Kingdom merchant ship" means a ship registered in the United Kingdom habitually used or used at the time of the alleged offence for the purposes of carrying passengers or goods for reward.
(8) It shall be an offence to procure or attempt to procure the commission of a homosexual act between two other male persons.
(9) From the commencement of this section a person who commits or is party to the commission of an offence under subsection (6) or subsection (8) above shall be liable on conviction on indictment to imprisonment for a term not exceeding two years or to a fine or to both and on summary conviction to imprisonment for a term not exceeding 3 months, or to a fine not exceeding the prescribed sum (within the meaning of section 289B of the 1975 Act).
(10) It shall be a defence to a charge of committing a homosexual act under subsection (6)(c) above that the person so charged being under the age of 24 years who had not previously been charged with like offence, had reasonable cause to

1869
believe that the other person was of or above the age of twenty-one years.
(11) A person who knowingly lives wholly or in part on the earnings of another from male prostitution or who solicits or importunes any male person for the purpose of procuring the commission of a homosexual act within the meaning of subsection (5) above shall be liable:

(a) on summary conviction to imprisonment for a term not exceeding six months, or

(b) on conviction on indictment to imprisonment for a term not exceeding two years.

(12) Premises shall be treated for the purposes of sections 13 and 14 of the Sexual Offences (Scotland) Act 1976 as a brothel if people resort to it for the purpose of homosexual acts within the meaning of subsection (5) above in circumstances in which resort thereto for heterosexual practices would have led to its being treated as a brothel for the purposes of those sections.
(13) No proceedings for an offence to which this subsection applies shall be commenced after the expiration of twelve months from the date on which that offence was committed. This subsection applies to:

(a) the offences mentioned in subsections (6) and (8) above; and

(b) any offence under subsection (11) above which consists of soliciting or importuning any male person for the purpose of procuring the commission of a homosexual act.".)

The Earl of MANSFIELD: My Lords, this is consequential. I beg to move.
Moved, That this House doth agree with the Commons in their Amendment No. 101.—(The Earl of Mansfield.)

COMMONS AMENDMENT
107 Schedule 1, page 52, line 27, at end insert—

"THE IMMIGRATION ACT 1971 (c. 77)

Section 21(1)(a) in so far as it relates to entry in breach of a deportation order, section 24(1)(b) and section 26(1)(f) in so far as it relates to a requirement of regulations (various offences concerning persons entering, or remaining in, the United Kingdom).

An officer authorized to do by the Secretary of State.

In relation to a person identified in the certificate—

(a) the date, place or means of his arrival in, or any removal of him from, the United Kingdom;

(b) any limitation on, or condition attached to, any leave for him to enter or remain in the United Kingdom.

(c) the date and method of service of any notice of, or of variation of conditions attached to, such leave"

COMMONS AMENDMENTS
102 Clause 81, page 51, line 27, at end insert', section (Execution in different parts of United Kingdom of warrants for imprisonment for non-payment of fine)'
103 Clause 81, page 51, line 30, leave out 'paragraph 8' and insert 'paragraphs 2, so far as relating to section 22, and 8 to 10'
104 Clause 81, page 51, line 34, after 22' insert 'section (Execution in different parts of United Kingdom of warrants for imprisonment for non-payment of fine).'
105 Clause 81, page 51, line 35, after 'section' insert 'paragraphs 2, so far as relating to section 22, and 8 to 10 of Schedule 6'
The Earl of MANSFIELD: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 102 to 105. These are consequential amendments which have already been spoken to. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)

COMMONS AMENDMENT
106 Clause 81, page 51, line 43, leave out subsection (8).
The Earl of MANSFIELD: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 106. This is a purely technical amendment which removes the words inserted by this House to avoid questions of privilege. I beg to move.
Moved, That this House cloth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
The Earl of MANSFIELD: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 107. This amendment extends the range of matters which may be dealt with by certificate evidence to include certain specific offences under the Immigration Act 1971. Proof of these offences requires, inter alio, factual information relating to the accused's date and place of arrival; the conditions attached to any leave to enter; any subsequent variation of these conditions; and the date on, and method by which, the accused was given notice of any leave to remain.
Under current Scottish law the presence of two persons is required in court to speak on such matters. A certificate under Schedule 1 to the Bill would simplify the procedures and considerably reduce the administrative burden of sending officers to court to give purely factual evidence.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)

COMMONS AMENDMENTS
108 Schedule 2, page 54, line 36, leave out 'an appellant' and insert 'a person'
109 Schedule 2, page 55, line 7, leave out 'appellant' and insert 'convicted person'
110 Schedule 2, page 56, line 20, leave out from in 'to subsection' in line 25.
111 Schedule 2, page 56, line 27, at end insert'; and
(b) after subsection (2) there shall be inserted the following subsection—
"(3) For the purposes of subsections (1) and (2) above, 'appellant' includes not only a person who has lodged a note of appeal but also one who has lodged an intimation fo intention to appeal.".'.
Lord MACKAY of CLASHFERN: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 108 to 111. These are purely drafting amendments designed to clarify the use of the word "appellant" in Schedule 2. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Mackay of Clashfern.)

COMMONS AMENDMENTS
112 Schedule 2, page 57, line 38, after 'may' insert', subject to subsection (4) below,'
113 Schedule 2, page 58, line 14, after 'may' insert ', subject to subsection (4) below,'
114 Schedule 2, page 58, line 23, at end insert—
'(4) In relation to any appeal under section 228(1) of this Act, the High Court shall, where it appears to it that the appellant committed the act charged against him but that he was insane when he did so, dispose of the appeal by—

(a) setting aside the verdict of the trial court and substituting therefor a verdict of acquittal on the ground of insanity; and

(b) quashing any sentence imposed on the appellant as respects the indictment and ordering that he be detained in a state hospital or such other hospital as for special reasons the court may specify.

(5) The provisions of subsection (4) of section 174 of this Act shall apply to an order under subsection (4)(b) above as they apply to an order under that section.'.
Lord MACKAY of CLASHFERN: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 112 to 114. The aim of this amendment is to include in the solemn appeal provisions an existing power of the High Court which has been omitted from Schedule 2. The new Section 254(1)(b) gives the High Court the power to substitute an amended verdict of guilty, but it does not include the existing power of the High Court to substitute a verdict of acquittal on the grounds of insanity where the court is satisfied that the appellant committed the act but was insane at the time. The power is rarely used but is not without importance or usefulness, and should in our view be retained. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Mackay of Clashfern.)

COMMONS AMENDMENTS
115 Schedule 2, page 59, leave out lines 21 to 24 and insert 'for the words "ten days", "note of appeal or of application for leave to appeal "and" the determination thereof" there shall be substituted, respectively, the words "two weeks", "an intimation of intention to appeal (or in the case of an appeal under section 228(1)(b) of this Act a note of appeal)"and" such appeal, if it is proceeded with, is determined".'.
116 Schedule 2, page 59, leave out lines 34 to 38 and insert for the words "ten days" "a note of appeal or of application for leave to appeal", and "the determination thereof" there shall be substituted, respectively, the words "two weeks", "an intimation of intention to appeal (or in the case of an appeal under section 228(1)(b) of this Act a note of appeal)" and "such appeal, if it is proceeded with, is determined"'.
117 Schedule 2, page 60 line 6, after 'leave' insert 'to appeal'.
118 Schedule 2, page 60 line 7, leave out 'and' and insert 'to appeal (or in the case of an appeal under section 228(1)(b) of this Act a note of appeal)";'.
119 Schedule 2, page 60 line 9, after 'leave' insert 'to appeal has been lodged'
120 Schedule 2, page 60 line 9, leave out "an intimation of intention"; 'and insert' "there has been such lodgement"; and
(v) for the words "determination thereof" there shall be substituted the words "appeal, if it is proceeded with, is determined".'.
121 Schedule 2, page 60 line 11, after words "'insert an appellant or applicant who has lodged'
122 Schedule 2, page 60 line 12, after 'leave' insert 'to appeal'
123 Schedule 2, page 60 line 13, leave out 'an intimation of intention' and insert 'a person who has lodged an intimation of intention to appeal (or in the case of an appeal under section 228(1)(b) of this Act a note of appeal)'.
124 Schedule 2, page 60 line 16, after 'leave' insert to appeal'
125 Schedule 2, page 60 line 17, after 'intention' insert to appeal (or, in the case of an appeal under section 228(1)(b) of this Act, note of appeal)'
126 Schedule 2, page 60 line 17, leave out 'and',
127 Schedule 2, page 60 line 19, at end insert'; and
(iii) at the end there shall be added the words"; and they shall be so dealt with if, there having such intimation, the appeal is not proceeded with.".'.
Lord MACKAY of CLASHFERN: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 115 to 127. These are all minor drafting amendments. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Mackay of Clashfern.)

COMMONS AMENDMENTS
128 Schedule 3, page 61, line 35, leave out 'and 453D' and insert 453D and 453E'
129 Schedule 3, page 61, line 44, leave out '453D' and insert '453E'
Lord MACKAY of CLASHFERN: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 128 and 129. These amendments give the High Court the power in summary appeals to substitute a verdict of acquittal on the grounds of insanity. By passing Amendment No. 114 your Lordships have ensured the retention of the High Court's power in solemn appeals to substitute a verdict of acquittal on the ground of insanity. In such a case the High Court would quash any sentence imposed and order that the appellant be detained in a state hospital or such other hospital as the court may specify. The High Court has this power at present when disposing of solemn appeals, but the power has never existed for summary appeals. The reason for this is not clear, but it is probably the case that solemn and summary have grown up somewhat independently of each other. It seems right that these two should be brought together. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments. —(Lord Mackay of Clashfern.)

COMMONS AMENDMENTS
130 Schedule 3, page 63, leave out line 44 and insert—
'(2B) Where a party neither attends nor secures that he is represented'
131 Schedule 3, page 63, leave out line 46, and insert 'shall nevertheless proceed.'
Lord MACKAY of CLASHFERN: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 130 and 131. These minor drafting amendments are necessary to make it clear tht the hearing on adjustments will go ahead even if the appellant and his solicitor are not present. This provision is necessary to avoid delays in the procedure and to ensure that proper importance is given to the hearing on adjustments. It does not in our view prejudice the rights of the appellant as, even if the judge rejects all his proposed adjustments, these will be attached to the stated case and be seen by the High Court.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Mackay of Clashfern.)

COMMONS AMENDMENTS
32 Schedule 3, page 66, line 29, after 'may' insert '1, subject to section 453D(1) of this Act,'
33 Schedule 3, page 66, line 44, after 'shall' insert 1, subject to section 453D(1) of this Act,"
Lord MACKAY of CLASHFERN: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 132 and 133. I have already spoken to these.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Mackay of Clashfern.)

COMMONS AMENDMENT
134 Schedule 3, page 70, line 6, leave out from 'lodged' to 'intimated ' and insert—

'(a) in a case where the note of appeal has not yet been sent under subsection (4)(a) above to the Clerk of Justiciary, with the clerk of court;

(b) in any other case, with the Clerk of Justiciary,

and'.
Lord MACKAY of CLASHFERN: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 134. This is a minor amendment which sets out the procedure for the abandonment at an early stage of appeals against sentences in summary cases. It is a useful addition to what is presently in the Bill.
Moved, That this House doth agree with the Commons in the said amendment.—(Lord Mackay of Clashfern.)

COMMONS AMENDMENTS
135 Schedule 3, page 70, line 14, after second 'may' insert ', subject to section 453(D)1 of this Act,'
136 Schedule 3, page 70, line 51, at end insert—
"Disposal of appeal where appellant insane
453D.—(1) In relation to any appeal under section 442(1)(a) of this Act, the High Court shall, where it appears to it that the appellant committed the act charged against him but that he was insane when he did so, dispose of the appeal by—

(a) setting aside the verdict of the inferior court and substituting there-for a verdict of acquittal on the ground of insanity; and

1876

(b) quashing any sentence imposed on the appellant as respects the complaint and ordering that he be detained in a state hospital or such other hospital as for special reasons the court may specify.

(2) The provisions of subsection (4) of section 174 of this Act shall apply to an order under subsection (1)(b) above as they apply to an order under that section.'.
137 Page 71, line 1, leave out `453D' and insert 453E'.
138 Schedule 4, page 71, line 40, after 'to' insert section 20B(2) of this Act and to'
139 Page 72, line 6, leave out '151A(3)' and insert '151(2)'.".
Lord MACKAY of CLASHFERN: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 135 to 139. These are consequential on amendments that have already moved.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Mackay of Clashfern.)

COMMONS AMENDMENTS
140 Schedule 4, page 73, line 13, after 'but' insert 'any'.
141 Schedule 4, page 74, line 6, leave out subsection (4) and insert—
'(4) Where there is a hearing under this section the accused (or all the accused as the case may be) shall attend it:
Provided that if the court so permits the hearing may proceed notwithstanding his (or their) absence.'.
7.4 p.m.
Lord MACKAY of CLASHFERN: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 140 and 141. These are both purely drafting amendments.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Mackay of Clashfern.)

COMMONS AMENDMENT
142 Schedule 4, page 74, line 19, leave out '20A(3)' and insert '20B'.
Lord MACKAY of CLASHFERN: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 142. This is consequential on Amendment No. 21.
Moved, That this House doth agree with the Commons in the said amendment.—(Lord Mackay of Clashfern.)

COMMONS AMENDMENTS
143 Schedule 4, page 74, line 19, after 'Act,' insert '(with any recification, authorised under subsection (4) of that section, incorpotated)'.
Lord MACKAY of CLASHFERN: My Lords, I beg to move that this House doth agree with the Commons in their said Amendment No. 143. This is consequential.
Moved, That this House doth agree with the Commons in the said amendment. —(Lord Mackay of Clashfern.)

COMMONS AMENDMENTS
144 Schedule 4, page 75, line 27, after '104' insert '(1)'.
145 Schedule 4, page 75, line 42, at end insert—
'(2) When the Clerk of Justiciary receives the record copy of the indictment he shall send a copy of the note of reasons to the convicted person or his solicitor and to the Crown Agent.
(3) Subject to subsection (2) above, the note of reasons shall be available only to the High Court and the parties.'.
Lord MACKAY of CLASHFERN: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 144 and 145. The effect of these two amendments is to require that, when a sheriff remits a case for sentence to the High Court, copies of the note giving his reasons for the remit should be provided to the defence and to the prosecution. Hitherto the sheriff has provided a note for the court but has not given copies of it to the parties. This matter was raised with the Secretary of State in representations from Mr. Ross Harper (an experienced Glasgow solicitor); and we agree that it is just and equitable that information of this kind which is before the sentencing judge should also be available to both parties.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Mackay of Clashfern.)

COMMONS AMENDMENT
146 Schedule 6, page 79, line 37, at end insert—
'9. In the application of section 64 of this Act to proceedings instituted before the coming into force of the Magistrates' Courts Act 1980, for the reference to section 91 of that Act in subsection (1) of the said section 64 there shall be substituted a reference to section 72B of the Magistrates' Courts Act 1952.
10. In the application of section 38A of the Criminal Law Act 1977 to the execution of extract convictions and warrants before the coming into force of the Magistrates' Courts Act 1980, for the reference to section 150(3) of the said Act of 1980 in the said section 38A there shall be substituted a reference to section 102(4) of the Magistrates' Courts Act 1952.'.
The Earl of MANSFIELD: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 146. This amendment is of a purely technical drafting nature.
Moved, That this House doth agree with the Commons in the said amendment. (The Earl of Mansfield.)

COMMONS AMENDMENT
147 Schedule 7, page 80, line 6, leave out 'persons' and insert 'not less'.
The Earl of MANSFIELD: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 147. This is a drafting amendment.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)

COMMONS AMENDMENTS
148 Schedule 7, page 81, leave out lines 14 to 21 and insert—

'(i) for the words "any part of the United Kingdom other than Northern Ireland" there shall be substituted the words "England and Wales";

(ii) for the words "that part of the United Kingdom" there shall be substituted the words "England and Wales"; and

(iii) the proviso shall cease to have effect; '.

149 Schedule 7, page 81, line 22, leave out '(5)' and insert '(5A)'.
150 Schedule 7, page 81, line 24, leave out '(5A)' and insert '(5B)'.
151 Schedule 7, page 81, line 33, leave out '(1) in the case of a person transferred from England and Wales.'
152 Schedule 7, page 81, leave out lines 37 to 39.
153 Schedule 7, page 81, line 49, at end insert—
'7A. In section 29(1) (removal for judicial purposes) after the words "young offenders centre" there shall be inserted the words ", young offenders institution".
7B. In section 30(3) (prisoners unlawfully at large) after the words "young offenders centre" there shall be inserted the words "young offenders institution".'.
154 Page 82, line 19, leave out from 'institution",' to end of line 20 and insert 'for the words "any part of the United Kingdom other than Northern Ireland" there shall be substituted the words "England and Wales";'.
The Earl of MANSFIELD: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 148 to 154. These amendments are consequential to Amendment No. 72.
Moved, That this House doth agree with the Commons in the said amendments. —(The Earl of Mansfield.)

COMMONS AMENDMENT
155 Page 83, line 36, after 'section' insert '205(3),'.
The Earl of MANSFIELD: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 155. Paragraph 17 of Schedule 7 already contains amendments to Section 62 of the Criminal Justice Act 1967, which deals with revocation of licences of prisoners who are convicted while on licence. This further amendment is required to cater for one other possible but unlikely eventuality—a murderer aged between 18 and 21 sentenced to imprisonment for life who is detained in a young offenders' institution.
Moved, That this House doth agree with the Commons in their said amendment.—(The Earl of Mansfield.)

COMMONS AMENDMENT
156 Schedule 7, page 83, line 39, at end insert—
'17A. In section 64(2)(a) (conditions in licences of persons transferred from another part of the United Kingdom, the Channel Islands or the Isle of Man), for
1880
the words "section 60" there shall be substituted the words "sections 60 and 61".'.
The Earl of MANSFIELD: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 156. This amendment rectifies for Scotland a minor defect in Section 64(2) of the Criminal Justice Act 1967.
Moved, That this House doth agree with the Commons in the said amendment. —(The Earl of Mansfield.)

COMMONS AMENDMENT
157 Schedule 7, page 84, line 45, at end insert—
'21A. In section 19(1) (prisoners before examination to have access to solicitor), the existing words after "arrest" shall be paragraph (a) of the subsection and after that paragraph there shall be inserted the following paragraph—
"(b) to be told what rights there are under paragraph (a) above and subsections (2) and (3) below.".
21B. At the end of section 28 (admission or refusal of bail after committal), there shall be added the following subsection—
"(3) For the avoidance of doubt, the provisions of section 26 of this Act and the foregoing provisions of this section apply whether or not the person is in custody at such time as he appears for the disposal of his application.".'.
The Earl of MANSFIELD: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 157. I will speak also to Amendments Nos. 161, 162 and 163. Amendments Nos. 162 and 163 and the first paragraph of amendment No. 157 introduce a requirement for the police to inform an arrested person of his right to have his solicitor informed of his arrest, and his other rights under Sections 19 and 305 of the 1975 Act. They parallel the requirement made in relation to detained persons by the group of amendments to Clauses 2 and 3 which we have already considered.
The other amendments in this group (No. 161 and the second paragraph of No. 157) are linked only in a fortuitous textual way to these amendments. Their purpose is to make clear that the courts have power to grant bail to accused persons who appear in court in fulfilment of an undertaking to appear, besides those who are already in custody. Some

1881
sheriffs have taken the view that, following the introduction of the Bail etc. (Scotland) Act 1980, bail is only competent in respect of persons who are in custody. This was not the intention of the 1980 Act, and these amendments to the 1975 Act make clear that bail may be granted whether or not the accused is in custody. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment. —(The Earl of Mansfield.)

COMMONS AMENDMENT
158 Schedule 7, page 85, line 47, at end insert—
'30A In section 179 (power of court, in solemn proceedings, to adjourn a case before sentence)—

(a) in subsection (1) there shall be inserted before the proviso the words "or ordain him to appear at the adjourned diet"; and

(b) in subsection (2), for paragraph (a) there shall be substituted the following paragraph—

"(a) review the order appealed against and either grant bail on such conditions as it thinks fit or ordain the accused to appear at the adjourned diet;".'.
7.11 p.m.
The Earl of MANSFIELD: My Lords, I beg to move Amendment No. 158 and to speak to Amendment No. 164. These are minor procedural amendments which correct an oversight in the Bail, etc. (Scotland) Act. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment. —(The Earl of Mansfield.)

COMMONS AMENDMENT
159 Schedule 7, page 86, line 16, leave out 'of the 1975 Act'.
The Earl of MANSFIELD: My Lords, this amendment and Amendment No. 167 are drafting amendments intended to remove unnecessary words. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)

COMMONS AMENDMENT
160 Schedule 7, page 88, line 5, leave out 'or (l)' and insert—
'(l) section 9(2) of the said Act of 1980 in relation to the penalty for failure to attend for precognition on oath;
(m) section 9(3) of the said Act of 1980 in relation to the penalty for refusal to give evidence, or for prevarication, during precognition on oath; or
(n)'.
The Earl of MANSFIELD: My Lords, it is necessary in times of inflation to make provision to index-link penalties to prevent their being eroded. This amendment would add to the penalties which may be increased in line with inflation, under Section 289D of the 1975 Act, the penalties under Clause 9 of the Bill. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)

COMMONS AMENDMENTS
161 Schedule 7, page 88, line 8, at end insert—
44A. At the end of section 298 (all offences to be bailable), there shall be added the following subsection—
"(3) For the avoidance of doubt, the foregoing provisions of this section apply whether or not the person is in custody at such time as he appears for the disposal of his application.".'.
162 Schedule 7, page 88, line 9, after solicitor),' insert '—(a)'.
163 Schedule 7, page 88, line 11, at end insert—
'(b) the existing words after "en-titled" shall be paragraph (a) of the section; and
(c) after that paragraph there shall be inserted the following paragraph—
"(b) to be told what his rights under paragraph (a) above are.".'.
164 Schedule 7, page 89, line 8, at end insert—
"51A. In section 380 (power of court, in summary proceedings, to adjourn a case before sentence)—

(a) in subsection (1) there shall be inserted before the proviso the words "or ordain him to appear at the adjourned diet"; and

(b) in subsection (2), for paragraph (a) there shall be substituted the following paragraph—

"(a) review the order appealed against and either grant bail on such conditions as it thinks tit or ordain the accused to appear at the adjourned diet;".'.
The Earl of MANSFIELD: My Lords, these amendments are consequential on Amendment No. 157. I beg to move them en bloc.
Moved, That this House doth agree with the Commons in the said amendments.— (The Earl of Mansfield.)

COMMONS AMENDMENT
165 Schedule 7, page 89, line 39, leave out from '409' to 'Provided' in line 41 and insert—
'(1) (payment of fine in part by prisoner), for the words from "by a number" to the end there shall be substituted the words "(or as the case may be further reduced) by a number of days bearing as nearly as possible the same proportion to such term as the sum so paid bears to the amount of the fine outstanding at the commencement of the imprisonment:'.
The Earl of MANSFIELD: My Lords, the words inserted by this amendment amend Section 409 of the 1975 Act in order to take account of the difference in approach to part-payment of fines introduced by Clause 49(1D) of the Bill. The inconsistency of approach which necessitated this amendment was pointed out by Sheriff Nicholson, to whom I am obliged. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)

COMMONS AMENDMENT
166 Page 89, line 45, leave out '"small debt court" there shall be substituted the words' and insert ' "poinding the sale", "ten free" and "small debt court" there shall he substituted, respectively, the words "poinding and sale", "14" and'.
The Earl of MANSFIELD: My Lords, this is a minor amendment which corrects an error in the 1975 Act and, secondly, extends the time limit before an order for poinding and sale, to recover an unpaid fine, takes effect from 10 to 14 days. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.— (The Earl of Mansfield.)

COMMONS AMENDMENT
167 Schedule 7, page 90, line 13, leave out 'of the 1975 Act'.
The Earl of MANSFIELD: My Lords, this is consequential to Amendment No. 159. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.— (The Earl of Mansfield.)

COMMONS AMENDMENT
168 Schedule 7, page 90, line 22, at end insert—
'62A. For section 436 (forfeiture of implements) there shall be substituted the same provisions as constitute section 233 (forfeiture of property).'.
The Earl of MANSFIELD: My Lords, this amendment brings Section 436 of the 1975 Act into line with the equivalent provision relating to solemn procedure, Section 223. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)

COMMONS AMENDMENT
169 Schedule 7, page 90, line 39, leave out from '(interpretation)' to end of line 41 and insert '—

(a) at the appropriate place there shall be inserted the definition" 'diet' includes any continuation of a diet;";

(b) in the definition of "impose detention" and "impose imprisonment", for the words "failing to do or abstain from doing anything required to be done or left undone" there shall be substituted the words "contempt of court"; and

(c) for the definition of "sentence" there shall be substituted the definition "'sentence', whether of detention or of imprisonment, means a sentence passed in respect of a crime or offence and does not include an order for committal in default of payment of any sum of money or for contempt of court.".'.

The Earl of MANSFIELD: My Lords, the purpose of this amendment is to ensure that references in the 1975 Act to sentences of imprisonment or detention are not generally taken as including the imposition of imprisonment for contempt of court or in default of payment of a fine. This point has arisen in particular con-

1885
nection with Clauses 40, 41 and 44 of the Bill. For example, as regards Clause 41, the amendment will secure that the restriction on imprisonment it introduces will apply only to direct sentences of imprisonment imposed on conviction of an offence but not to other forms of imposition or imprisonment, such as for contempt of court or in default of payment of fine or caution. This was the intention of the Clause as drafted, but this amendment is necessary to ensure that the intention of this clause, and of Clauses 40 and 44, is carried into effect. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)

COMMONS AMENDMENTS
170 Schedule 8, page 94, leave out lines 17 to 20
171 Schedule 8, page 95, line 44, column 3, at beginning insert 'Section 7.'
The Earl of MANSFIELD: My Lords, these two amendments are consequential and I beg to move them together.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)

LAW REFORM (MISCELLANEOUS PROVISIONS) (SCOTLAND) BILL [H.L.]
7.16 p.m.
The Earl of MANSFIELD: My Lords, I beg to move that the Commons Amendments be now considered.
Moved, that the Commons Amendments be now considered.—(The Earl of Mansfield.)

COMMONS AMENDMENT
[The references are to Bill [69] as first printed for the Commons]
1 Clause 1, page 2, line 42, after 'ineligible' insert 'or not qualified'.
The Earl of MANSFIELD: My Lords, this amendment ensures that the validity
1886
of a jury's verdict cannot be challenged on the grounds that one of the jurors was not qualified in terms of Clause 1(1). It therefore applies the same provisions in relation to persons who are not qualified as are secured in Clause 1(4) for ineligible and disqualified persons. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)

COMMONS AMENDMENT
2 Clause 3, page 4, line 10, after 'ineligible' insert 'or not qualified'.
The Earl of MANSFIELD: My Lords, this amendment provides that there should be the same penalty for serving on a jury when not qualified as there is for doing so when ineligible. I beg to move.
Moved, That this House doth agree with the Commons in the said Amendment.—(The Earl of Mansfield.)

COMMONS AMENDMENT
3 After Clause 4, insert the following new clause:
Finding of caution by intestates spouse.
'.In section 2 of the Confirmation of Executors (Scotland) Act 1823 (court to regulate caution to be found), for the words "executors-nominate; and in" there shall be substituted the words—

"(a) an executor-nominate; or

(b) an intestate's spouse who shall be executor-dative and has right, by virtue of sections 8 and 9(2) of the Succession (Scotland) Act 1964, to the whole estate.

In".'
Lord MACKAY of CLASHFERN: My Lords, this amendment introduces a new clause to the Bill, providing that where a person dies intestate and his whole estate goes to his surviving spouse by virtue of the prior rights provisions of the Succession (Scotland) Act 1964, the surviving spouse does not require to obtain a bond of caution to enable him or her to get confirmation as executor-dative. The clause was introduced during the Commons Committee stage by the Opposition, and it seems a very worthwhile improvement in the law in this subject. I beg to move.
Moved, That this House doth with the Commons in the said amendment.—(Lord Mackay of Clashfern.)

COMMONS AMENDMENT
4 After Clause 5, insert the following new clause:
Amendment of Judicial Factors Act 1849.
'.In the Judicial Factors Act 1849—

(a) section 5 (factor to lodge monies in one of the banks of Scotland) shall be amended as follows—

(i) for the words "fifty pounds" in both places where they occur there shall be substituted the words "five hundred pounds"; and

(ii) that section as amended by sub-paragraph (i) above shall be subsection (1) of that section, and after that subsection there shall be added the following subsections—

"(2) The Secretary of State may by order made by regulations amend subsection (1) above by substituting for any sum for the time being specified in that subsection such other sum as appears to him to be justified by a change in the value of money.

(3) The power to make regulations under subsection (2) above shall be exercisable by statutory instrument; and no such regulations shall be made unless a draft of them has been approved by resolution of each House of Parliament."; and

(b) in section 19 (accountant to make requisitions and orders on the factor) for the words "forty-eight hours" there shall be substituted the words "seven days".'

Lord MACKAY of CLASHFERN: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 4. Amendment No. 4 introduces another new clause. The purpose is to increase the amount of cash which a judicial factor is entitled to retain in his hands for day-to-day expenses, and to lengthen the period within which a factor may lodge objections to any requisition or order made upon him by the accountant of court. The clause was introduced during the Commons Committee stage. It replaced a clause which had been tabled by the Opposition, in which the Government made certain drafting changes. Again, this seems a
1888
worthwhile improvement on the existing law on the subject. My Lords, I beg to move.
Moved, That the House doth agree with the Commons in the said amendment.—(Lord Mackay of Clashfern.)

COMMONS AMENDMENT
5 After Clause 5, insert the following new clause:
Amendment of section 2 of Trusts (Scotland) Act 1961.
'.In section 2 of the Trusts (Scotland) Act 1961 (validity of certain transactions by trustees), for subsection (2) there are substituted the following subsections—
"(2) Nothing in subsection (1) of this section shall affect any question of liability between any of the trustees on the one hand and any co-trustee or any of the beneficiaries on the other hand.
(3) Without prejudice to the operation of subsection (1) of this section, where in relation to the trust estate or any part thereof a judicial factor thinks it expedient to do any of the acts mentioned in that subsection but the act in question might be at variance with the terms or purposes of the trust, he may, subject to the following provisions of this section, apply to the Accountant of Court for his consent to the doing of the Act.
(4) Where an application is made under subsection (3) of this section to the Accountant of Court for his consent to the doing of an act to which that subsection applies, he may grant the application subject to such conditions (including conditions as to price) as he thinks fit if—

(a) he considers that the doing of the act is in the best interests of the owner of the trust estate to which the judicial factor's appointment relates or of any person to whom the owner owes a duty of support; and

(b) he is satisfied—

(i) that the judicial factor is not expressly prohibited by the terms of his appointment from doing the act; and

(ii) that there has been compliance with the provisions of subsection (5) of this section and of any rules made there-under; and

(c) no objection is made to the doing of the act under subsection (5) of this section.

(5) A judicial factor proposing to make an application under subsection (3) of this section to the Accountant of

1889
Court shall notify such persons or such class or classes of persons as may be specified in rules of court in such manner as may be so specified of the proposed application, the act to which it relates, and of their right to object to him doing that act within such time and in such manner as the rules may specify, and the rules may make different provision in respect of different classes of judicial factors, and may make provision exempting a judicial factor or a class of judicial factors from giving notification under this subsection in such circumstances as the rules may specify.
(6) Where a judicial factor does any act in accordance with the consent of the Accountant of Court granted under subsection (4) of this section and in compliance with the provisions of this section and of any rules made thereunder, it shall be treated as being not at variance with the terms or purposes of the trust.".'
7.21 p.m.
Lord MACKAY of CLASHFERN: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 5. This amendment also introduces a new clause. It gives effect to the recommendations contained in the Scottish Law Commission's report on powers of judicial factors, which is their Report No. 59. The clause was appended to the Commission's report. The clause amends Section 2 of the Trusts (Scotland) Act 1961, by adding a provision to the effect that where a judicial factor acting with the consent of the accountant of court did any of the acts mentioned in specified paragraphs of Section 4(1) of the Trusts (Scotland) Act in relation to the estate under his charge, not being an act prohibited by the terms of his appointment, the factor would not be subject to liability on the ground that the act in question was at variance with the terms or purposes of his appointment. A provision on these lines would seem to introduce a worthwhile flexibility in the actings of judicial factors, and make it relatively easy for them to proceed in this area. The clause was introduced during the Commons Committee stage of the Bill by Mr. Peter Fraser. My Lords, I beg to move.
Moved, That the House doth agree with the Commons in the said amendment.—(Lord Mackay of Clashfern.)

COMMONS AMENDMENT
6 After Clause 7 insert the following new clause:
No jury trial in civil actions in sheriff court.
'.—(1) It shall not be competent to appoint a civil action to be tried before a jury in the sheriff court; and accordingly—

(a) in the Sheriff Courts (Scotland) Act 1907—

(i) section 31 (jury trial in sheriff court) shall cease to have effect; and

(ii) in Schedule 1 (rules for regulating procedure in the ordinary courts), rules 133 to 150 shall cease to have effect; and

(b) section 6 of the Sheriff Courts (Scotland) Act 1913 (procedure at jury trials) shall cease to have effect.

(2) Subsection (1) above, and Schedule 3 to this Act in so far as that Schedule relates to—

(a) section 3, 27(D) and 31 and rules 133 to 150 of the Sheriff Courts (Scotland) Act 1907;

(b) section 2 of the Jury Trials Amendment (Scotland) Act 1910;

(c) section 6 of the Sheriff Courts (Scotland) Act 1913;

(d) section 2 of the Interest on Damages (Scotland) Act 1958;

(e) section 1 of the Interest on Damages (Scotland) Act 1971; or

(f) section 40, and the reference thereto in section 41, of the Sheriff Courts (Scotland) Act 1971,

have no effect as regards any action which the sheriff has, before the coming into force of this section, appointed to be tried before a jury.'
The Earl of MANSFIELD: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 6. This clause, in effect abolishes trial by civil jury in the sheriff court. It is designed to replace new Clause 6, which was tabled by the Opposition. That new clause was technically defective. Nevertheless the principle was welcome to the Government and this new clause does no more than give effect to that principle. In so doing, it implements recommendation No. 44 of the Grant Report. My Lords, I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.— (The Earl of Mansfield.)
Lord McCLUSKEY: My Lords, perhaps I may say just one word about this amendment. I understand the reasons why this amendment has been brought forward. Until now, it has been compe-

1891
tent for an injured workman to obtain a civil jury trial in the sheriff court in an action of damages for personal injuries against his employer. I understand that this has not been very much used, but it has, in fact, been used and indeed I myself appeared in a great many cases of this kind some 20 years ago. But, of course, abolition was recommended by the Grant Committee and also, I think, by the Strachan Committee a little earlier for, essentially, administrative reasons. I do not think there has been any strong pressure since that time for the abolition of civil jury trial and I regret this, if it is the first step towards abolishing civil jury trials in the Court of Session.
I believe it is valuable to bring juries to court. It helps to keep the public in touch with the administration of justice, including justice in the civil courts, and it also helps to keep the law and its expression simple. So while I do not oppose this change, I rather regret it and I hope that it does not foreshadow any further attack upon the civil jury system in Scotland. I hope, in particular, that it does not foreshadow any attack upon the criminal jury trial, which is vitally important in the administration of criminal justice in Scotland. I trust that the Minister will be able to give me an assurance that the reasons which instruct this amendment are not valid in relation to the Court of Session, or in relation to criminal cases.
The Earl of MANSFIELD: My Lords, the noble and learned Lord has raised two very different points. In so far as civil law is concerned, in both Scotland and England jury trials have been gradually getting fewer and fewer in number, probably for good reasons. It was felt—and, indeed, it was felt and agreed by the Opposition—that the time had come to abolish trials by civil jury in the sheriff court. If such a thing were to extend to the Court of Session, various considerations would arise and I dare say that there would be very considerable debate. But there is absolutely nothing as between trials by jury in civil actions and trials by jury in criminal actions, and I cannot conceive of any Conservative Government trying to abolish criminal jury trials.

COMMONS AMENDMENT
7 After Clause 18, insert the following new clause:
"Amendment of Prescription and Limitation (Scotland) Act 1973.
. In the Prescription and Limitation (Scotland) Act 1973—
(a) after section 19 there shall be inserted the following section—
"Power of Court to override time-limits etc.
19A.—(1) Where a person would be entitled, but for any of the provisions of section 17 (as read with sections 18 and 19) of this Act, to bring an action, the court may, if it seems to it equitable to do so, allow him to bring the action notwithstanding that provision.
(2) The provisions of subsection (1) above shall have effect not only as regards rights of action accruing after the commencement of this section but also as regards those, in respect of which a final judgment has not been pronounced, accruing before such commencement.
(3) In subsection (2) above, the expression "final judgment" means an interlocutor of a court of first instance which, by itself, or taken along with previous interlocutors, disposes of the subject matter of a cause notwithstanding that judgment may not have been pronounced on every question raised or that the expenses found due may not have been modified, taxed or decerned for; but the expression does not include an interlocutor dismissing a cause by reason only of a provision mentioned in subsection (1) above".;
(b) in section 21(1) (transitional provisions), for the words "section 25(3)" there shall be substituted the words "sections 19A(2) and 25(3)";
(c) in section 22(6) (certain actions not to be tried by jury), for the words "or 19(1)" there shall he substituted the words ", 19(1) or 19A"; and
(d) in section 25(3) (effect as regards proceedings already brought), at the beginning there shall be inserted the words "Subject to section 19A(2) of this Act".".
Lord MACKAY of CLASHFERN: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 7.
Moved, That the House doth agree with the Commons in the said amendment.—(Lord Mackay of Clashfern.)
As an amendment to Commons Amendment No. 7:
Line 23, leave out from ("for" to end of line 26.
Lord FRASER of TULLYBELTON: My Lords, I beg to move Amendment No. 7A, as an amendment to Commons Amendment No. 7. This clause, as it stands at present, contains a very clear example of retrospective legislation, and I put down my amendment to try to remove the retrospective element in the legislation. I do not suppose that the casual reader, if there is one here, would have spotted the fact that it is retrospective, because the clause is somewhat obscure. It is not surprising, because it forms part of a group of legislation, an earlier example of which on exactly the same subject was described by the late Lord Reid as being,
"an Act which has a strong claim to the distinction of being the worst drafted Act on the Statute Book."
He said that because it was so obscure. That tendency is being carried on in this clause.
May I try to explain the point of my amendment? The general rule in Scotland, and also in England, is that actions of damages for personal injuries must be raised within three years after the date when the injuries were sustained. That means that if you have an accident in the street or in a factory on 1st January 1976, you must raise your action within three years after that, and before 1st January 1979. That works perfectly well as regards ordinary accidents, but it has never worked satisfactorily in the case of industrial diseases which you may not know anything about until the three years have expired.
A particular example which has caused most trouble is pneumoconiosis, but there are probably other industrial diseases where the same problem arises. Because of that, legislation has attempted in the past to make an exception in favour of diseases to the general effect that, if a person who is suffering from a disease has not realised that he has it, then the three years will run from the time when he realises that he has it. That is putting it very colloquially and very inaccurately. Legislation to that effect was passed both in Scotland and in England. That exception has not worked well either, and it was really that exception that was stigmatised by Lord Reid in the words that I quoted earlier.
There have been quite a number of cases where an action has been thrown out
1894
by the courts as being out of time, because it has not come within the terms of the Act, although people have felt that it imposed rather a hardship on the plaintiff. There was one example of that very kind of thing, in an action that reached this House last year. It was a case called McIntyre, with which I am sure the noble and learned Lord the Lord Advocate will be thoroughly familiar. That was a case of industrial disease and it was thrown out, because it did not come within the exception in what is now Clause 18. In these circumstances, this new Clause 19A has been introduced into this Bill for Scotland. It corresponds broadly to a very similar provision in the English Act. As your Lordships see at 19A the first subsection provides that the court may allow a person to bring an action out of time if it seems to it—that is, to the court—equitable to do so. In other words, Parliament has really given up trying and it says that if the court thinks it is fair you can bring the action out of time because legislation cannot deal with this. I do not commend it as an example of good legislation, but I am not concerned with that at the moment. I assume it is going to be acceptable to the House.
Subsection (2) provides that that provision will apply to accidents which happen in the future and also to any claim in respect of an accident in the past if a final judgment has not yet been pronounced upon the claim. That is to say, if there were an accident giving rise to a claim which happened, say, a year or two years ago and there is an action on foot now but no final judgment has been given, then the court can use its dispensing power under subsection (1). I do not object to that in principle.
One then comes to subsection (3) which starts fairly innocently by defining what is meant by a final judgment, and it quotes a well established definition: that it means a judgment which disposes of the whole action. There is nothing very difficult about that. Then come the words at the very end of subsection (3) which I wish to delete. They are the last four lines:
"but the expression"—
that is, the expression "final judgment"—
"does not include an interlocutor dismissing a cause by reason only of a provision mentioned in subsection (1) above".

1895
This means a final judgment shall not include a judgment dismissing the cause for being out of time. So although an action has been tried in the court, appealed to the Inner House of the Court of Session, appealed to your Lordships' House and finally dismissed for being out of time, it is not going to be reckoned as having been really dismissed and the action can now be revived by virtue of this provision, despite having been dismissed in reality.
That seems to me to be a particularly gross example of retrospective legislation. If an action has been thoroughly tried in the courts and the defenders have won, that should be the end of the matter. It is quite true that it may be thought to be a hardship on particular parties. I suppose that when the law is changed on this kind of subject hard cases do arise just at the change-over, but surely one cannot take note of them to the extent of allowing a case to be reopened when it has been properly disposed of and a final judgment given.
I have no doubt that there are rather extenuating circumstances which may be pleaded for showing why this provision should be allowed to go through, but I say at the moment that it raises a matter of quite important principle. It is for that reason that I beg to move the amendment which stands in my name.
7.34 p.m.
Lord McCLUSKEY: My Lords, I hope that this House will not support the amendment moved by the noble and learned Lord, Lord Fraser of Tullybelton. As he himself has made clear, the new Section 19A which is to go into the 1973 Act in effect is intended to bring the law of Scotland into line with the law obtaining in England since 1975. Nobody suggests that there is any sound reason why in this matter—the right to sue for damages for personal injuries—the law should be substantially different in the two jurisdictions. The new clause is rather simpler than the equivalent English section, Section 2D of the Limitation Act 1939, introduced into that Act by the 1975 Act. In one respect the Scottish draftsman has followed the traditional Scottish practice of not writing unnecessary guidelines for judges, and I hope that that principle
1896
will be supported because it seems to me to be a good one and is in accordance with the evidence of the Scottish judges to the Renton Committee.
I accept what the noble and learned Lord, Lord Fraser of Tullybelton, has said, that the clause is retrospective. He has pointed out the words which introduce the element of retrospection. I agree also that it is entirely right that this House should be very cautious about approving any retrospective provisions. They need to be very specially justified before they are approved. When the noble and learned Lord was supporting his amendment he said that if a case has been thoroughly tried that should be the end of the matter. The whole point is that the case is not thoroughly tried. The case does not get to trial on the true merits. It is the pursuer, the injured workman who is stopped from pursuing his claim on its merits because it is barred by being out of time, so the true merits do not necessarily fall to be determined by the court.
What prejudice arises if one enacts this retrospective legislation? The prejudice is perfectly easily definable. It is prejudice which is financial and it is prejudice which is likely to be suffered in 100 per cent. of the cases by those insurance companies which have employers' liability insurance arrangements with employers. I accept that such insurance companies may find themselves suffering financial loss, but in insurance terms it will be relatively trivial and they will be able to recover the loss by a fractional adjustment of premiums from most of the same employers. The prejudice to the injured workman if he cannot pursue his claim is relatively catastrophic. It is quite unfair that because the legislature did not move in time; namely, in 1975, a few Scottish workmen since then should suffer this catastrophic loss. On grounds of justice I believe that the balance is strongly in favour of the new provision, albeit it is retrospective.
The special provision to which the noble and learned Lord has drawn attention in the new subsection (3) is quite unusual. I believe that it is necessary to secure justice perhaps in only one case, but there may be more than one, and the noble and learned Lord himself was a party to the decision in the case of McIntyre which

1897
was decided in this noble House last November. I think that that was a case where the court was inclined to be sympathetic towards the claim that was put forward without espressing a final view, because that claim was not tried, but felt that because of this lack in the Scottish law the claim could not be proceeded with. I believe that one ought to recognise the justice of that end of any other case which is like it. There must be very few, and when the Government come to speak to this matter, I hope that they will be able to support me on that and justify, as I hope we can, retrospection in this particular instance.
Lord MACKAY of CLASHFERN: My Lords, the situation so far as the Government are concerned is that when this clause was originally prepared by way of help to a Member of the Opposition who proposed it, we did not intend it to cover the very matters which the noble and learned Lord, Lord Fraser of Tullybelton, now wants to take out. But this was a point about the clause which did not satisfy the honourable Member in another place who moved it and he put to us the point which I am now seeking to put to your Lordships.
As the noble and learned Lord, Lord Fraser of Tullybelton, has said, it is true that to grant this discretion is a form of retrospection because the time limit will have expired. There is no need for the discretion unless the time limit has expired. Granting the court a discretion after the expiry of the time limit is to that extent retrospective, but I must say, with all respect, that I do not see any greater retrospection in that basic provision of the clause than I do in allowing the court, in its discretion, to overrule or to displace the effect of the decision.
Let me take McIntyre's case. Mr. McIntyre pursued the case with vigour and eventually found himself in your Lordships' House. The decision in Mr. McIntyre's case was that the time limit had expired—nothing more than that. If Mr. McIntyre had been very well advised, who knows? He might have found that out without coming to your Lordships' House. He might have found it out by staying absolutely at home. Supposing that a person in Mr. McIntyre's position takes the trouble—as I think the
1898
noble and learned Lord would agree, it was not a particularly easy point which agitated the House in Mr. McIntyre's case—and decides that he wants to find out just what the situation is and persists right up to your Lordships' House, should he be penalised for persistence, whereas a man in exactly the same position as Mr. McIntyre, who stays at home, does not bother your Lordships and says your Lordships know what to do, can have the discretion exercised in his favour, while poor Mr. McIntyre cannot?
In my submission—and this is the argument that persuaded me—that would not be just. There is no reason to discriminate against somebody who has come to the court. The order of the court is a dismissal, which is not the sort of order which one expects to be absolutely final as between the parties, in the sense that absolvitor would be. I agree that for practical purposes apart from a clause like this it would be in fact, but in my submission if we are going to do justice and to be equitable in this matter it would be wrong to distinguish between these two cases. Retrospection I grant, but retrospection is in the whole clause and not in that particular case.
The other point that I should make is that this is all intended as a fairly interim solution. I think no one is satisfied with the basic structure underneath this, as the noble and learned Lord has said. The Scottish Law Commission are examining this matter and they have put out a memorandum for consultation. I hope that in the not too far distant future basic proposals for reforming the law in this area will come forward. Therefore, this is in the nature of an interim solution with this bad structure to cope with. We have tried to modify its worst evils by a discretion.
The other point I should like to make is that so far as I can judge there would be very few cases affected by this. The total number of reported cases in which time bar has played a part since 1960, I think, is only 13, and in the last 10 years I think there have only been four. Presumably most people affected by the time bar have elected to stay at home and not go to the court. So the total number of cases affected is extremely small and I respectfully suggest to your Lordships that it

1899
would be equitable and charitable to grant the court a discretion—which is all it is—to consider these matters. The court will no doubt take account of all the circumstances in deciding whether to exercise its discretion.
I hope that, in the light of these extenuating circumstances, the noble and learned Lord will feel able to withdraw the amendment.
Lord FRASER of TULLYBELTON: My Lords, I cannot say that I am wholly convinced by the arguments on either side; the noble and learned Lord, Lord McCluskey, seemed to say that it was a rich insurance company against a poor man and the noble and learned Lord the Lord Advocate said that there were very few cases. With great respect I do not consider either of those arguments to be very good for breaking the rule that there should not be retrospective legislation. However, having ventilated that, with the leave of the House I beg leave to withdraw the amendment.
Amendment to the amendment, by leave, withdrawn.
The Earl of SELKIRK The Earl of SELKIRK moved Amendment No. 7B as an amendment to Commons Amendment No. 7.
In line 24, after ("interlocutor") insert ("made on a date before this Act came into force").
The noble Earl said: My Lords, I am sure we are extremely grateful to the noble and learned Lord the Lord Advocate for explaining what this is all about. If anyone looked at the Hansard Reports of the other place they would see that there was no explanation. It was put in at the very end of the discussion and after the Minister in charge had said, No he said, Yes, tabled the amendment and did not explain why. I suppose this is about as good a case of the old saying "Hard cases make bad law" as one could possibly find.
I am going just a step further, but may I first say that this is of consequence to the insurance industry. The noble and learned Lord, Lord McCluskey, said that the insurance industry is very rich and the poor man is very poor. The insurance industry can cover anything, provided they know what they are covering. If
1900
we extend the insurance cover by legislation that is grossly unfair in principle. We might one day do it in a very big way which would have an extremely adverse effect on the insurance industry. I do not think one should forget that. Parliament is very much inclined to copy; what it has done one day, it will do another. We are opening up a closed case. We are opening up the finality of a decision at law, and in many respects finality is more important than justice. One of the great things about the law is that you get an answer and you know where you stand. I think this is being bridged here and it could be extended to all sorts of things: contracts of service, damage to property, and many other things it could be extended to if we once start adopting the principle that a decision at law is not final. Those are important points.
I do not want to damage the hard case, but I do want to restrict the damage which could be extended to it. As has been said here, the cases are very few and of course it has been explained that someone who has taken the case to law and failed should not be worse off than someone who has not done so. I have therefore suggested, particularly under the cover, that this is a temporary provision. Who can say that any law is temporary? Who can forecast when laws are going to be amended? Who can say for certainty that the recommendations of the Law Commission, which is now examining this whole question of prescription and limitation, will ever be observed or carried out? I am asking the Government to put a limitation—a limitation in time and to say that when this law comes into operation new cases cannot then be added to the claim under this clause for egalitarian treatment. That is all the Government want. There are one or two hard cases, of which the case of McIntyre is an example—and there may be a few others who will want to raise this, but new cases will not come into it. This is an attempt—and I suggest, with respect, quite a reasonable attempt—to allow the hard cases to be maintained but not allow the law to be unduly damaged. In those circumstances, I ask the noble and learned Lord to restrict the operation of the last sentence of this to cases which have already been in existence, and new cases can be brought under it. It is in those terms that I beg to move.
Lord MACKAY of CLASHFERN: My Lords, I think, in practical terms, the noble Earl's amendment would allow the cases that the noble and learned Lord, Lord Fraser, was speaking of. Once this discretion is in operation, then this part of the clause will have no effect at all, because if somebody is arguing about limitation then he will always add in his case as an alternative, just in case he fails on that, that the court should exercise its discretion. In other words he will say, "Assuming that I am time barred please exercise your discretion in my favour." So while I very much appreciate the help which the noble Earl has given us on this occasion, I do not think that this particular amendment is necessary to achieve the purpose, because once the Act comes into force as a practical matter a person who did not use the discretion at the right stage would simply be doubling the number of applications that he was making to the court. So I do not really think that can possibly happen. Therefore, I think the effect of the noble Earl's amendment is in fact already achieved in the clause—and of course I am very anxious, if possible, to avoid the clause having to be re-examined anywhere else. In the light of that explanation, I hope that the noble Earl will feel able to withdraw his amendment.
The Earl of SELKIRK: My Lords, the noble and learned Lord the Lord Advocate is saying in effect that no new case can be re-opened at a later date. In other words when this Act comes into force the effects of my amendment will come into natural operation. If that is the case—and of course I accept what he has said—I beg leave to withdraw the amendment.
Amendment to the amendment, by leave, withdrawn.

COMMONS AMENDMENT
8 After Clause 18, insert the following new clause:
"Solicitors' Discipline Tribunal.
.In the Solicitors (Scotland) Act 1980—
(a) in section 53 (powers of Scottish Solicitors' Discipline Tribunal)—

(i) in subsection (2)(c) for the words "£250" there shall be substituted the words "£2,500"; and

1902

(ii) at the end there shall be added the following subsection—

"(8) The Secretary of State may, by order made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament, amend paragraph (c) of subsection (2) by substituting for the amount for the time being specified in that paragraph such other amount as appears to him to be justified by a change in the value of money.";
(b) in Schedule 4, Part I (constitution of the tribunal)—

(i) in paragraph 1(a), for "5" and "7" there shall be substituted, respectively, "10" and "14";

(ii)in paragraph 1(b), for the word "two" there shall be substituted "4"; and

(iii)in paragraph 2, for the words "on the recommendation of the Council shall be eligible for reappointment" there shall be substituted the words "in the case—

(a)of a lay member, may be re-appointed by the Lord President; and

(b)of a solicitor member, may be so re-appointed on the recommendation of the Council".".

7.52 p.m.
The Earl of MANSFIELD: My Lords, this clause increases the maximum fine which may be imposed by the Scottish Solicitors' Discipline Tribunal from £250 to £2,500. Secondly, it enables the Secretary of State to change by statutory instrument, subject to the Negative Resolution procedure, the amount of the maximum fine which may be imposed. Thirdly, it increases the membership of the tribunal so as to facilitate it sitting in two divisions; and, fourthly, it enables the Lord President of the Court of Session to reappoint lay members of the tribunal in the same way as he appoints them in the first place. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
Lord McCLUSKEY: My Lords, there is one point on which I would welcome the assistance of the noble Earl. I see from the Solicitors (Scotland) Act 1980 that it received the Royal Assent on 1st August 1980, and this amendment is

1903
brought forward before the end of this year. I wonder if he could assist us by explaining to us why it was found necessary to amend an Act which had received the Royal Assent within the past few months?
The Earl of MANSFIELD: My Lords, I think the noble and learned Lord will have heard the word thrown over the Dispatch Box by the other noble and learned Lord. It is a matter of consolidation, I am advised. In that case it may appear to make sense to the noble and learned Lord, Lord McCluskey.
Lord McCLUSKEY: My Lords, I do agree; if it is consolidation it does make perfect sense.

COMMONS AMENDMENT
9 After Clause 18, insert the following new clause:
"Solicitors' clients' accounts.
. In the Solcitors (Scotland) Act 1980—
(a) in section 36(1) (interest on client's money)—

(i) the word "wither" shall cease to have effect;

(ii) after paragraph (a) there shall be inserted the following paragrpah be inserted the following paragraph—

("(aa) to keep in—

(i) a deposit or share account with a designated building society; or

(ii) an account showing sums on loan to a local authority,

being in either case an account kept by the solicitor in his own name for a specified client, money so received; or", and
(iii) in paragraph (b) after the words "paragraph (a)", there shall be inserted the words "or (aa)";
(b) in section 42(3) (exceptions to provisions regarding distribution of sums in client's bank account), at the end there shall be added the words "; nor shall any regard be had for such purposes to any—

(a) deposit or share account with a designated building society; or

(b) account showing sums on loan to a local authority,

being in either case an account kept by the solicitor in his own name for a specified client."; and
(c) in section 65(1) (interpretation), after the definition of "the Court" there shall be inserted the following definition "'designated building society' means a building society designated for the purposes of section 1 of the House Purchase and Housing Act 1959 (designation of building societies for investment by trustees etc.) by the Chief Registrar of Friendly Societies;'.".
The Earl of MANSFIELD: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 9. This clause remedies a lacuna in the Solicitors (Scotland) Act 1980 by extending to building society and local authority accounts the same conditions on payment of interest and protection of clients' funds in the event of sequestration et cetera which apply to accounts held in a bank. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)

COMMONS AMENDMENT
10 After Clause 18, insert the following new clause:
'Contributions from persons receiving legal aid.
. In the Legal Aid (Scotland) Act 1967—
(a) in section 3 (contributions from assisted persons), after subsection (1) there shall be inserted the following subsection—
"(1A) Regulations may provide that there shall be substituted—

(a) for the yearly sum specified in subsection (1) above, such other yearly sum as may be prescribed by the regulations;

(b) for the capital sum so specified, such other capital sum as may be so prescribed; and

(d) in section 15 (regulations), in each of subsections (7) and (8), after the words "3(1)" there shall be inserted the words "or (1A)".'
The Earl of MANSFIELD: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 10. This clause restores to the Secretary of State the power to adjust the lower income limit for civil legal aid—that is to say, the level below which an assisted person is not liable to make a contribution from income. The Secretary of State was inadvertently deprived of

1905
this power by the provisions of the Legal Aid Act 1979. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)

COMMONS AMENDMENT
11 Before Clause 19, insert the following new clause:
'Expenses
.There shall be defrayed out of moneys provided by Parliament any increase attributable to this Act in the sum payable out of moneys so provided under any other enactment.'
The Earl of MANSFIELD: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 11. This is the standard form of money clause necessary in any Bill whose provisions involve the expenditure of public money. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)

COMMONS AMENDMENTS
12 Schedule 1, page 15, line 24, leave out 'and employees of solicitors in private practice' and insert '; (bb) apprentices of, and legal trainees employed by, solicitors'.
13 Schedule 1, page 16, line 15, leave out 'their staffs' and insert 'persons employed to assist such directors in the performance of such of their functions as relate to probation schemes within the meaning of section 27 of that Act'.
The Earl of MANSFIELD: My Lords, beg to move that this House doth agree with the Commons in their Amendments Nos. 12 and 13. Perhaps I may move them en bloc. Amendment No. 12 makes apprentices and legal trainees the only members of a solicitor's staff who are to be ineligible for jury service. Amendment No. 13 makes ineligible for jury service only those social workers and their staff who are definitely engaged on probation work. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)

COMMONS AMENDMENT
14 Schedule 1, page 16, line 19, leave out '10' and insert '5'.
The Earl of MANSFIELD: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 14. This amendment restricts the period of ineligibility for jury service to five years after an individual has ceased to be actively concerned with the administration of justice as a member of one of the categories in Group B. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)

COMMONS AMENDMENT
15 Schedule 1, page 16, leave out lines 23 to 28.
The Earl of MANSFIELD: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 15. As my noble friend Lord Selkirk has been in communication with me both by letter and verbally, and I know that he has not been altogether satisfied with the way in which this amendment appears before your Lordships' House, it may be proper if quite shortly I go into a little of the history.
The Opposition in another place put down an amendment to this effect on 9th July and it was debated on 17th July, and there was, therefore, very little time for the Government to consider it, let alone to take soundings from interested parties. In the event the Government came to the conclusion that the amendment should be accepted, and among the reasons for this course of action were, first, that there might well be some ministers who might wish to serve as jurors and there were really no compelling grounds for denying them eligibility so to serve. Secondly, it was felt that the deliberations of a jury with the presence of a minister who was happy to serve would be likely to benefit rather than suffer. And, thirdly, it was felt that no unwilling minister would have to serve on a jury, for example, if he felt that his pastoral responsibilities might create unreasonable difficulties in his considering the claims of justice alone. Those were the considerations, or some of them, behind which the Government accepted this amendment.
May I just say what the amendment does. These amendments, and No. 17 which is consequential, make ministers

1907
of religion excusable as of right instead of being ineligible for jury service. The matter which I would like to emphasise is that ministers are excusable as of right; they do not need to give any reasons if they do not wish to serve on a jury; they merely need to indicate the nature of their profession. It is fair to say that the Churches, quite rightly and understandably were concerned about all this, but the points which I have brought out to your Lordships were put to all the bodies and the persons who made representations about the amendment. The Church of Scotland, the Episcopal Church in Scotland and the Roman Catholic Church in Scotland have all now indicated that they are content with the provision as inserted at the behest of the Opposition during the Committee stage of the Bill in another place.
I can give noble Lords this assurance, that it is intended to send to all potential jurors along with the jury citation a notice designed to ensure that each is made aware of his rights as to excusal and how to exercise them. The notice will also set out clearly the categories of persons, first, not qualified, secondly, ineligible, and, thirdly, disqualified for jury service. So I hope that my noble friend—when he reflects on the fact that a right is being given to ministers rather than any right being taken away, and the fact that they will be given not only every opportunity not to serve on a jury if they do not wish to do so but also notice of their right that they do not have to serve—will feel reasonably happy with the way in which the amendment comes before your Lordships. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
The Earl of SELKIRK: My Lords, I must express my gratitude to the noble Earl for explaining the position in which the Government have found themselves. I am bound to say that, from the point of view of an observer, it did seem to me an extraordinarily casual approach to a quite serious subject. The Government's policy, which is what I would move here, is clearly stated by the Minister who introduced the Bill. What it said was this. It was felt by the Thomson Committee,
1908
and the Government agreed, that it was appropriate that ministers of religion should be considered ineligible because of the severe problem that would arise for them if required to take part in jury consideration.
But where I must blame the Government is for accepting an amendment in the House without taking the trouble to consult with any of the major Communions in Scotland. The noble Lord said it was considered. In fairness, I must say that the discussion in the House was highly unemotional and not very detailed in examination; it was very casual. This matter could have been put off quite easily to the Report stage, during which time the various Communions could have been consulted and the position explained to them, and they would not have needed to be disturbed on this account. I say this because I believe it is of the utmost importance that the confidential relations between the big Communions in Scotland and the Scottish Office should be absolutely close. It was because I had doubts as to whether this was the case—indeed, it was quite clear it was not the case because they were taken by surprise by what the Government have done—that I felt disturbed about it.
In the circumstances the noble Earl has described, I do not want to cause him more bother than is necessary, but I hope I have at least made him appreciate that this is a matter which any citizen in Scotland regards as of the utmost importance. I hope he will maintain the close relations which are essential. In these circumstances I shall not press this matter any further.
Lord FERRIER: My Lords, I am very glad to have heard what my noble friend the Minister has said on this matter. I came here to listen to what was happening and I agree with my noble friend Lord Selkirk that this matter now seems adequately solved.

COMMONS AMENDMENT
16 Schedule 1, page 18, leave out line 11.
The Earl of MANSFIELD: My Lords, this amendment, No. 16, removes from opticians any right to claim excusal from jury service. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)

COMMONS AMENDMENT
17 Schedule 1, page 18, line 12, at end insert—
'GROUP DD
Ministers of religion etc.
(a) persons in holy orders;
(b) regular ministers of any religious denomination; and

COMMONS AMENDMENTS

18 Schedule 3, page 20, line 23, column 3, at beginning insert In section 3, paragraph (q).'

19 Schedule 3, page 20, line 32, column 3, at end insert In section 27(D) the words "not being an interlocutor fixing a diet for jury trial".'

20 Schedule 3, page 20, line 33, column 3, leave out 'Section 30' and insert 'Sections 30 and 31'

21 Schedule 3, page 20, line 37, at end insert—

10 Edw. 7 & 1 Geo. 5. c. 31.

The Jury Trials Amendment (Scotland) Act 1910.

'and rules 133 to 150. In section 2, the words from "or (b)" to "1907".

2 & 3 Geo. 5. c. 28.

The Sheriff Courts (Scotland) Act 1913.

Section 6.'

22 Schedule 3, Page 21, line 30, at end insert—

'6 & 7 Eliz. 2. c. 61.

The Interest on Damages (Scotland) Act 1958.

Section 2.'

23 Schedule 3, Page 21, line 34, at end insert—

'1971 c. 31.

The Interest on Damages (Scotland) Act 1971.

Section 1(2).

24 Schedule 3, Page 21, line 35, column 3, leave our 'Section 39' and insert 'Sections 39 and 40'

25 Schedule 3, Page 21, line 37, column 3, after '39' insert', section 40'

25A Schedule 3, Page 21, line 45, at end insert—

'1973 c. 52.

The Prescription and Limitation (Scotland) Act 1973.

In section 22(6) the words ", wether in the Court of Session or the sheriff court,".'

The Earl of MANSFIELD: My Lords, I beg to move Amendments Nos. 18 to 25A en bloc. They are all consequential to Amendment No. 6, which has already been spoken to. They repeal statutory provisions regarding jury trial in civil actions in the sheriff court. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)

COMMONS AMENDMENTS
26 In the Title, line 5, after 'persons;' insert 'to dispense with caution as regards certain executors-dative;"
27 In the Title, line 7, after trustee; 'insert 'to amend provisions of the Judicial Factors Act 1849 and the Trusts (Scotland) Act 1961 relating to the actings of judicial factors;
28 In the Title, line 24, after 'marriages;'
1910
(c) vowed members of any religious order living in a monastery, convent or other religious community.'
The Earl of MANSFIELD: My Lords, this amendment, No. 17, is consequential to Amendment No. 15. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
insert 'to amend the provisions of the Prescription and Limitation (Scotland) Act 1973 relating to limitation of actions; to amend the law relating to the constitution and powers of the Scottish Solicitors' Discipline Tribunal; to make further provision as regards Scottish solicitors' clients' accounts; to enable amendments to be made to provisions of the Legal Aid (Scotland) Act 1967 relating to contributions from assisted persons;'.
The Earl of MANSFIELD: My Lords, I beg to move Amendments Nos. 26 to 28 en bloc. These amendments make the appropriate amendments to the Long Title to cover the insertion in the Bill of new Clauses 5, 7, 8, 23, 24, 25 and 26. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)

TENANTS' RIGHTS, ETC. (SCOTLAND) AMENDMENT BILL [H.L.]
8.4 p.m.
The Earl of MANSFIELD: My Lords, I beg to move that this Bill be now read a second time. Noble Lords will recall the almost interminable discussions we had in June and July about the Tenants' Rights Etc. (Scotland) Bill and the broadly comparable Housing Bill for England and Wales. A number of noble Lords were very much concerned with the question whether those Bills as they then stood took sufficient account of the need to retain in public ownership houses which had been specially adapted at public expense for the needs of the elderly. As we all know, there were substantial discussions in another place.
The outcome of these discussions was that the Government decided shortly before both Houses rose for the Recess that there was merit in the arguments which noble Lords, among others, had brought forward for some extension of the category of houses which were to be excluded in the English Bill from the right to buy provisions. The Government accordingly signified in the other place that they were prepared to have the Housing Act amended to provide for such an extension, and appropriate provision is included in the Housing Act which has recently been brought into operation. By the time these decisions were taken there was no procedural way in which changes could be made to the Scottish Bill. The Government decided, however, on full consideration of the matter that it would be desirable to extend the category of exclusions in Scotland also, even at the cost of requiring an amending Bill to be introduced at a very late stage in the Session. That is the background to the Bill which is before the House this evening.
Noble Lords will recall that the Scottish Act at present recognises two distinct categories of housing which are specially adapted for the elderly. Those houses which are fully sheltered in the sense of having a call system and a resident warden are wholly excluded from the right to buy by Section 1(11)(c) of the Act. In relation to the different category of houses which have substantial adaptations, but where
1912
there is neither a call system nor a warden, there is provision in Section 4(4) of the Act for the local authority to exercise a right of pre-emption once the house has been sold to the first tenant purchaser should he subsequently decide to sell.
What this Bill does is to give local authorities the opportunity, in relation to the second category of houses, to seek to refuse to sell in the first place. If they believe that the houses in question are within the category that is defined in the new Section 3A which is being inserted into the principal Act, in other words, houses which have facilities substantially different from those of an ordinary dwelling-house and have been designed or adapted for occupation by an elderly person whose special needs require accommodation of the kind provided, they may apply to the Secretary of State for his authorisation to refuse to sell the houses. This procedure is modelled on the procedure now embodied in the English Housing Act.
We expect that the number of houses affected will be rather more than 6,000. The main category will be those known as amenity houses, in other words, houses which are physically in all respects like fully sheltered houses but lack only the call system and the resident warden. These are houses which have been recognised by departmental circulars as a desirable part of provision for the elderly since 1975, and a number of recommendations as to their design are embodied in the recently revised Part 5 of the Scottish Housing Handbook. My right honourable friend the Secretary of State intends to make clear administratively to local authorities, if this Bill is enacted, that his authorisation may be expected as a matter of routine in response to all applications under the Bill which relate to houses which are beyond argument amenity houses in that recognised sense.
There will also, of course, be a smaller number of houses which have been adapted on an ad hoc basis for the elderly, and the Secretary of State's authorisation is likely to be given in respect of a number of these also. I trust that noble Lords will find this small amending Bill acceptable in that it gives effect to undertakings given in response to concern expressed widely when the principal Bill was going through both Houses.

1913
Clause 2 of the Bill makes a number of minor technical adjustments, most of which come somewhere in the area between the concern of the draftsman and the concern of the printer. I do not think I need say anything about these but I should perhaps mention, in relation to the amendment at Clause 2(e), that after taking advice my right honourable friend and I consider that the reference to "heritable proprietor" in Section 1(11) of the principal Act is satisfactory. In face of representations, however, that it could be misunderstood, and believing that there would be advantage in putting the interpretation of the expression beyond doubt, we have taken the view that we should use the vehicle of this amending Bill to meet these representations. The consequences of the Bill for public expenditure and for public service manpower are minimal and in the circumstances I commend the Bill to the House. My Lords, I beg to move.
Moved, That the Bill be read 2a. —(The Earl of Mansfield.)
8.10 p.m.
Lord ROSS of MARNOCK: My Lords, I think that we should congratulate the Government on keeping a promise that they would bring forth amending legislation as soon as possible. We should further congratulate them on having created a record, in that they have introduced a Bill in one Session and in the same Session they have found it necessary to amend it, and not just as regards that part in respect of which a promise was given, but as regards various other matters.
The fact is that in view of the way in which legislation is now handled, even if we had another five stages for dealing with it we would have another five stages of minor amendments because these days legislation is treated with a rather haphazard concern for accuracy. I was fascinated by the last series of amendments that we discussed to discover that it was inserting a clause to which we were asked to agree on the basis that it was a standard clause. They are even missing out standard clauses in their considerations.
But it is also a tribute to the mismanagement by the Government in another place because it is not willingly that the Government are producing this particular
1914
Bill—they are doing so because they were forced to do it. Part of the trouble stems from here because, in its wisdom, your Lordships' House passed an amendment extending exclusions in respect of elderly people in England and refused to pass exactly the same amendment in respect of Scotland. When it went to another place the Government originally planned to throw out the English amendment. They then discovered, of course, that they were lost for time and, your Lordships may remember that on 5th August the House of Commons sat up all night. The Government lost a day's business and there followed negotiations between the Leader of the House and the Minister of the Environment, other people concerned, the Opposition and, of course, even the Lords were drawn into it. As a result the Government changed their mind and, although they did not like the actual amendment that came from the Lords, they decided to put down an amendment of their own. At col. 562 Mr. Heseltine said:
"The Government have considered the amendment and have decided to widen the exclusions so that genuine elderly persons' accommodation is excluded. We shall accordingly invite the House—with your permission, Mr. Speaker, and with that of the House to consider a manuscript amendment to that effect."
Earlier the Leader of the House had made it clear at col. 531:
"If an agreement in principle is reached that Scotland and England should be treated equally in this matter, how that is done becomes a matter of technicalities."
Notice the phrase, it says:
"Scotland and England should be treated equally".
When, at col. 562 Mr. Heseltine was asked by Mr. Hattersley about the Scottish/English position, he said:
"My right hon. Friend the Secretary of State for Scotland has authorised me to say, as regards the Tenants' Rights Etc. (Scotland) Bill, that he will facilitate legislation to make a change along the lines that I have announced".
So we are supposed to be getting virtually equal treatment in England and Scotland. I cannot congratulate the Government on their definition and legislating for equality of treatment.
I do not want to make a long speech because these are matters to which we shall return in Committee. However, I had hoped that we would not have a Committee stage, that the Government

1915
meant what they said and were going to treat Scotland and England equally. In England there is no question of it just being for certain elderly people because there the Minister of State must be satisfied that the dwelling-house is designed or specially adapted for occupation by persons of pensionable age and that it is the practice of the landlord to let it only for occupation by such persons. Why then did the Scottish Office not carry out the pledge that was given by the Leader of the House and by the Secretary of State for the Environment, and simply put those words into the amending Scottish legislation. They have not done so. It says:
"This section applies to a dwelling-house which has facilities which are substantially different from those of an ordinary dwelling-house".
I do not know what an ordinary dwelling-house is. I know what a dwelling-house is because it is defined, but not "an ordinary dwelling-house". I suppose we all think that the house we live in is an ordinary dwelling-house, but all such houses are different and probably ordinary and yet they meet the needs of those who occupy them. I do not know what the words mean. I do not see that they are necessary. However, that is not the end of the matter for it goes on to say:
"and which has been designed or adapted for occupation by an elderly person"
as compared with:
"designed or specially adapted for occupation by persons of pensionable age".
How does one define an elderly person? There is no definition here. So, from that particular point of view I think that it is regrettable that the Scottish Office has run itself into trouble and certainly to my mind has not completely carried out the promise. Certainly it was not given by the Scottish Office. The last person to speak about this was not from the Scottish Office; it was the Leader of the House of Commons and the Secretary of State for the Environment. However, their good faith is at stake here and also the pledge that was given, in my opinion, to Parliament as a whole.
However, we are not finished. Having loaded up this obstacle of:
"substantially different from those of an ordinary dwelling-house"—
1916
they put up the other brick because it says:
"designed or adapted for occupation by an elderly person".
Then there is reference to:
"whose special needs require accommodation of the kind provided by the dwelling-house."
So, there are three hurdles erected which are entirely different and only one of them slightly approaching what was said in the English Bill.
The point is that we gave the Government the opportunity during the Tenants' Rights Bill to put this right and they did not take it. They have pledged to put it right now and this is what they have produced. It really is not good enough. So I thank the Government for having carried out their one pledge to bring in legislation. They have done it, but they have brought in the wrong legislation. I had better warn them; the Scottish Office will not be popular with the Prime Minister, for when this goes to another place, as it must, for Second Reading, Committee stage, Report and Third Reading, it will be held up by quite unnecessary speeches—unnecessary in the sense that they would have been unnecessary if the Government had carried out their own particular pledge.
Then we have the provision that the application from the councils of the housing authorities in England to their Secretary of State is to be made within, I think, one month after service of the application to purchase. One month in Scotland; in England, six weeks—the landlord has a period of six weeks of the service of a notice claiming to exercise the right to buy. Here, in this legislation, which is supposed to be running on all fours with the English legislation, it is one month. I do not know why it is, but the Minister of State at the Scottish Office does not seem to trust the Scottish local authorities. That is there twice, so I hope that the Government will appreciate why I am impelled to table amendments at the Committee stage to bring about this equality of treatment.
I noticed what the Minister of State said about" heritable proprietor". There are all sorts of other little changes—amendments to the Tenants Rights Bill—which have been found to be necessary. They are not all consequential on what we are doing in this Bill. They are just

1917
mistakes that have been discovered after all this lengthy process. On the question of the heritable proprietor, am I right in thinking that this proposal is in response to some statements that have been made in Dundee, that they have found a loophole in the Bill? As I understood the Minister, he said that it was not really necessary, but they would include it just in case. That is what he said. Is that related to Dundee and a loophole that they claim to have found? If he had been the chairman of the Conservative Party, he would have got up and congratulated Dundee upon having found the loophole. Of course, it depends on the kind of loophole—whether the loophole is in the Finance Bill or in the Tenants' Rights Bill. However, it is interesting that we have these amendments. We shall have an opportunity to go into them further at the Committee stage.
I am sorry to disappoint the noble Lord, but some noble Lords on the Liberal Benches, some on the Independent Benches, and some on our Benches, with some support from the Conservative Benches, urged the Government to give us the same kind of provision as they gave to England in respect of exclusion of old people's homes. They did not do it. Again, they did the wrong thing. I am sorry to say that they look like doing the wrong thing again, unless we put it right at the Committee stage. In the meantime, of course, we shall let the Second Reading go through.
8.23 p.m.
Viscount THURSO: My Lords, like the noble Lord, Lord Ross of Marnock, I have to welcome the arrival of this little Bill in your Lordships' House, but deplore its niggardly outlines. The noble Lord drew out attention to the pledge given in another place that Scotland and England would be treated equally. As he pointed out, that pledge was given by the Leader of the House of Commons in answer to a Question by my right honourable friend Mr. David Steel. He said, and I quote from column 528 of the Commons Hansard of 6th August, 1980:
"On the Housing Bill, it is vital that Scotland and England should be treated equally in these matters."
I certainly endorse what was said by the noble Lord, Lord Ross of Marnock, about the equal treatment of old people's
1918
houses. But one category of house that has been totally left out is the house specially adapted for disabled persons. Yet if we look at the Housing Act 1980, we find in Schedule 1, "Exceptions to Right to Buy";
"The dwelling-house has features which are substantially different from those of ordinary dwelling-houses and which are designed to make it suitable for occupation by physically disabled persons".
This is a totally different kind of house which is included in the English Act and which is not being included in this Bill. It is a very expensive matter for local authorities to adapt houses of any sort for physically disabled persons. They have a duty to keep a certain stock of these available for persons who have to live in wheelchairs and who have other disabilities which require special facilities within the house.
It is obviously ridiculous that these houses should be sold off to people who may not continue to hold them in occupation for physically disabled persons, because expensive concrete ramps may have been installed and expensive bathrooms may have been fitted. It is ridiculous that these should pass out of the housing stock of local authorities, which would then be forced into the position of having to create these houses anew. Very often these houses have been provided for people with exactly the same motives as this Government's in seeking to provide people with the right to buy. They are trying to make someone's lifelong home into a home which they can continue to occupy.
After this has been done, there is no reason why they should have any special privilege to pass the house on to someone else, or if they are unfortunate enough to have to go into other accommodation, why they should specially be able to cash it in. They will have had very special facilities installed at great public expense for them, and I do not think that most of them would ask for those houses to go out of the local authority housing stock; they would want them still to be available for the use and occupation of the disabled. Therefore, it is ridiculous to make these houses available so that they can, in fact, be sold out of the housing stock.
There is yet another category which is perhaps implied in the English Act,

1919
although it is not specifically stated in the wording of this little Bill; it is the old person's house which has been placed in a special location. During the Committee stage debate I pointed out how extremely important it was to old people to have available to them houses which are near the centre of the community, where they can easily get to the shops and to the post office to collect their pensions; where they can easily be visited by their relatives, and so forth. These houses may not be extraordinarily houses except in so far as they are one or two-apartment houses, but they have been specially bought, designed and sited by the local authorities so as to provide for this very special human need.
It is ridiculous to say that the occupants of these houses would be disadvantaged in some special way if they were not able to buy the two-apartment house in the centre of town, to which they had been moved—probably from some other house—so as to give them the special advantage of being near the centre of the community. It is a pity that that was not recognised in the drafting of the Bill.
Like the noble Lord, Lord Ross of Marnock, and his colleagues on the Opposition Benches, we, too, shall hope to bring amendments, and possibly to support amendments tabled by the noble Lord, with the object of making a suitable stock of houses for disabled persons, for old people and for the disabled elderly continuously available in every community in Scotland without undue expense and difficulty. That will be our object, and I hope that we shall succeed. If we succeed, we shall be doing no more than helping the Government to honour their promise to treat England and Scotland equally in the matter of housing.
The Earl of MANSFIELD: My Lords, I suppose that it was too much to expect an enthusiastic welcome to the Bill from the noble Lord, Lord Ross, though I had hoped for better things from the noble Viscount, Lord Thurso.
If the allegation is that the Government, my right honourable friend or I have in any way resiled or reneged on an undertaking given in another place, I refute it and refute it with some indignation. It is a serious matter to make these allegations
1920
and to throw them across your Lordships' Chamber. I was waiting for the allegations to be backed up by some fact or proof. That, of course, has not come about.
It is all very well for the noble Viscount, Lord Thurso, to start talking about other types of housing such as housing for the disabled. If he reads column 562 of the Official Report in another place and if he is aware of the debates that took place, he will know that the Secretary of State for the Environment said that genuine elderly persons' accommodation would be excluded.
The interminable discussions that we had on housing for the disabled in the latter part of July and the early part of August form no basis of the Bill. There was no indication, still less an undertaking, given in respect of them. If the noble Lord is determined to debate the Bill in Committee and to have a substantive Committee stage, I hope that he will not go into avenues which have been debated in considerable detail in your Lordships' House on Second Reading, in Committee, on Report and on Third Reading.
The Bill reflects fairly the undertaking that was given by my right honourable friend. I know that the phraseology that is used in the two Bills is different. It has been different throughout. If I may say so in the absence of my noble friend Lord Bellwin, the wording which has been used in our Scottish Bill is infinitely superior to the wording in the English measure.
I was concerned, as the noble Lord well knows, not to allow him, especially where definitions were concerned, to open the thing up when the Tenants Rights Etc. (Scotland) Bill was passing through your Lordships' House in order that local authorities that are not disposed to obey the law might take advantage of any imprecise definitions to enable them, as I think I said in a rather over-graphic way, to drive a coach and horses through the legislation.
I am going through these matters so that on reflection noble Lords on the Opposition Benches will not find it necessary to have a great Committee stage. Let us see what the alleged differences are between the English and Scottish measures. The noble Lord

1921
points to the six weeks or one month in which the local authority, as it were, has to react. I agree that the English Act says one thing and the Bill says another. We must go back to Section 3 of the Act, which lays down the procedures which a local authority may adopt if it wishes to dispute the tenant's right. Therefore, the period of one month fits in harmoniously with Section 3. The fact is that it follows the Scottish pattern in other forms of refusal and not the English. I might say that they do not have the same framework as we do. Nor is the citizen nearly so well informed as to his rights or how he has to set about exerting them.
Lord ROSS of MARNOCK: Exercising them.
The Earl of MANSFIELD: I say that with some local authorities not far from where the noble Lord lives it will be an exertion rather than an exercise. I do not mean Dundee. Anyway, it does not matter. The framework within which the citizen is going to act is much better laid down in our measure than in the English one. I do not see that that is either here or there. The second point concerns the definitions. Although the wording is different in the two definitions, I say that in the end they mean precisely the same thing. It is necessary to go back to Section 4(4) of the Act.
We are giving the local authorities in Scotland more freedom and more flexibility than they have in England. That is because in this type of housing they have the right not to sell at all. Secondly, they have the right or the duty to sell with a right of pre-emption that they can exert. Thirdly, they have the right to sell with no such restriction. If we were going to define the type of housing word for word in baby language consistent with the English Act, it would mean a false definition which would be totally unjustified.
I hope that on reflection the noble Lord will recognise the wisdom of what I say. I repeat that the wording may be different but that the effect of the definition is the same. It may be that the noble Lord has difficulty in deciding in his own mind what an elderly person is, but the phrase runs through the Act and there is really nothing difficult about it.
Lord ROSS of MARNOCK: Well, tell me.
The Earl of MANSFIELD: An "elderly person" depends upon the circumstances of the case. It is not necessary to have rigid definitions. It is the housing that is the subject at issue, not the person. The third difference between the Scottish and English measures lies in the phrase which is in the English measure but not in the Scottish where the local authority is, as it were, excused from its duty or practice to let the house to the elderly. We have no such provision in Scotland. Therefore, to that extent the Scottish definition is less onerous than the English one.
I see the noble Lord shaking his head in a horizontal manner. What I have said is so whatever he says. I do not think that I can take the matter very further at this stage. I say that within the wording that we have adopted, which runs right through the Act, the Bill substitutes in Section 3A a new definition that will exclude that sort of housing. Instead of making it, as it were, subject to the right of pre-emption, it will remove it altogether from the tenant's right to buy. I can only recommend the Bill to the House and invite your Lordships to give it a Second Reading.
On Question, Bill read 2a, and committed to a Committee of the Whole House.