Lords Sitting of 29 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 Norwich.

THE WESTMINSTER HOSPITAL'S FUTURE
Lord SEGAL: My Lords, I beg leave to ask the Question which stands in my name on to Order Paper.
The Question was as follows:
To ask Her Majesty's Government on what date, after the decision taken by the University of London, they are likely to adjudicate on the future of Westminster Hospital.
The MINISTER of STATE, DEPARTMENT of EDUCATION and SCIENCE (Baroness Young): My Lords, my right honourable friend the Secretary of State for Social Services has asked the London Advisory Group to consider the future pattern of hospital services in central London. The group will be submitting its advice in due course, in the light of the University of London's decisions on the future of the medical schools.
Lord SEGAL: My Lords, while thanking the noble Baroness for that reply, may I ask whether she is aware that she has not really answered the Question and given a likely date? Are the Government aware of the harm being caused by the uncertainty that hangs over this hospital's future, and is this uncertainty not bound to affect the morale of the hospital staff at all levels and likely to affect the patients as well? Would not the wisest course be for the Government to leave well alone and resist the temptation to make cuts in all directions at the risk of destroying a valuable and irreplaceable hospital?
Baroness YOUNG: My Lords, I am aware of the worry and anxiety that uncertainty causes in a situation like this, but perhaps I should make clear that there has never been any suggestion that the
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Westminster Hospital should close. My right honourable friend the Secretary of State for Social Services has made that clear on many occasions. It is now clear that there is little or no support for the merger proposed with St. Thomas' Hospital, but the role the hospital will eventually play will depend on decisions about the future of the medical school, which has still to be determined, and on the advice of the London Advisory Group.
Lord SEGAL: Yes, my Lords, but is not the Minister aware that a dismembered and truncated hospital is unlikely to maintain the standards it has proudly achieved in the past? Would it not be wiser to keep the hospital at its present standard and size rather than to inflict any changes on it in the future?
Baroness YOUNG: My Lords, I note what the noble Lord has said on this matter and I understand that the senate of the university is considering the matter now and that the court will consider it next week. In the meantime, I am sure the noble Lord will be the first to appreciate that a teaching hospital and a medical school are closely interdependent and that if one changes character so must the other.
Lord REIGATE: My Lords, has my noble friend noted a recent speech by the Secretary of State for Social Services in which he said it was still the Government's target to recruit 4,080 doctors a year but that that target had not yet been achieved? In these circumstances, does it make any sense to close a medical school which is producing 100 doctors a year at low cost and with very high academic standards?
Baroness YOUNG: My Lords, I entirely recognise the importance of my noble friend's remarks, but the fact is that the Flowers Working Party, which is making recommendations about medical schools in the University of London, is an internal working party of London University, and decisions on its recommendations are essentially a matter for the university, which is responsible for its own internal organisation.
Lord WELLS-PESTELL: My Lords, I hope the House will feel it is proper for

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me to intervene in this matter, as I am a member of the London Advisory Group. Is it not a fact that everybody involved in this matter is fully cognisant of the tremendous contribution which the Westminster Hospital has made and realises that this is a matter which will receive every attention? And are not the Government fully aware of the fact that very careful consideration will be given to the matter which is the subject of this Question?
Baroness YOUNG: My Lords, I wish entirely to confirm what the noble Lord has said. I shall of course draw the remarks that have been made this afternoon to the attention of my right honourable friend the Secretary of State for Social Services.
Lord SOMERS: My Lords, is the Minister aware that, while many of us in this country entirely support the Government's policy on the necessity of making cuts, we feel very strongly that they are tending now to make cuts that are not in the interests of the public?
Baroness YOUNG: My Lords, while noting what the noble Lord has said, perhaps I may make it quite clear that before a decision is taken on the Westminster Hospital a decision must first of all be reached on the question of the medical school; the matter will then be referred to the London Advisory Group and will then be considered by my right honourable friend the Secretary of State. So there are a number of stages before the decision will be taken.
Lord SEGAL: My Lords, may I ask the noble Baroness to say whether the Habakkuk Advisory Group will be kept in being after it has submitted its report, in order to avoid a repetition of the disastrous results of the reorganisation which took place in 1974?
Baroness YOUNG: My Lords, my understanding of the position is that the committee under the chairmanship of Sir John Habakkuk will be reviewed and the continuing need for the group will be considered again in mid-1981.

APPRENTICESHIP TRAINING GRANTS
2.43 p.m.
Lord ROCHESTER: 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 augment the funds now available to the Manpower Services Commission to enable companies training more apprentices than are required for their own future needs to receive increased grants from the commission.
The MINISTER of STATE, DEPARTMENT of EMPLOYMENT (The Earl of Gowrie): My Lords, the Government believe that it is primarily for employers to assess and to meet their training needs, and that training supported by public funds should be clearly related to prospects of employment at the end of the training. The Manpower Services Commission is helping to support some 25,000 apprenticeships and other forms of long-term training provision this year. This includes 1,500 grants which were made available only in July, and once they have been taken up the commission will be considering the scope and necessity for further action.
Lord ROCHESTER: My Lords, I thank the noble Earl for that reply so far as it goes. Is he aware that for one of our most reputable companies the current cost of training a single apprentice over a period of four years is now £24,000, of which the company receives back in grant from the Manpower Services Commission only £3,000? Is the noble Earl further aware that the competitive position of that company is now such that its ability to continue in what it conceives to be the national interest to train more apprentices than are required for its own needs is now in grave jeopardy?
The Earl of GOWRIE: My Lords, I am aware of what the noble Lord, Lord Rochester, says. I should point out to him that industry is also very properly anxious that interest rates should be brought down as fast as possible, and that would be difficult to do if there were placed on the Exchequer additional costs

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where training is concerned of a type and variety that our overseas industrial competitors look to industry itself to meet.
Lord LEE of NEWTON: My Lords, would the noble Earl agree that at a time such as this this item must be at the top of any list of priorities? Are we not now in a situation in which there is a huge unemployment problem involving unskilled people and an unsatisfied demand for very many skilled operatives? Until we get that balance right we can never return to a period of a decent level of employment.
The Earl of GOWRIE: My Lords, I am in complete agreement with the noble Lord, and I think that for many years our general training position in this country, again in comparison with our competitors, has not been very satisfactory. The Government are looking at the overall provision. However, the point I wish to make to the noble Lord and to the House is that it is in the overwhelming interests of industry itself that it should engage in training—and all our competitor industries do engage in training. The Government are supplementing it to a considerable degree: £41 million a year, roughly, for apprenticeships alone, as well as an additional placing for new electronics and computer training. Nevertheless, the burden must fall primarily on industry.
Baroness SEEAR: My Lords, would the noble Earl not agree that training represents an essential investment, yet one which at the moment a great deal of industry simply cannot afford? Is there not a considerable difference between cutting current consumption and cutting investment of a vital kind? The case for investment in training surely continues.
The Earl of GOWRIE: My Lords, it is very much my view that industry cannot afford not to make this essential investment, and of course it will not be very long until industry will be needing the skilled trainees in order to take account of the upturn.
Lord ROCHESTER: My Lords, the noble Earl linked one of his replies to my supplementary question to the matter
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of interest rates. Are we to understand that in so far as the Government find themselves unable to contribute more to the cost of the training of which I have spoken, they are proposing to make an immediate and substantial reduction in the rates of interest that are now crippling great British international companies, on which our whole future depends?
The Earl of GOWRIE: My Lords, I fear that the noble Lord is indulging in a contradiction. He is asking for additional public expenditure on the one hand and for reduced rates of interest on the other. Sadly, those two things are incompatible.
Lord UNDERHILL: My Lords, is it not short-sighted to leave this matter solely to the needs of industry, as the Minister suggested? In view of the repeated talk of the need to prepare for recovery, should not the Government take the lead in this matter?
The Earl of GOWRIE: My Lords, we do not leave it solely to industry. I said that the lion's share must of course fall upon industry, as it always has done. But we make very substantial contributions to mitigating bottlenecks and shortages; as I said earlier, where young people alone are concerned it is to the tune of £41 million a year. Where overall training is concerned, including that of the adult unemployed, we spend very much more than that, around £300 million a year.

EEC PREFERENCES ON AGRICULTURAL PRODUCTS
2.48 p.m.
Lord DRUMALBYN: 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 undertake to press in the Council of Ministers for wider agricultural product coverage in the EEC's Generalised Scheme of Tariff Preferences in 1981 than that currently proposed by the Commission.
Lord TREFGARNE: My Lords, Her Majesty's Government consider that the

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Commission proposals for improvements in the agricultural sector of the Generalised Scheme of Preferences do not go far enough. In the current round of negotiations at working level in Brussels, we, in common with Germany and the Netherlands, have submitted proposals for further concessions, aimed in particular at benefiting the poorest and least developed countries.
Lord DRUMALBYN: My Lords, in welcoming very much my noble friend's reply, may I ask him to confirm that the Commission intends that no agricultural product included in the proposed GSP product list will be dropped in the five-year period, 1981 to 1985? Will my noble friend press for an assurance that during that comparatively long period products can be added to the list? I have in mind those from the least developed countries in particular; for example, Pakistan rice. Will my noble friend also press for an assurance that the common interests of the least developed countries and the consumers in the Community will be fully taken into account, in the light of what Commissioner Haferkamp has described as this very complex and delicate balancing exercise?
Lord TREFGARNE: It is indeed a complex and delicate exercise, my Lords, and, if I may say so, that was a rather complex supplementary; but I can give my noble friend the assurances for which he asks.
Lord KILMARNOCK: My Lords, may I ask the noble Lord whether the Government consider that it would be desirable eventually to introduce a system of complete graduation from the scheme for very competitive countries in particular products, which, on the whole, was the view taken by your Lordships' subcommittee which studied this question?
Lord TREFGARNE: My Lords, did not fully grasp the gist of the noble Lord's supplementary question, but certainly the position needs to be kept under continuous review and the problems arising from competitive countries, as the noble Lord put it, is certainly one that we need to look into.
Lord WILSON of RADCLIFFE: My Lords, is it the Government's view that
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the Commission's GSP proposals for 1981 for industrial products would be more or less than those in the present scheme?
Lord TREFGARNE: My Lords, the effect of the proposals would be to tighten up the scheme against the better off and more competitive beneficiary countries, but, overall, a new scheme would be more liberal.

YOUTH EMPLOYMENT AND TRAINING
2.51 p.m.
Baroness ELLIOT of HARWOOD: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will make a progress report on their plans for finding jobs and training places of all kinds for young people.
The Earl of GOWRIE: My Lords, the Government's economic policies are designed to bring down inflation and create an economic climate in which investment and growth will stimulate an expansion of employment for young people and other workers. In addition, in the six months ending on 30th September this year over 160,000 young people were helped by the Manpower Services Commission's youth opportunities programme. At least a quarter of a million young people will be helped by Easter 1981. It is also expected that some 25,000 young people will be supported in apprenticeship training under the training for skills programme in the youth opportunities programme. Other special employment measures are currently being reviewed, and decisions about their shape and size in 1981–82 will be announced as soon as possible.
Baroness ELLIOT of HARWOOD: My Lords, may I congratulate the Government on this programme, which seems to be going extremely well and is very successful? In fact, I hope it could be enlarged even further; and possibly we

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might even get some help from the EEC in the training of young people, for they also must be anxious to see that young people are given an opportunity for a good start in life.
The Earl of GOWRIE: My Lords, I am grateful for what my noble friend has said. The YOP has indeed been successful, and our records show that up to 70 per cent. of young people find work immediately after leaving the schemes. We are in receipt of aid from Europe, to which we have, of course, substantially contributed. Perhaps "aid" is the wrong word, but we are in receipt of funds through the European Social Fund for Training, and that affects the provisions for young people in the assisted areas.
Baroness GAITSKELL: My Lords, will the Minister explain why it is that when we listen to the one o'clock news we continually hear that young people cannot find jobs? Therefore, his optimistic Answer really does need to be explained.
The Earl of GOWRIE: My Lords the optimism of my Answer was related to the success of the youth opportunities programme. It was not a comment on the general employment prospects for young people; that is another matter altogether. The general employment prospects for young people are linked to the general employment prospects for everybody, and they can be improved only by bringing down inflation and by restoring this country's competitive position.
Baroness DAVID: My Lords, may I ask the Minister whether he is satisfied that the youth opportunities programme will be able to take all the young people who have been unemployed for six months or so after they have left school in the current year? May I ask as a further supplementary whether there is liaison between his department and the DES about the use of careers officers and careers teachers in schools, so that the young people get sent in the right direction for training?
The Earl of GOWRIE: My Lords, taking the second part of the noble Baroness's supplementary first, I should like to pay a tribute to the work of the
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careers service, which has succeeded in about 90 per cent. of the placings on to the youth opportunities programme; and we are helping that service by earmarked special provisions from my own department for extra staff and the rest. As to the first part of the noble Baroness's supplementary, for the second year running the MSC has substantially met its undertaking to last year's jobless school-leavers to find them a place on the YOP before Easter of this year, and I would anticipate that we shall be able to meet the same target by Easter 1981.
Lord HUNT: My Lords, is the Minister aware—I certainly hope he is—of the exceptionally serious situation in regard to the unemployment of young people in the North-East? Is he also aware—I do not suppose he is—that I was there only a couple of weeks ago to discover that anything up to 50 per cent. of school-leavers are remaining unemployed for up to 12 months? Does this not add particular emphasis to the hope expressed by the noble Baroness, Lady Elliot, that, if at all possible, more should be done under the youth employment programme?
The Earl of GOWRIE: My Lords, I have myself on a number of occasions visited the North-East, and I shall be going again to look at the problems of youth employment in that area, and also at the working of the special programmes to which my noble friend Lady Elliot's Question originally referred. I am at the moment confident that we will meet our targets and service the needs of young people in the youth opportunities programme. If we look like not doing so, we shall of course return to it as a matter of first priority.
The Earl of ONSLOW: My Lords, can the noble Earl give an undertaking that the money which is received from the European Social Fund will be used in addition to British Treasury money, as opposed to being used to top up cash limits?
The Earl of GOWRIE: My Lords, my noble friend, as is his wont, is steering me down a very knotty path. It could be argued that the European Social Fund money is simply cash limited Treasury money in the first place.
Lord BETHELL: My Lords, is my noble friend aware of the special problems of long-term unemployment in areas of urban decay, such as the London Borough of Brent, and would he not agree that the EEC Social Fund has a special role to play in retraining and training schemes in such areas, especially since we in this country gain 27 per cent. of the funds from the EEC Social Fund?
The Earl of GOWRIE: My Lords, I appreciate what my noble friend has said. A problem that we have with the Social Fund is that it beams the money towards regions of special difficulty, and it defines those regions rather more widely than we do, which would mean that in the case of the London Borough of Brent (though I am acutely aware, as is my noble friend, of the problems there) that region would be considered too small, or as existing simultaneously with a more prosperous region, such as the rest of the South-East, to warrant consideration under the Social Fund. That is a problem we have, but I have been taking this up within the tripartite standing committee in Brussels.
Lord SPENS: My Lords, will the Minister give us an idea of the average length of time it takes for an employer who applies under the youth opportunities programme to obtain the services of an employee? I ask this, bearing in mind that I know of a case where the employer applied at the beginning of August and only last week was sent a very large envelope through the post, costing 31p in postage, which contained the contract and a lot of "bumf" as well which did not appear to be very relevant to the situation.
The Earl of GOWRIE: My Lords, I would need special notice to give a precise answer as to the average time taken, but, off the cuff, I think it is round about four weeks, which, when one considers the scale of this programme, seems to me to be pretty good going.
Lord ROCHESTER: My Lords, in completing their plans for helping young people will the Government bear in mind that, to judge from the position in the part of Cheshire in which I live, unemployment has increased even more, proportionately, among those aged between
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19 and 24 than among those aged between 16 and 18?
The Earl of GOWRIE: My Lords, I am glad the noble Lord, Lord Rochester, has raised that, because I did not really deal with it when my noble friend Lord Bethell talked about the longer-term unemployed. We are very concerned about this, and we are reviewing the provision for the longer-term unemployed. I would hope that the longer-term unemployed might be usefully engaged in helping to clear up areas of urban dereliction which make such a depressing atmosphere for investment and growth.
Lord HATCH of LUSBY: My Lords, may I ask the noble Earl a question which seems to be particularly appropriate to the Question asked by the noble Baroness Lady Elliot. Has he considered whether in this period of rapidly rising youth unemployment it would be worth while getting together the large number of charitable organisations like Oxfam in this country and seeing whether they cannot attract the services of at least a proportion of the large number of young people who are at present without work?
The Earl of GOWRIE: My Lords, when I first suggested some things rather along the lines of the noble Lord's supplementary question, that the young unemployed might engage in voluntary work, the roof rather fell in around my ears and it was suggested that I was directing labour. I am glad to say that it is an idea which is gaining increasing support, and I am glad that the noble Lord seems to subscribe to it.
Lord KILMARNOCK: My Lords, can the noble Earl say whether the Government have completely rejected the whole idea of training for stock which, as I understand it, is a prominent feature of the system very successfully practised in West Germany?
The Earl of GOWRIE: My Lords, that pertains rather to the Question asked earlier by the noble Lord, Lord Rochester, but the MSC helps employers through the IPTB system to take on more apprentices than they need, and that could be described as a form of training for stock.

DINNER
Lord DENHAM: My Lords, it may be for the convenience of the House to know that dinner will be available at the usual time this evening, although it is not proposed that there shall be a dinner adjournment of the House.
IMPRISONMENT (TEMPORARY PROVISIONS) BILL
Brought from the Commons, read la having been printed pursuant to Standing Order No. 47.

BUSINESS OF THE HOUSE
The LORD PRESIDENT OF THE COUNCIL (Lord Soames): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That, if the Imprisonment (Temporary Provisions) Bill is brought from the Commons, Standing Order No. 43 (No two stages of a Bill to be taken on one day) be dispensed with for the purpose of enabling the Bill to be taken through its remaining stages this day.—(Lord Soames.)
On Question, Motion agreed to.

IMPRISONMENT (TEMPORARY PROVISIONS) BILL
Standing Order No. 43 having been dispensed with (pursuant to Resolution):
3.4 p.m.
The LORD CHANCELLOR (Lord Hailsham of Saint Marylebone): My Lords, I rise to move that this Bill be now read a second time. We have a difficult and, in some ways, a distasteful day's business in front of us, but it is nonetheless an absolutely essential one. My first task should, I think, be to suggest how we may make the best use of the limited time available. As your Lordships will remember, I was on the Woolsack throughout the Statements by my noble friend Lord Belstead and my noble friend the Leader of the House and, if I may say so, I was particularly struck and particularly grateful for the understanding
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way in which the Government's difficulties were received and accepted by the House. If I may single out the leaders in this House of the Opposition parties, I was particularly grateful for the contributions from the noble and learned Lord, Lord Elwyn-Jones, his noble friend Lord Boston of Faversham and the noble Lord, Lord Wigoder. Nevertheless, both the noble and learned Lord, Lord Elwyn-Jones and the noble Lord, Lord Wigoder, stressed the necessity of as careful an examination of the provisions of the Bill as time allowed; and, if I may say so, I agree with their points of view.
Subject to the better wisdom of the House—and the matter is entirely in your Lordships' hands—I myself would favour a relatively short Second Reading debate, to which my noble friend Lord Belstead will reply, followed by a clause-by-clause discussion on Committee, since each clause separately raises different problems. My right honourable friend the Home Secretary has already outlined in another place the background of the present emergency. I shall therefore not repeat here what he said yesterday, but there are one or two things which I think I ought to say which have not been said before.
First, let me stress what I believe to be the overriding duties of the Government, the court system and those responsible for the prisons to the nation as a whole. I mention them in what I conceive to be a descending order of importance. Of course, our overriding duty is the safety of the law-abiding public. Every community has a potentially dangerous minority, but ever since Magna Carta we have protected the law-abiding public by due process of law. This ensures that the dangerous minority is identified only after a proper trial by due process in front of an independent judiciary after the application of a rigorous standard of proof, and using custodial sentences only as a last resort. Once they have been identified and incarcerated, we also owe a duty to the public to ensure that dangerous criminals do not escape while serving their sentences.
That I believe to be our first duty in this respect; but I must add, and add immediately, that we also owe a duty to those who are deprived of liberty. During their incarceration, we all have a duty to

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treat them humanely and not to subject them to squalid and degrading conditions. That is a duty which, in part, we delegate to our prison officers. In the past, I must say that as a nation we have not altogether succeeded in performing that duty. We live in a democracy and there are votes in building hospitals and schools, but there are no votes and there is much expense in building prison accommodation. I believe that the noble and learned Lord, Lord Elwyn-Jones, the Labour Government and certainly I, when I was Shadow Home Secretary in the past, have all spoken in public and in private of the dangers we were running by taking a shortsighted but perhaps electorally attractive view of this fact. My Lords, to some extent we are now reaping the reward of years of neglect, although we have now a realistic building programme which my right honourable friend the Home Secretary will carry forward through this decade. If I may be allowed to say so, I think that my right honourable friend is entitled to gratitude and not criticism for his far-sightedness and humanity in this respect.
Therefore, we do not need, in view of our past neglect, to speak in terms of excessive harshness of those who have borne the brunt of the trouble—and they are of, course, the prison officers. They are dedicated men and although we differ from them—or at least I differ from them—I would prefer to speak in muted terms. In other respects, both the Home Secretary and his Labour predecessor, Mr. Merlyn Rees, have also deserved well. In order to investigate the grievances of the prison officers, Mr. Rees set up the May Committee and my right honourable friend announced on the day of the publication of its report that he would implement in full its findings on pay and allowances. Under no pressure, he also entered into negotiations with the Prison Officers' Association for a new duty system. That new duty system, when it comes into force, will prevent a repetition of the grievances.
But after the May Committee there remained two grievances, one which was confined to Liverpool and which involved disputed questions of fact which have since been duly investigated by my noble friend Lord Belstead, and one which affected meal breaks in one but not both
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of the two duty systems now in force. Both of these grievances were ventilated before the May Committee. After the implementation of the May recommendations the second, if allowed, would have involved an additional improvement in existing conditions which was not recommended by Mr. Justice May. Neither, in my view—and here I must express myself firmly—merited the degree of industrial action with which we are now faced.
Since the May Report my right honourable friend has used the full weight of his authority to better conditions in prison, both for those incarcerated and for those employed in the prison service. Again, I would say that for this he deserves both gratitude and respect. The industrial action which has been taken now faces us with an emergency. I pass over in silence the action taken which relates to contractors and to the work done in prison workshops. I also pass over in this connection in silence but not without compassion, or without some degree of indignation, those acts of industrial action which involve unmerited hardship on existing prisoners. These have not caused the present emergency which necessitates the present legislation. I think that there has been a certain lack of compassion for those prisoners. What has caused the present emergency is the refusal by prison officers in many establishments to accept prisoners remanded or prisoners sentenced by the courts. It is in the light of this that the provisions of the present Bill are required.
Before I deal with those provisions—as I am just about to do—may I say something which affects myself? Last week, when it was apparent that a crisis had already arisen and that an emergency Bill would have to be prepared so soon as it could be discussed by Ministers, my right honourable friend the Home Secretary sent a circular to all justices' clerks. The purpose of this was to acquaint the justices' clerks with the gravity of the situation and to assist them in their work and to remind them of the various powers which courts of summary jurisdiction possess as to which they might care to offer advice to the members of their respective Benches. Before he took this step, my right honourable friend had the courtesy to consult—as was only right—

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both myself and the Lord Chief Justice of England.
We both expressed the same view which was put succinctly by the noble Lord, Lord Wigoder, in his reply to the Statement on Monday by my noble friend. The justices' clerks would, I think, have been entitled to complain and my right honourable friend would have been failing in his duty had he not taken the step he did. The noble Lord, Lord Wigoder, said—and I consider him to have been perfectly right—this at col. 38 of Hansard last Monday:
"May I venture to say that such criticism appears to me to be entirely ill-conceived and that the Government would be failing in their duty if they did not bring to the attention of the judiciary at all levels the purely practical difficulties which face everybody at the present time".
Unfortunately, with the mania for soliciting instant criticism which infects the modern age, and perhaps particularly the modern media, some justices' clerks and magistrates were moved to comment on the terms of the circular before they received it. I am informed and believe that it is highly likely that, had they had their texts of the circular before them, these comments would not have been made at all, as they could only have been made upon inaccurate reports of the contents of the circular or else a complete misunderstanding of its terms. I hope that this will be a lesson to all of us to refrain from instant criticism of documents which have not been read. I am afraid I am over-optimistic. Neither I nor—much more important—the Lord Chief Justice would have consented to the issue of the circular had we not both thought it proper and necessary for it to go out as soon as possible. In moments of urgency, premature, ill-advised and ill-informed criticism can do a great deal of harm.
May I now draw the attention of the House to certain changes in the form of the Bill since it was first introduced yesterday as a result of discussion in the other place. This particularly affects Clause 8, which has been substantially altered since yesterday by Government amendment. As it now stands, and as amended, the effect of this clause is that the only permanent provisions in the Bill—that is, those in Part II, other than Clause 8—are Clauses 6, 7 and 9. All the other clauses of the legislation will be repealed in 12 months from the date of
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Royal Assent unless by an order subject to Affirmative Resolution of both Houses of Parliament their repeal is postponed for another 12 months. Without such a resolution it will not be possible under Clause 8(2)(b) to revive any of the provisions of Part I when the initial 12-month period has elapsed. It will remain possible for Parliament to approve the extension of the life of the full contents of the Bill 12 months at a time indefinitely.
When the Bill receives Royal Assent the provisions of Part I will remain in force for a period of one month, and not three months as originally proposed in the text which your Lordships will have seen yesterday. They may thereafter be kept in force for another month for as long as Clause 8 remains in operation, by order made by the Secretary of State. This order must be laid in draft and approved by Affirmative Resolution of both Houses within seven days of being made. It will similarly be possible for a lapsed provision of Part I to be revived by order of the Secretary of State. I now come to the clauses of the Bill, and out of order may I take—
Lord HALE: My Lords, may I make a single interjection? The noble and learned Lord was recently making a criticism of the people expressing opinions on documents that they had not received or read. Is the noble and learned Lord's typescript document one that has been corrected since the Commons sat yesterday, or is the Green Paper—which, after three or four calls, was issued to me by the Printed Paper Office a few minutes ago—the one on which we can now rely as the document on which we are permitted to make observations?
The LORD CHANCELLOR: My Lords, the noble Lord should have received the right paper and the one to which he can refer with confidence. My Lords, may I now—
Lord HALE: My Lords, with very great respect to the noble and learned Lord, that really was a somewhat cavalier comment to someone he has known for quite a long time. Have the Members of the House been issued by the Printed Paper Office with a new printed Bill amended in accordance with the debate yesterday or have we to seek some other document—which was certainly not

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offered to me—which contains particulars of the debate yesterday?
The LORD CHANCELLOR: My Lords, I thought I had made it very clear to the noble Lord. If I did not, I apologise. If the document was delivered in the past few minutes then he has the right one.
Lord ELWYN-JONES: My Lords, would it help if I say that the PPO now has the Bill as it has come to your Lordships' House from another place. It would seem that, unfortunately, my noble friend, has not had the opportunity to go to the PPO to collect it.
The LORD CHANCELLOR: My Lords, I did not know there was anything particularly obscure in what I said, but, if there was, I apologise. I am very grateful to the noble and learned Lord for evidently having got the point over better than I was able to do. May I now turn to Clause 6. This is a permanent clause of the Bill and it puts beyond doubt the legality of the use of police cells and police constables to deal with the tailback of prisoners. I hope and believe that this provision gives rise to small controversy. It is the only operative provision, except that relating to expiry, which I have already dealt with, which is permanent. I hope that this also will prove non-controversial at this stage. The other ones are financial provisions, citation and extent, and I do not think they require separate discussion.
I turn now to the main text. The first clause of the Bill allows the temporary accommodation of prisoners in places approved by the Secretary of State. This clause is rendered necessary by the accommodation of prisoners in police cells which, as your Lordships know, are now full almost to the point of overflowing. Therefore, the clause is obviously necessary, although it is equally obviously highly distasteful; and most distasteful of all is the necessity to invoke the assistance of the army in manning in part the accommodation, although it will be under the supervision of senior members of the prison service. The only comfort I draw from this provision is that it is as distasteful to the Government, including not least my right honourable friend, as
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I am sure it will be to other Members of the House and to those members of the forces who have to carry out the work. The House may therefore be assured that the minimum use will be made of the power, consistent with the safety of the public and the humanitarian considerations to which I have already referred. It will not be continued for a moment longer than necessary. The accommodation will be occupied temporarily by the Home Office in order to accommodate those who cannot be received in prison. The ordinary prison rules will be applied so far as practicable, and those who help to run the accommodation will have the same powers as prison officers. I happened to hear the debate in another place and I think that in order to prevent misunderstandings I should say that those are the powers of a constable.
Clause 2 deals with remand. Under the existing law, which I think is contained in the Magistrates' Courts Act 1952 but which, of course, is very much older than the provisions of that Act, the prisoner on remand must be physically produced every eight days. Since, when they leave prison, owing to the industrial action, they will not be readmitted by prison officers, and since the police cells in which they would ordinarily be accommodated are not now available as they are full, clearly Clause 2 is necessary. Incidentally, new arrests will be accommodated in Clause 1 accommodation, which will not necessarily be within reach of the petty sessional courts. I must stress, however, first that this clause will not excuse the petty sessional courts from their judicial review of each case every eight days; nor will it remove from the courts the right to require particular prisoners to be brought before them for hearing, should justice require that.
I could go at greater length into that provision, but at this stage perhaps it is enough for me to say that. Of course, ordinary legal aid provisions will apply. The court has power to grant legal aid and of course the magistrates' courts supply what are called "the Widgery criteria" of which the first, so far as I remember, is that where the prisoner is in danger of losing his liberty, legal aid is granted. That would normally arise after the first remand. There is usually one remand where the police have not yet completed

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their enquiries but after that, if prisoners are to be remanded, they will ordinarily be given legal aid.
Clause 3: When one reaches Clause 3 one turns to the evacuation from detention of those already there, and the clause deals with the release of prisoners on remand who have been refused bail. I know that this purely executive release, which does override judicial discretion by the courts, is one which has caused my right honourable friend the greatest difficulty and the most qualms of conscience. I am sure the House will accept my right honourable friend's assurance that the power itself will be invoked only with the greatest reluctance and then only with every reasonable safeguard and only with prisoners considered to be the least dangerous.
From the very nature of the Bail Act, which your Lordships passed fairly late on in the last Parliament and in relation to which the noble and learned Lord and I played some part in the discussions, some element of risk is unavoidable if the power is used at all, and I should be rather less than candid if I did not concede that. Therefore, I frankly concede that I contemplated exploring the possibility of incorporating a judicial element in this procedure, but I concluded that, since in the essence the function is executive and based on operational necessity, it would not be right to involve the judiciary in it at all. Clause 4 suspends the rights of courts to imprison for non-payment of fines, or for non-payment of maintenance or rates. This, too, is justifiable only on the grounds of emergency. If I may say so in passing, I think that such cases should be adjourned or postponed if otherwise the right of incarceration would be likely to be used.
Clause 5 is probably the least offensive provision of all, and I hope it will be the least controversial. Excluding, in the nature of things, life sentences, it provides for the premature release of all prisoners within six months of their release dates. I know that some noble Lords have notions about remissions generally, and this is obviously a matter which interests many Members of this House. I am not sure that I think it right to discuss this in the context of the emergency as it will affect our general policy of penal treatment. The noble and learned Lord,
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Lord Elwyn-Jones, knows that I have my own views about that; but this modest degree of relief from overcrowding will surely not be objected to in present circumstances, least of all by the prisoners themselves.
I have already described the new duration provisions of Clause 8. At first sight they look somewhat complicated, but at this stage it is probably enough for me to say that Part I will die a natural death at the end of one month unless prolonged for a month at a time by Affirmative Resolution. There are also provisions for revival which I have explained, which are also subject to parliamentary approval by Affirmative Resolution I think that is all I have to say by way of introduction, because other Members of your Lord-ships' House will want to play a full part in the discussions. I beg to move that this Bill be now read a second time.
Moved, That the Bill be now read 2a.—(The Lord Chancellor.)
3.29 p.m.
Lord ELWYN-JONES: My Lords, the House will be grateful to the noble and learned Lord the Lord Chancellor for having taken us through the Bill in broad terms and having explained to the House the lamentable circumstances which have given rise to the Bill. Parliamentary arguments about the merits of an industrial dispute are not, I think, very rewarding, but the consequences of the dispute which is taking place between the prison officers and the Government or the Home Office are certainly very grave. Indeed, the whole system of criminal justice, the interests of prisoners themselves and the protection of the public are all at stake.
I was particularly interested, as I am sure the House was also, to notice the reference the noble and learned Lord the Lord Chancellor made to the suffering of prisoners themselves as a result of what is happening. The interference with the routine is leading to delays in meals and deliveries of letters and, above all, cancellation of visits, the very lifeblood of a tolerable existence in a prison. Most serious of all, however, as the noble and learned Lord has said, is that prison officers in many prisons are refusing to accept prisoners who have been remanded or sentenced by the courts.

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The result of that is that the appaling problems already created by overcrowded prisons and the conditions which prevail in them are being made worse by the necessary use of police cells, which in many cases are even worse than the conditions in some of the prisons, particularly, I understand, for women prisoners. The position now is that 3,500 prisoners are being kept in those wholly unsuited places of accommodation and, incidentally, in circumstances of less security than the prisons themselves. Of course, the interference this causes with the functioning of the police in their normal range of duties must be very serious. To add to all these grave problems there are, if I may say so, the provisions of this Bill. It gives unprecedented powers to the Home Secretary, enabling him to override the decisions of the courts and involving, I shall submit in at least one respect, a serious inroad on civil liberty.
In addition, there is what the noble and learned Lord has referred to as the deplorable necessity for, and, indeed, the unprecedented use of the army in the circumstances which now arise and which are dealt with expressly in Clause 1 of the Bill with the provision of approved places by the Secretary of State outwith the ordinary prison and police station accommodation. By the requirements of this Bill the army is given tasks which I am sure all ranks will find utterly distasteful. They will dislike it; they are not trained for it and we are indeed testing their loyalty a great deal in submitting them to it. But, as is the practice with our services, I am sure they will do their best. But we are putting a great deal on them; it is not their job.
The best solution in this unhappy situation is, of course, the settlement of the dispute. As I said, I am not going to enter into its merits. It is the case that the previous Administration set up the May Committee in the hope of anticipating and perhaps seeking to avoid some of the problems that have arisen. That Committee reported under distinguished chairmanship and the Government have given effect to its recommendations in a way which has improved very greatly the salary and conditions and benefits of the prison officers themselves.
Furthermore, as I understand, it is now agreed on all sides that a new duty
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system is not only needed but is to be introduced, and I understand that negotiations are well advanced in order to achieve the introduction of the new duty system. In another place the Home Secretary described it in this way:
"The new system would be common to all establishments; it would remove the complexity of the existing systems, which has given rise to the current disputes; and it would remove the anomaly, which I acknowledge, that staff working under one of the existing systems receive certain payments that are not available to staff performing a similar pattern of duty under the other". [Official Report (Commons), 28/10/80; col. 213.]
Obviously this is a state of affairs that needs remedying and is now about to be remedied. I should like to ask the noble and learned Lord the Lord Chancellor, when he comes to wind up to tell us what stage has been reached in these negotiations with regard to the new duty system. Are the negotiations continuing or have they been brought to a halt by reason of the industrial dispute? It seems to me at any rate that here is the patently obvious place, the obvious opening, for resolving the unhappy disputes that have arisen.
There was some suggestion, referred to yesterday in another place, that the Prison Officers' Association were wanting to put to the Home Secretary certain matters which were mentioned in another place yesterday by my right honourable friend Mr. Merlyn Rees, and perhaps in due course we may hear from the Minister whether that has been done and whether there is any hope of resolving the dispute, which is what is urgently needed. I myself, having visited many prisons in my time—as a lawyer, I am happy to say—am fully sympathetic to and aware of the great services which prison officers have rendered to the public and the state in carrying out their duties, very often in grim conditions; and we acknowledge their dedicated service. It is for this reason that we find the more painful awareness of what is resulting from their action. I appeal to them—I am sure the House will join with me in this—in moving on the road of negotiation in regard to the new system to bring an end to this intolerable situation.
Coming to the terms of the Bill itself, the noble and learned Lord will not be surprised if I say that it is most unhappy, using a most mild adjective, that we are

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having to discuss at this breakneck speed a Bill of enormous constitutional significance and importance and implications. I received, rather earlier than my noble friend, a copy of the Bill as it came from another place in the late stages of the morning, and it may well be that the noble Lord who is going to be helping us on the Committee stage saw perhaps only an hour ago the amendments which my noble friend and I put down. It is not a satisfactory way of dealing with the matter but I appreciate that there is an urgent need for action. I wonder whether it might not have been necessary to proceed earlier, perhaps even by a recall of Parliament last week to deal with this situation. However, there it is; here we are, and certainly, given the situation we have, we do not want to obstruct the progress of the Bill. But we must take note of the fact that serious precedents are being created here.
Great power is being given to the Executive to interfere with the judiciary. I can only thank the Lord Himself that I am not occupying the Woolsack at this moment in time. I can well hear the fulminations which would emerge from the noble and learned Lord on his favourite theme of the executive interfering with the judiciary—an honourable friend in another place daring to put down a motion of criticism of a learned judge! What are we doing here? We are giving the Secretary of State power to override the decisions of the courts, to limit chockablock the results of court decisions. Let it be noted that we are embarked upon a very significant course which I hope will not result in too much imitation—
Lord DAVIES of LEEK: Any imitation.
Lord ELWYN-JONES:—in the future. Or, indeed, as my ever-helpful noble friend said, any imitation. Therefore we shall have to examine, as we propose to do, the clauses of the Bill as we go through them, and I propose to follow the model of the noble and learned Lord in speaking briefly at this stage so that we can examine the matters in detail as we proceed.
As noble Lords will have seen, some amendments have been put down from
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this side of the House and it may well be that some of the more interesting discussions will take place on "Clause stand part". That may well be the course of events. If I may briefly refer to some of them, Clause 1 deals with the power of the Secretary of State to nominate approved places for holding prisoners, and it is in that respect that the army will be used.
I think the House ought to know what is the nature of the duties that will be expected of the army. Will they actually be in contact with the prisoners themselves and performing, in relation to prisoners, what prison officers have to do, or will their function be more clerical and guarding, as well as safeguarding perimeters and, possibly, doing some of the work which will not involve contact with prisoners? These are important questions to which the public would like to have answers. One of the matters that, certainly, we should wish to be sure about is that the prisoners themselves who are taken to these places other than prisons and police cells will have the same rights as prisoners in prisons. The noble and learned Lord the Lord Chancellor said that that would be so.
But what has prompted our putting down an amendment, at any rate to identify the prison rules which seem most helpful to prisoners, is the provision in Clause 1(5) that:
"In the case of any particular approved place the said enactments shall apply in accordance with subsection (4)"—
that is to say, enactments relating to prisons and prisoners—
"only so far as is practicable in the circumstances".
We want to be sure that that proviso will not result in a failure to give the basic liberties and rights which prisoners enjoy. I shall not go into them in detail at this stage and we can come to them in Committee.
The next clause is, I submit, the one area in the Bill where there is intrusion into civil liberties. It is, I submit, under the terms of the remand clause, an erosion of civil liberty for a remand prisoner not to be called before a court to be able to apply for bail or to give reasons why he should not further be held on remand in custody. What, at the very least, we want

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to be certain about is that he shall be legally represented when his case comes before the court. There is, as the noble and learned Lord said, the right to apply for legal aid. But, in our view, there ought to be more specific requirement of provision of legal help in those circumstances. There may be other aspects of that provision which we should look at, but it is certainly an area where, as it stands, there is a serious intrusion into civil liberty.
Clause 3 relates to the release of persons committed or remanded in custody. That is an example of the remarkable powers that the Home Secretary is given to override the decisions of the courts and to authorise the release of unsentenced prisoners whom the courts have decided should be kept in custody. It is not surprising that the Home Secretary has assured another place that those prisoners would not include among them those who were charged with offences so grave that they ought not to be released; and that I would expect to be art elementary safeguard. But the clause has value, as I appreciate, for easing pressure on the courts, as does the provision of Clause 4 which, as the House will see, provides that,
"Where a magistrates' court has been notified … that this section applies to it, it shall not commit any person to prison—

(a) for failure to pay any sum of money; or

(b) for want of sufficient distress to satisfy any sum of money".

We believe that, in the circumstances, that power should, certainly during the interim period, go and many of my noble friends think that it should go altogether.
We have to tackle the problem of the overcrowding of prisons which is a scandal, and has been a scandal for long. I am not saying that in terms of criticism of the present Administration, and I have a sneaking sympathy for what the noble and learned Lord said in regard to the attitude of some to prisons and the lack of priority given to the provision of decent conditions in them. But we have now reached a point of crisis, quite apart from this crisis which has been caused by the industrial action.
One hopes, at any rate, that one of the things which will emerge both from the House today—I have no doubt about it, having seen the names of some of my
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noble friends on the list of speakers—and from the exposure of prison conditions which is taking place more and more now in the media, is a speeding-up in the process of penal reform and of dealing with the scandal of appallingly overcrowded prisons, especially local ones. So we have a need here to deal with not only the immediate, but the long-term problem as well.
Therefore it may well be, at the end of the day, provided that the Government show determination to give practical effect to the intentions which have been announced—and I hope that there will be some reference to it in the Queen's Speech in the new Session—that we shall, at least, bring this country into some relation with what is going on in the rest of Western Europe.
We have far and away a higher proportion of the population in prison than anywhere else in the West. Germany is far behind us, Holland has about one-third in proportion, and more and more judges have been saying that far too many people are in prison who should not be there. I have joined with my noble and learned friend in preaching this sermon up and down the country. I remember that when I was appointed a Recorder many years ago, the theology of the Home Office at that time was: "It is no use sending prisoners to us for a short time and treating prisons like a transit hotel".
The present view, which I think is the right one, is that the deterrent effect of prison happens in the first week or so. Very quickly afterwards a prisoner becomes institutionalised, and I am very glad that the Lord Chief Justice has been appealing to both judges and benches to bear that fact in mind, because unless we reduce the prison population to tolerable limits we shall all stand condemned for our inhumanity. I apologise for this diversion, but I am glad that out of this Bill we shall, at least, have an opportunity of taking a hard look and making a serious appreciation of where we have failed and where our duty lies.
3.49 p.m.
Lord WIGODER: My Lords, this is a Bill that can be received without any welcome in any part of your Lordships' House. It can be received only with

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varying degrees of regret. That regret is strengthened by the instinctive feeling that some of us have that the confrontation which has begun and which may continue, with such very serious consequences, is out of all proportion to the gravity of the issue which is its immediate cause.
It is perfectly clear that the immediate issue is that the Prison Officers' Association made 16 separate, very complicated claims for meal break allowances before the May Committee. They were investigated with very great care and the particular cause of this dispute is one, and one only, of those 16 claims. It is a claim, as I have said, of great complexity upon which the May Committee found not in favour (I think those are the words to use rather than "against") of the Prison Officers' Association, but with these words—I quote from paragraph 9.25:
"The manner in which the relevant paragraphs have been drafted creates an unwelcome ambiguity".
Then in paragraph 9.26 they said:
"For the time being we have to make the best decision that we can on the claim as presented".
No one can suggest that the finding of the May Committee not to support that particular claim was clear, definite and unequivocal.
But having said that, one must I think go on to say that nothing in the uncertainty about that one claim can possibly justify the action which the Prison Officers' Association have taken. The industrial measures that they have taken have involved very real hardship to existing prisoners, and whatever those prisoners may have done in the past they are a singularly helpless section of our community. It involves very real hardship to prisoners' families who have been cut off from communication with them and it may involve very serious consequences and dangers to the community if, as a result of that action, people are released from prison who may then commit further offences, to the general detriment.
So it seems to me, if one looks at the nature of the claim, that one is bound to say that the Prison Officers' Association reaction has been out of all proportion and, indeed, verges on the irresponsible. I suspect that their reaction is in part due to their pent-up grievances over a period
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of years about the fact that conditions in prisons have been worsening so dramatically. As the noble and learned Lord on the Woolsack said, that is something for which all of us in all the political parties share the responsibility. I do not suppose that there is a Member of your Lordships' House who has ever stood on a platform at election time and suggested that it would be desirable to increase taxation in order to provide new prisons.
If that is, as I believe it is, an unjustified reaction by the Prison Officers' Association I am bound to add that I have doubts about the wisdom of the Government's reaction to it. I can understand, of course, the instinctive reaction of a Government that they must stand firm in the face of action of this nature; although perhaps even the Government may have second thoughts when they discover that their attitude is being supported with such vehemence in the columns of the Guardian newspaper. Surely if a Government are going to stand firm during an industrial dispute they ought to stand firm when the issue is one of principle, when it is one of importance, and when it is one of substance. I doubt very much whether the issue in this case amounts to any of those things. What the Government have chosen to do is to embark upon a course which everyone recognises has very real dangers in itself.
There is the first obvious danger that there will arise at some stage ill feeling between the executive and the judiciary, and I know that all of us in this House would want to avoid that, if it were possible. There is the second obvious danger that, sooner of later, the Executive are going to take some decision in relation to some prisoner who is going to be released and commit some offence which is going to attract a degree of notoriety. The abuse that will then be showered upon the Executive in relation to that particular instance hardly needs to be foreseen in words.
All these are consequences, when one comes to consider the situation, which arise from one ambiguous claim out of 16 claims for meal break allowances. It is something that would perhaps provide the material for a highly successful farce if it were not for the fact that the consequences might now be so tragic. The Government, however, have made

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their choice. They have decided for the moment to stand firm, and your Lordships' House now has the problem of dealing in very difficult circumstances with the Bill that is before it.
I say "very difficult circumstances" Hansard of last night's and this morning's debates in the other place is not available. We do not know precisely what was said. We do not know what undertakings were given. We have no information as to anything which took place there after the end of Second Reading. We are in a situation where clearly, if this Bill is going to go on to the statute book, it is desirable that it should go on to the statute book tonight. That, in effect, means that, although we may examine this Bill clause by clause, and although we may put down amendments, we are in a situation where it would be very difficult for us to divide your Lordships' House or to send back any amendment to the other place. Indeed, for that reason we on these Benches thought that it would be better to deal with the matter on the various clauses rather than to attempt to table specific amendments.
I would only mention, therefore, three particular matters about the clauses. First, on Clause 2, to take up the point that has been made both by the noble and learned Lord on the Woolsack and the noble and learned Lord, Lord Elwyn-Jones, if a magistrates' court is to remand a person in custody in his absence it is essential that that person should be legally represented when that takes place so that any representations about bail are properly and adequately made. It may not be possible now to amend this Bill but I hope that the noble Lord, Lord Belstead, will find it possible to say that the strongest possible circular will be sent out to all magistrates' courts stating that it is absolutely essential, without exception, that legal aid should be granted in those circumstances to anyone who is absent when his application may come forward.
Secondly, may I ask the noble Lord, Lord Belstead, at some stage, either now or in Committee, to deal with one point in Clause 5 where the Secretary of State is given power to direct release from prison at an earlier time than otherwise would be the case. In subsection (2) it is stated:
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"A direction under this section—
…(b) may relate to one or more specified prisons".
I can see the case for giving the power which is there in relation to a class of persons, but it seems difficult to justify giving the power to the Home Secretary to specify particular prisons as being those where these orders may be made, because it would result in an unfair distinction between prisoners who are in fact in the same category. It would be quite wrong that by chance one prisoner might he released because he is in one particular prison while another is kept in custody because he is not.
Thirdly, may I add to the observations that were made by both the noble and learned Lord on the Woolsack and the noble and learned Lord, Lord Elwyn-Jones, about the problems of our overcrowded prisons generally. I ventured the other day in the course of the statement to comment that if only we could go over to a system of remission of half sentence rather than one-third the overcrowding in our prisons would be removed at a stroke. I still believe that to be highly desirable. Indeed, my honourable friends in another place tabled an amendment early this morning to that effect. I do, however, agree with the noble and learned Lord on the Woolsack that perhaps this Bill, being considered in such haste as it is going to be, is not the appropriate matter on which to debate a measure of long-term, vitally important penal reform. Therefore, although I mention the matter I would not propose to pursue it any further in the course of the proceedings on this Bill this afternoon.
That is all that we on these Benches propose to say at this stage. We are driven to the conclusion, as a result of a very unhappy set of circumstances, that there is really little alternative but to look at this Bill with care and then to let it go forward, but I know I can express on behalf of my noble friends the hope and the belief that it is really not beyond the wit of man, it is not beyond the wit of the fundamentally sensible people who run the Prison Officers' Association, and it is not beyond the wit of the people in the Home Office, even at this late stage, to find some settlement of this difficult problem.
4.1 p.m.
Lord HUNT: My Lords, the noble and learned Lord the Lord Chancellor suggested that this should be a short Second Reading debate. I should like to assure him and your Lordships that my contribution will be very short. In fact I have little to add to what has already been said in the other place, in your Lordships' House this afternoon, and indeed outside Parliament through one means or another, but I am intent on saying in my own words things that may well have been said before.
I do not enjoy saying to this Government what, indeed, it might well have been necessary to say to another Government—namely, "I told you so"—because I think the crisis which has arisen might well have happened if the present main Opposition Party had been in power. I am only one among many with an inside knowledge of the situation in prisons who have been campaigning for years for radically new penal policies—and, with great respect to the noble and learned Lord on the Woolsack, I do not think it is possible to separate this immediate crisis from the long-term situation—to reduce the prison population, to increase the number of paroles, if only as a palliative and an expedient to shorten prison sentences, to make far greater use of the many alternatives to prison in the community, to exclude a number of categories of offenders from imprisonment and, last but not least, to do more than we are doing to encourage more members of the general public to take an active part in the prevention of crime.
I claim no special prescience in being one of those who warned, and warned many times, of a crisis arising. It does not matter at all that the crisis has been provoked by the Prison Officers' Association rather than by the prisoners themselves. The Government will doubtless point out—in fact I think that the noble and learned Lord the Lord Chancellor so implied—that the dispute is not about overcrowding. With great respect, I would say that to make that claim is no more than half a truth; it is about that. It is the conditions created by overcrowding which are the background and which we must consider. Against a background of stress and tension and discomfort and dissatisfaction about all who are confined
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in prison, whether they are prisoners or prison officers, this claim, which I find quite insufficient for the action which is being taken, is only a symptom of a deeper problem.
I support—as indeed everyone with a sense of responsibility must support—Mr. Whitelaw in the measures before your Lordships' House. Not to do so I am sure would be leading irresponsibly along the road to anarchy. But I do not approve, any more than did the previous speakers, the action of the Prison Officers' Association in seeking to pursue their demands by inflicting further hardships on prisoners, who are already in many cases doing punishment in excess of what is right, upon others who have not been sentenced, on others who have not been convicted and on others again who have not even stood trial. I say this despite having, as I am sure is the case with all your Lordships, a very great admiration and respect for the prison service and despite having many friends among the prison officers. Indeed, I venture to surmise that there are many prison officers who are not in agreement with the action taken by their association.
If I understood him aright, the noble and learned Lord, Lord Elwyn-Jones, gave thanks to the Almighty, that he did not find himself at this moment sitting on the Woolsack. I may have misunderstood him but I think I have got it right, and I merely take his cue with a sense of anything but blasphemy and say "For God's sake let this be a prelude to a new beginning and not more tinkering with the side effects". Let it be a new beginning to tackle the real causes of the trouble in regard to our prisons, the penal policy behind it, the sentencing practices, with courage, with wisdom as well as with humanity.
The noble and learned Lord, Lord Elwyn-Jones, referred to the numbers of people in our prisons in relation to the numbers held in other countries in Europe. I should like to supplement that by saying that I hope very much that I live to see the day when this country is no longer at the head of the European league as the one which keeps more citizens behind bars than all the other countries. It is a league in which the merit lies in being at the bottom and not at the top, and as a

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nation with a long tradition for humanity, as well as for hard-headed, self-interested common sense, that is where we ought to be. It is up to us, the legislators and the judges, and I join with anyone else who has said so or may say so, in praise and hope of the present Lord Chief Justice. He served for three years on the parole board and was educated very usefully during those three years; and it is up to the judges and of course the public at large, in a change of attitude, to make sure that that position in the league is reached.
4.8 p.m.
Lord INGLEWOOD: My Lords, I rise to make several general points and to seek more information about Clause 6, which may not be quite so innocent as is claimed. I shall be short and I also say that I am not other than a convinced supporter of the need for a Bill of this nature at this unhappy time. I am very glad that the great majority of the provisions are short-term, but it is the habit of Governments to use an emergency to tag things on to rushed Bills of this kind which failed to find places in some earlier enactment. Clause 6, which increases police powers, with no limit of time, seems to be out of keeping with our British tradition, and it is something which I think Parliament should look at closely.
As is known, I have taken some trouble to learn about policing, and not just the organisational side, and I have great sympathy with the police of this country and not least in the more sordid side of their duty. This Bill puts an immense burden on our police and we should realise it—an immense burden—and we should not just take it all for granted. If I now ask several questions it is not intended to be unreasonable criticism of the police. The House deserves more information about Clause 6, and getting information from the Home Office in this field is not always easy. As I have said, there is no time limit and I should like to know what provision there is for monitoring the use of this power, which could in fact be abused.
It would also interest many of us to know definitely what persons, if any, have a right of access to police premises and cells, in the same way as I believe the
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Board of Visitors has a right to enter prisons; and I am not sure that judges of the High Court do not have the same right. Do Her Majesty's Inspectors of Constabulary—not a very effective body, if I may say so—have such a right, and, if so, how is this modified in order to cover the Metropolitan Police, which is inspected in a different way? I have heard it said by a senior police officer that even the Secretary of State has no right to enter a police station and walk down the cell passage—a point that might well be cleared up.
While the police are always ready to take on emergency jobs, their minds sometimes work in a strange way; they try to do everything themselves and are not good at making full use of auxiliaries and of civilians. Will the Secretary of State at this time give a lead and say that, as far as possible, active men shall not be taken off duty on the streets, which is their prime field, in order to do work in these makeshift prisons which could be done by older men and others who do not necessarily have the same police training? For an example, we need look no further than the Palace of Westminster, which is most extravagantly policed. But I do not want to pursue that any further now.
My Lords, thinking it a small duty to know more about this problem than the familiar generalisations, I have tried to find out for myself something more of the conditions in these overcrowded cell passages, and I am very grateful to the police officers who have given me this opportunity. We hear about crowded cells; it is quite a different thing to go and see them. Today's conditions may well be two men in a cell all day, a cell intended for one man waiting perhaps for two or three hours before his case is heard in court. It is not acceptable when he is in that cell 23½ hours a day—that is 24 hours less 10 or 15 minutes in the morning to go to wash, shave and go to the latrine, to use the old-fashioned word rather than "toilet"; with maybe 10 minutes' exercise later, indoors, not even under the sky. With a small staff of, say, three police officers in such a cell complex, all three will have to be present every time the door of a cell with two men inside is opened.
There is a special problem of keeping the place, and not least the blankets,

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clean when the occupants may be moved every two days, sometimes every day, where such a temporary prison is more in the nature of a transit camp. I have seen one lad with both scabies and VD, and, though he was kept in a cell on his own, he had no separate lavatory arrangements. Think of the risk of infection.
It has already been mentioned that the conditions which normally go with prison life and perhaps make it slightly less intolerable are largely absent in these temporary prisons. There is no association and no visits, except for a prisoner's solicitor, standing in the corridor outside and talking through a slide in the door because there is no appropriate room available. There is no reading matter to keep men who would like to read happy; and keeping prisoners happy is an important feature of prison management. I have seen newspapers bought only through the kindness of one police officer, and the cost is being met at the moment by a charge against his imprest account which he hopes will later be made good.
There is vast paperwork associated with the conditions, not just with regard to main moves of prisoners, but every meal-time for every prisoner is recorded, every meal he eats so that one day a claim can be made against the Home Office to avoid the cost of all this extra work falling on the prison Vote.
There is no mail in and no mail out; no mail in because in the middle of all these moves no one knows where the prisoner is, so letters cannot be addressed. As likely as not there is no mail out because no organisation is in operation for providing writing materials. There are occasions when a kindly policeman acting as gaoler will somehow find paper and envelope to enable somebody to write.
No doubt the police are making what they feel to be the best of a bad job, but men who are taken off their ordinary duties to do this get no satisfaction from it at all. Furthermore, when police are so thin on the ground in this great city and elsewhere throughout our country, it is a very dangerous situation to take more and more for these emergency duties.
It is Parliament's job to help the police in these circumstances, and also to ensure that what are temporary expedients do not
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somehow become an accepted part of our administration, as sometimes happens.
4.17 p.m.
The Earl of LONGFORD: My Lords, it is always a pleasure to follow my noble relative. He was once my very efficient trustee, but he reached the conclusion that the issues involved were not equal to his far-reaching talents, and the arrangement lapsed by mutal consent.
In a general sense the best things I might have said have been said very much better by the noble Lord, Lord Hunt. He will perhaps read that well-justified tribute in Hansard. I shall speak briefly, bearing in mind his injunction that one must on no account say "I told you so".
I should like to put one point to the noble Lord, Lord Belstead, before I come to the few main propositions. The noble Lord's advisers have had about an hour's notice, so by the time he comes to speak he may be able to provide a reply. Running through Clause 5, there seems to be an assumption that the Home Secretary requires some new statutory powers to release prisoners. May I remind him, which might not be in his mind, of this? All this occurred during my lifetime, though not in the lifetime of most of the House. On 20th July 1910, when the Lord Chancellor and I were certainly out and about—of course, he was only just out and about—Sir Winston Churchill, then Home Secretary, said this in the House of Commons:
"When His Majesty came to the Throne, one of the very first wishes which he was pleased to express was the desire that at a time when all hearts were stirred … the wretched prison population of the country should not stand outside that movement in the national mind.
On similar previous occasions the proposal has always been to release a certain number of prisoners definitely. I think we have found a much better way, and that is not to release individuals, but to make a general pro rata reduction of sentences over the whole area of the prison population. The remissions which were granted on this occasion affected 11,000 prisoners, and at a stroke"—
he used that phrase, since made popular—
"struck 500 years of imprisonment and penal servitude from the prison population. I am glad to be able to tell the House that no evil results of any kind have followed from this".
That was said 70 years ago. Seventy years ago it was perfectly possible to let out 11,000 people, or to let them out sooner

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than otherwise. So perhaps we can be given some understanding of the statutory position: have there been prison rules introduced in the meantime which place some restriction on this power? The point is of importance because if we say, as many of us think, that the general remission ought to come down permanently from one-third to one-half, are we to be told that that requires some statutory power when Sir Winston was able to let all these people out without any consent of Parliament at all? Perhaps the noble Lord will deal with that. His advisers may have had trouble over this, but we shall see what happens when the noble Lord replies.
I should like to state my general view very briefly in three propositions. If I may be allowed to do so, I shall not argue them but just state them. First, while the industrial action continues, the Government must be supported in any reasonable measures—that includes, of course, crisis measures and measures that would not be taken in other circumstances. Secondly—and noble Lords may find this rather more controversial—the Government might reasonably be more sympathetic to the idea of some kind of arbitration than they are showing themselves to be at present. My third point—agreeing very much with what my noble friend Lord Hunt said—is that good can come out of evil if the result of the crisis is the establishment of long overdue penal reforms recommended by many of us for so many years in this House and, above all, if the crisis leads to the elimination, in the reasonably near future, of the scandal of the overcrowded prisons.
I have very little to add to what I have already said, but I should like to raise two further matters, one of which is relatively short and the other a little longer. Anyone who has been connected with the Youth Service and particularly with that part of it which is concerned with young people in trouble—and the House will know that I have been involved in such matters for a number of years, as have so many others in this House—must be aware of the anxiety which is already springing up in such quarters. I appreciate that my noble Leader for the time being—my noble and learned friend Lord Elwyn-Jones—and others are to press for safeguards in this connection.
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But, if one thinks of any particular youth centre visited by quite a lot of young people who have been in trouble and some of whom are now actually in prison on remand, one must be aware that there is great anxiety as to whether they will be lost sight of. Indeed, that is the crucial point: will they be lost sight of? Of course, if the whole machinery clicks into motion no doubt marvellous lawyers will be provided and something will be done. But we must always think of people who have broken away from home who have no relatives, no friends, no anybody, and who may simply disappear into the vast maw of Brixton or similar prisons. That is an aspect which I am sure will be in the mind of my Leader on the Front Bench.
I should like to make a few comments about prison officers in general. I am not in the least likely to suppose that I am the darling of the prison officers. If one has been involved on the side of the prisoners then that is not a role that one could reasonably expect to take on. But, I have been approached by them more than once, including recent occasions, and their leaders have shown confidence in me, as in other noble Lords, and I think that I understand something of their point of view. They undoubtedly consider themselves very much neglected. I have used the expression in this House before now that they are the most isolated section of the reputable sections of the community—in other words, they are neglected.
Are they right or wrong in saying that they are neglected? I say that they are abundantly right: they are neglected. But, I have ventured to say to the leaders of the prison officers in recent times—although not perhaps for the first time—that it is partly, though not mainly, their own fault because they have lacked a sense of public relations which is so helpful in the modern world and, therefore, it cannot be said that it is entirely the fault of the politicians or similar people I hope that they will take more trouble—and they seem to be taking more trouble—in the present crisis to let the public and the politicians know what is in their minds.
However, most of the blame must fall on the politicians whether we be high or low, in office or out of it, or wherever

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we may be stationed. We have allowed the prison officers to develop an increasing sense of resentment. I am saying nothing now about the prisoners. Although in the short run there may be a conflict of interest, I am convinced that in the long run the interests of prisoners and prison officers are harmonious, even if it does not always appear like that in the short run.
At any rate, if we leave out the prisoners and take just the prison officers, we must ask ourselves where the real blame lies—where does the crucial, cardinal blame lie? I must place the blame not on any individuals, but on those who have been in charge of the Home Office and on the officials. Of course, we know that Home Office Ministers come and go and so do the officials. Indeed, a very high person who had served some years in the Home Office until fairly recently told me that during seven years in the Home Office there were six different heads of the Prison Department. So, there was not likely to be much continuity there.
The May Committee has been set up and has made various suggestions about a new role for the prison officers. I opened the first debate on prisons in this House in 1955 and my main point 25 years ago was a new role for the prison officers. What has happened in those 25 years?—substantially, nothing. The May Committee has been called in and people, at short notice, have been asked to undertake the matter in rather a hurry. What do they say? They say a lot, but, to use an old Irish expression it is a case of, "Mind you, I have said nothing". It is not quite true that they have said nothing, but they have said very little that we can put into effect. It must fall to the Ministers and the Home Office to decide on this new role, but they cannot do that unless they are in much closer contact with the prison officers. So, to add just one more sentence, when this crisis is over there will be no real improvement unless there is much closer human contact between Home Office Ministers and officials on the one side and prison officers on the other.
4.27 p.m.
Baroness MASHAM of ILTON: My Lords, as a member of the board of visitors of a borstal, I should like to take this sad opportunity to ask the Minister
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a few questions related to the present unfortunate circumstances. When a dispute like this takes place in institutions housing inmates, be they prisoners or patients in hospital, the results are some-what the same, except that the prisoners do not have the sympathy of the public, because they have committed crimes. The inmate is the helpless person stuck in the middle of a conflict between two sides. It may not be common knowledge to some people that many prisoners of all ages, including young people, have been shut up for 23 hours a day in their cells. This practice has been going on since well before the present dispute.
A few weeks ago I spoke to a group of about 60 men in Armley Prison in Leeds. For years that prison has been housing far more prisoners than it was built for, but worse than that situation is the fact that there is very little work for the prisoners to do. The work-rooms are silent and the men are locked up, apart from a short time out of their cells for exercise and recreation. This situation is demoralising for the inmates and can only lower the morale of the staff.
There is no doubt that work in prisons motivates everyone involved in the right direction. Inactivity breeds depression and discontent, and that is what has happened in our prisons over the last few years. The present dispute has only made a difficult and unsatisfactory situation much worse. I suspect that such services as the library service are now not operating in most penal institutions, which, if one is shut up for 23 hours-plus a day, is a serious deprivation for many inmates. I should like to ask the Minister what plans are being made in these temporary provisions to maintain this library service, which I believe is generally run by the prison officers.
I am attached to an open borstal far removed from the large enclosed prisons. The situation when I was there last week was very confusing, most of all to the young inmates, many of whom are schoolboys. The prison officers seemed to be working but not allowing the boys to work apart from vital services such as in the kitchen. Boys were becoming bored—at least they wanted to work, which was good, but boredom can breed bullying among young people, especially in open conditions.

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When the dispute is not operating, several of the boys work outside doing valuable work in the community. Some are collected by a minibus belonging to a voluntary home for disabled people and some go out and take a bus to a nearby Cheshire Home. Now, because of the dispute, this has been stopped. I cannot see the reason why. This service does not involve prison officers, except in checking the prisoners in, and I would ask the Minister if he could look into this. There is nothing to stop, the boys leaving the borstal if they take it into their heads to do so, which some of them do from time to time.
I hope that the Home Office will look into the matter of volunteers working and doing useful work, be it volunteers going into institutions such as hospitals or borstal inmates going out into the community in times of disputes. All inmates—be they prisoners in large prisons, people on remand or boys at borstal—are concerned about visits, not so much for themselves but for their relations or friends who may travel miles and then find that they can see the prisoner only for a quarter of an hour, if that. I should like to ask the Minister what plans he has under the temporary provisions for visiting throughout the institutions.
I conclude by asking him what use he sees for members of boards of visitors of prisons and prison visitors in this situation. If it comes to bringing in the Army, it may be that these people, who already know their institutions and carry a Home Office card, can be of help; as I should think many soldiers or officers in the Army will never have been in a penal institution. It would be useful for the House if, before the Committee stage takes place, the noble Lord the Minister, Lord Belstead, could tell us clearly about the situation today in the prison service. Several unions are involved. I think that tribute should be paid to the governors and the assistant governors of the penal institutions. They are very much in the minority and need all the support they can get at this present difficult time.
4.33 p.m.
Lord HUTCHINSON of LULLING-TON: My Lords, together with a number of other noble Lords, I am not surprised at the arrival of this Bill in this Chamber.
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During the short time I have been a Member of your Lordships' House, on a number of occasions I, too, have warned the Government of the crisis which was inevitably upon them. As other speakers have said, the fact that it came as the result of the action of the prison officers really makes very little difference, because it would have come in another way if it had not come now.
Those who believe that the manner in which our society manages the criminal process is some indication of the degree of civilisation of our society, must, of course, view this Bill—which I accept, as does everyone else, is now a necessity—as utterly distasteful and forever to be deplored. To look back at this stage of course means that one will meet the criticism that that water has now flowed under the bridge. But when the bridge is collapsing and powers are being sought to prop it up, it is still vital—is it not?—to look at the causes of the engulfing flood which is causing the bridge to fail. I would submit that confrontation in this situation is simply no solution to this grim crisis.
Prison officers are not boys at a public school, and in the context and against the background of the last seven years, I would suggest that there is still ample room for civilised negotiation. One cannot help but have the suspicion that the reason why the door has been so firmly slammed and closed is the Government's fear that if the arbitration went against them it would result in some further public expenditure which they are committeed on all sides, in all circumstances, to refuse.
The May Committee grappled with this question of payment for meal breaks. It may seem to some noble Lords here—and the noble Lord, Lord Wigoder, has already voiced this view—to be a trivial basis for militancy. It may well be that some of your Lordships who come into the Chamber after a good lunch in the restaurant would take that view. But the fact remains that for at least seven years, if not longer, prison officers have expressed the view that this is a continuing injustice as far as they are concerned. After all, it is the very matter which caused the setting up of the May Committee. Whether or not it appears to some as

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trivial, the fact of the matter is that it is a continuing yearly and significantly important cause of concern and dissatisfaction for prison officers.
Prison officers are required to work net hours; that is, their payment is for the hours actually worked. Periods for meal breaks obviously affect the starting time of their overtime. When one reads the May Report one sees that they have attempted to grapple with this highly complex question. They have interpreted the 1972 Notice to Staff and an essential letter of 17th April 1973 from the Home Office in a certain way. Having done that, they found that those documents did not establish any principle of general application. As they say, they were prepared only to consider questions of principle and not to adjudicate on any issues involving only establishment.
The May Committee was under the most tremendous pressure to report quickly, and as a result I think that most noble Lords would agree that, so far as diagnosis is concerned, the May Report is excellent; but as regards its recommendations it is really very poor. The Committee had, of course, a huge remit, and I am sure that a distinguished High Court judge would agree that he would be no expert in wage negotiations. In my submission, Chapter 9 bristles with ambiguity and doubt, and surely here there is a perfectly respectable basis for a reference back, a reference to ACAS, or for some further consideration of this claim. The Prison Officers' Association said to May that the Home Office only takes cognisance when confrontation actually occurs. This Bill is indeed evidence of that.
Clause 2, now involving legal aid, and concerning extension of the period of remand, was certainly a suggestion made by myself and other speakers on a number of occasions for reducing the difficulties of conditions in which prison officers have to work. Clause 4, taking debtors out of prisons, has been repeatedly urged as another way of improving those conditions. The early release scheme for persons sentenced to imprisonment has been repeatedly urged by myself and others as a method of getting rid of the overcrowded conditions in which prison officers have to work. All these matters have been urged, and urged repeatedly,
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and as indeed the prison officers said to May the Home Office only takes cognisance when confrontation actually occurs.
I would implore the Government to continue on with the rest of the measures which have already been mentioned today—and which have been repeatedly mentioned by the noble Lord, Lord Hunt, in debates in this Chamber—and not simply to stand back behind the draconian contents of this Bill with the confrontation with these prison officers, and not at the same time hold out hope to them, and of course to the prisoners, that there are measures in the pipeline—real measures if crisis measures—to reduce the appalling overcrowding and the appalling conditions in which these men have to work, and which, as has already been said, lie behind the course of action upon which the Prison Officers' Association has embarked. As a practising lawyer, and as an advocate in the criminal courts, of course that behaviour could not possibly be condoned by me or by anybody else who believes in the rule of law; but whereas one cannot condone it one can at least surely try to understand it.
So far as the Bill is concerned, there are two things I would say in addition to what has already been said. I do not know whether noble Lords appreciate the extent in Clause 1(6)(b) of the powers which are being given to persons in this Bill.
"Any person [or class of persons] authorised by the Secretary of State … to assist any person so appointed [temporarily to do the job of a prison officer] shall … have all the powers … and privileges of a constable".
Powers of arrest. Presumably powers of arrest in relation to the public at large and not only to those persons affected by the terms of this Bill. I would not have thought that any layman in our society should lightly be given powers such as those. This surely is a possible area of overkill. I certainly would like some assurance from the Minister who is replying in this debate that there are limitations on the powers which are being given to persons authorised by the Secretary of State in these circumstances.
So far as the interference by the executive with the judicial process is concerned, I have fewer fears. If the judiciary, whether it be the magistracy or whether it be the judges, will remain

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blind to the incredible dangers which have been so obviously arising in the overcrowding of the prisons and have not adjusted their sentencing policy accordingly over the months and even over the years which have passed, then I must say it causes me no concern that the executive has to interfere in such a situation.
When one reads that the Magistrates' Association's reaction the other day to the Secretary of State's circular to impose shorter sentences, and the guidance as to the granting of bail, simply in one phrase was, "This will make no difference to us. We have been doing this for years", then one despairs sometimes of the judiciary, and in those circumstances of course such interference has to take place. So far as the Bill is concerned, I have nothing else to say, except perhaps on Clause 6(2), where the powers which have been given to a constable—coming back to what I originally said—are that if for any reason it is
"not practicable to secure the admission of a person"
to one of the institutions set out,
"he may lawfully be detained in the custody of a constable until such time as he can be admitted there …".
That seems to me a possibility of a completely open-ended detention.
Again, if one is appreciative of the fact that these are not police officers, persons with long experience and training in doing this sort of thing but lay persons or members of the military, then it seems to me that again one requires an assurance as to these powers. I merely end by asking your Lordships, who are these prison officers who have brought about this crisis? If I may quote from the May Report:
"We wish to stress emphatically that the United Kingdom is fortunate in the men and women that it has secured to run its penal establishments. No one can plead ignorance or deny the staff the thinking and inquiring support as well as the resources which they need".
Those are the persons about whom we are speaking this evening. Confrontation in my submission, is an arid philosophy. It leads to the necessity for this sort of legislation. It will never achieve a solution. I would implore the Government to come out now with some plan, a crisis plan, for reducing the over-
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crowding in the prisons which has caused this problem, and so to give hope to prison officers so that once again they can have some job satisfaction and not simply be obsessed by the amount of their pay.
4.47 p.m.
Earl FORTESCUE: My Lords, having listened to the opening speech by my noble and learned friend the Lord Chancellor, I had intended to delete my name from the list of speakers. As I understood it, in his opening speech he stressed that Part I of this Bill, and Clause 4 in particular, were of a strictly temporary nature. However, when the noble and learned Lord, Lord Elwyn-Jones, spoke concerning Clause 4, I understood him to use this occasion to advocate the permanent removal of a court's power to imprison fine defaulters.
I speak as a justice of the peace and as a member of the Magistrates' Association, who I know are in general agreement with what I have to say. Already there are a number of penal reform organisations—some call them "do-gooders"—who have already welcomed Clause 4 in the few hours that Clause 4 has been available to them. These organisations will, I am sure, use this as a lever for the permanent introduction of such legislation. Here I feel there is a real danger.
Courts now use this power of imprisonment only in the very last resort and when they are convinced that an offender can but will not pay, and after trying and considering the alternatives open to them: that is, giving the offender time to pay a fine; giving him the opportunity to pay by instalments; making an attachment of earnings order; or issuing a distress warrant.
Lord HALE: My Lords, having been a member of the Committee on the Collection of Debts, the abolition of imprisonment for debtors has been the aspiration of many of us for very many years. We abolished imprisonment for large debts long ago. When a man who owes £1,000, £500 or perhaps £200 files a petition in bankruptcy, frequently he has had ample opportunity to make provision so that he will have no assets at the time the bankruptcy occurs. On the other hand, the small man who gets behind with hire-

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purchase instalments and so on was the person we particularly considered in the committee and we unanimously declared for that change. There were minor problems of course, but if one is going to pass a temporary measure, can one not at least—
Several noble Lords: Order!
Lord HALE: Am I not in order, my Lords? I am making an intervention. If one of my noble friends on the Front Bench is making adverse comments, perhaps he would formulate them.
Several noble Lords: Too long!
Lord HALE: My Lords, I have sat here in the last 30 days for longer periods than many other noble Lords and I am now rising to intervene in the speech of the noble Earl, Lord Fortescue, whose courtesy I acknowledge. He made comments about imprisonment for debt which were misleading. If one cannot forego imprisonment for a week or two for debt, at great cost to the country, how will one persuade people in a week or two to adhere to the proposition that one should cut down sentences for murder and release people from prison before their time?
Lord SANDYS: My Lords, I must protest to the noble Lord, Lord Hale, who is intervening in the speech of my noble friend Lord Fortescue. He is making an excessively long intervention, and if he wishes a reply, he certainly will not get one.
Lord HALE: I had in fact completed my intervention, my Lords.
Earl FORTESCUE: I was speaking on the subject of fine defaulters, my Lords. There remains a hard core of such offenders who can pay, but will not do so until the eventual threat arises of immediate imprisonment. Many of them at that moment then pay, when they are arrested, while others pay within a few hours of arrival in prison. It is only a very small minority who serve their full prison sentences. Fine arrears run into several millions of pounds and without this final sanction of imprisonment for default I am convinced that the number of defaulters and the fines outstanding will become even
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greater. I therefore ask the Government to give a positive undertaking that the provisions in Part 1, and particularly Clause 4, will be of a strictly temporary nature.
The LORD CHANCELLOR: I can answer that at once, my Lords. They are strictly temporary. I explained that in my reference to Clause 8; they are part of Part I.
4.45 p.m.
Lord DONALDSON of KINGS-BRIDGE: My Lords, the noble Earl, Lord Fortescue, addressed himself to an entirely hypothetical situation. Many of the people who agree with me about the necessity for penal reform have been pressing for many years for something to be done about fines. We have never said there should be complete removal for deliberate refusal to pay money where the money exists in the pocket, and that is the essential issue. However, it is quite irrelevant to this Bill and I do not think we should discuss it. I shall try to keep to a few points in relation to the Bill and the discussion we have had, because the noble and learned Lord Chancellor is right to say that the details we can discuss in the next hour or two and that we need not discuss those now.
I wish at the outset to point out that my noble and learned friend expressed my point of view to a nicety in his support for the Government on the Bill, in his lack of condemnation of the prison officers and in his peroration, in which he indulged in the irrelevance of saying he thought this may be something evil out of which good may come. That relieves me of the necessity of making the speech I have made in this House for the last 12 years at least twice a year, and that will no doubt be a relief to your Lordships.
However, I cannot help quoting the fact that if one looks at the Inter-parliamentary Penal Affairs Group's recommendations in the pamphlet entitled Too Many Prisoners, one finds that one of the recommendations concerned, with careful safeguards, the lack of the civil rights necessity to take a man to the court in which he was condemned, from whatever prison he is in, every eight days. Secondly, we have always asked for more use of bail. Clause 3 simply overrides the

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judiciary through the Home Secretary on the question of granting bail. This is something which, as with my noble friend Lord Hutchinson of Lullington, worries me more than it does some of my legal friends, and no doubt my noble and learned colleague will not agree with me. The third was no imprisonment for fines, and we have already discussed that in relation to this Bill. That must be sound. It means only for a month, as the noble and learned Lord Chancellor pointed out, because if somebody is not sentenced to imprisonment for a fine, he can be suspended for a period and the sentence given when the emergency is over. Fourthly, on the question of early release, almost every noble Lord who has spoken has expressed the hope that this will end in a decision to give 50 per cent. remission. It would be quite wrong to discuss that here at this stage. I am extremely pleased that this method of dealing with the intolerable situation of the prisons should be used as a result of this crisis, but I do not think this is the moment for us to press for more; I am glad we have as much as we have.
There are a few other points I must raise. The first, which has not been mentioned, is the fact that prison officers are on active service all the time they are at work, and in Northern Ireland when they are going home and coming back as well, although Northern Ireland is not affected by the Bill. I have met many prison officers in my time hardly one of whom has not been assaulted once or twice in his career. It is a very tough job and let nobody think it is anything else; so they need rather special consideration.
The noble and learned Lord in his opening admitted on behalf of us all that we have had years of neglect, for which we are now reaping the reward. One reason why we are reaping this particular reward is that conditions for prison officers have been very bad for very many years, due particularly, as everybody has said, to overcrowding. This is not a Bill to cure overcrowding and I will say no more about that, except to remark that I agree with the noble Lord, Lord Hunt, and others in that I hope the results of the experience of this crisis legislation will convince the powers-that-be—as the
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noble Earl, Lord Longford, said, Sir Winston was already convinced—that many things can be done without causing any extra danger to the public and that some way has to be found to relieve the overcrowding.
The noble Baroness, Lady Masham of Elton, asked about the library service. I too should like an answer to that. I believe it is all right, but I should like to be sure because it is one of the most important things when men are going to be banged up for a long time, as inevitably sometimes they must be. She also spoke of volunteer visitors to prisons. I am concerned with one such organisation, the Apex Trust, which has over 100 volunteers visiting prisons every month, and I know that other organisations have people paying similar visits, and I do not think there is any great difficulty over that.
My noble friend Lord Hutchinson said that the crisis would have come anyway—and I think that this is the point. If this particular crisis had not arisen, we should have had a "blow-up" in a prison from the other side, and I think that most of us who have anything to do with this matter know that. I hate to say so to the noble Lord opposite, but it is the truth: the only solution in the end will be to spend some money which ought to have been spent years ago. I shall not go into details of what money ought to have been spent, but the noble Lord's department can tell him exactly what ought to be done, and quickly.
I wish to make two more short points, then I shall sit down and we can get on. My noble and learned friend asked: what are the duties of the Army? This is a very important point. In Northern Ireland the Army do not meet the prisoners at all. They are camped outside, and they are periphery guards. My noble friend has asked, and I should like to know, what is the position here.
One or two noble Lords have spoken of the erosion of civil liberties if the eight-day rule on remand is done away with. The answer is that there would be an erosion of civil liberties only if this were done against the wish of the prisoner concerned. In most cases prisoners are only too glad not to have to get up at five o'clock in the morning, go on a long

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railway journey to a court, and then come back again. So I think that this could be done in a general way without any erosion at all.
Those are just a few points that came out of the debate. I stand by my noble and learned friend's stance—if that is English. We support the Government in this Bill with the greatest reluctance. We think it is frightfully important that the Army should not be involved personally with prisoners; and if they are not involved personally with prisoners, I think that the constitutional question is not so difficult. With great enthusiasm we hope that the experience of this disastrous time will lead to better things.
5.2 p.m.
The PARLIAMENTARY UNDERSECRETARY of STATE, HOME OFFICE (Lord Belstead): My Lords, my noble and learned friend the Lord Chancellor in his speech spoke briefly about the roots of the dispute which have led to the industrial action that is now being taken by prison officers, and many of your Lordships with considerable experience in one way or another of the prison system of this country have, with one accord, recognised the difficult and sometimes dangerous work that prison officers are asked to do—and over the years they do it. I should like to join other noble Lords who have spoken in that vein by saying that having previously known nothing about it, over the last year or so I have at least tried to learn something of the very demanding work that prison officers do.
However, with great regret there is one point that I have to make. Following in particular the speech made by the noble Lord, Lord Wigoder, when my right honourable friend's Statement was repeated in your Lordships' House on Monday, we looked again at what the May Committee has said and what might be the possibilities here. That was of course in addition to the discussions that have been going on with the Prison Officers' Association. There really can be no possibility of reconvening the May Committee to consider the outstanding claims made by the Prison Officers' Association. I say that, not in any desire to be hard-headed, nor simply on behalf of my right honourable friend to
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try to turn my back on what could be a solution to this dispute which is causing us so much concern. It really would be logically impossible to expect the Committee, or any other body, to examine this claim in isolation from the other matters that were referred to May. It was a subject which was prominently within the terms of reference of the May Committee and which the committee specifically considered and rejected.
I do not want to rake over this point, and so, with the greatest brevity, may I add that the May Committee's terms of reference included examining, and making recommendations on, the Prison Officers' Association claim for continuous duty credits for meal breaks. The Prison Officers' Association then argued, as it had every right to do, that if the May Committee accepted, as it did, the claim for staff working what is called the functional group system—that is in the longer term and the training prisons—then any favourable consideration of this 7k 9b argument (that is the functional group system argument) should apply equally to all prison officers, regardless of their attendance system.
What did the May Committee actually find? If, for a moment, your Lordships will glance at paragraph 9.23 of the May Committee's report, you will see that the committee said
"Whatever may be the effect of paragraphs 7k and 9b they can confer no right to payment except in any cases clearly falling under their terms, and to state the claim in the wide term used by the POA clearly goes well beyond any possible construction of the paragraphs".
Really in those circumstances must we not try to look forward, and not to look back over the ground which the May Committee was specifically invited to study by the previous Government and on which it reached the conclusion of the kind I have just put to your Lordships? The way which is possible is to reach agreement on a new duty system which will be both more comprehensible and practical. In reply to the noble and learned Lord, Lord Elwyn-Jones, I would say that my latest information is that the Home Office and the Prison Officers' Association are continuing the negotiations on the new duty system, and I should hope—I emphasise that I say "I should hope"—that by agreement the details

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of such a system could soon be made public.
Having said that, I should be the first to concede that the provisions in Part I of this Bill are an intrusion upon the normal working of the criminal justice system, to which the Government are committed without qualification. But the hard fact is that, though these measures may be distasteful, if we have to use them, they would be much less damaging to the essential fabric of the criminal justice system than would be the effects of the current industrial action by the prison officers if no steps were taken to cope with the situation.
I like to think that by their revision in another place last night of the provisions for renewing the Bill the Government have shown that they approach the whole problem with as open a mind as possible. As my noble and learned friend the Lord Chancellor made clear in answer to my noble friend Lord Fortescue about half an hour ago, the amendments made in particular in another place make it clear beyond a peradventure that the Bill is temporary in its effect. I should like to join with the noble Lord, Lord Donaldson of Kingsbridge, when he says that it is not appropriate for an emergency Bill to make alterations of a permanent nature to important matters such as, for example, the use of prisons or the imposing of fines. If such things are to be done, they should be carried out on a more permanent basis.
May I endeavour to answer some of the questions that your Lordships have raised? If I omit any answers, I wonder whether it would be for the convenience of your Lordships for us to consider them on the Question, whether the clause stand part? The noble and learned Lord, Lord Elwyn-Jones, asked me about the use of members of the Armed Forces. It is not intended that servicemen performing routine duties in prisons shall be armed. I think this news has now got across pretty clearly as a result of the proceedings in another place. Soldiers will have administrative functions and functions to enable an approved place to be kept running; and, of course, they will be working, in the case of Frankland Prison, with a governor and with assistant governors from the prison service.
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Primary responsibility for the security of the perimeter of prison establishments will rest on the police. Chief constables have authority to decide whether police officers shall be armed if required to deal with serious disorder.
In essence, what I am trying to say is that the clauses of this Bill do not relate to, nor do they in any way affect, the use of the military arm in support of the civil power. The Bill enables the Secretary of State to appoint other persons, including members of another disciplined force, to have the same powers and authority as a prison officer, and the powers do not go beyond that.
The noble Lord, Lord Wigoder, and the noble and learned Lord, Lord Elwyn-Jones, raised, as they saw it, and indeed as the Government see it, the highly important point of the giving of bail in the absence of the person who is in custody. We fully agree that legal representation is highly desirable where the defendant is absent, and by the administrative methods that were outlined in another place last night we shall be doing all we can to encourage the courts to see that this principle is observed. I should like to give the noble Lord, Lord Wigoder, and the noble and learned Lord an unqualified assurance that the circular mentioned in another place last night which we shall be sending to the courts will leave them in no doubt at all that the Home Secretary regards it as highly desirable that a defendant remanded in custody in absentia should be legally represented; and it will be made clear to the courts that they are being asked to give the most serious consideration to the grant of legal aid at the first remand hearing, when the defendant is present.
Perhaps I may just add that what we find it difficult to accept is that it should be written into the Bill that the power of a court to remand in absentia should be made absolutely conditional on legal representation. If one went down that particular road, it seems to the Government that there could well be circumstances in the present state of confusion in which the prisoner could not be produced and for some unforeseen reason no legal representative appeared in court. If that were to happen, is the court then to have no option but to release the defendant on to the streets, however dangerous he might be? It is for this

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reason that, if your Lordships will allow the Government to do so, we are most anxious to proceed by way of circular, about which I have endeavoured to give an assurance, rather than by way of writing anything further into the Bill.
The noble Lord, Lord Wigoder, also asked me about Clause 5(2)(b) specifying prisons or classes of prisons as opposed to prisoners or classes of prisoners who would be released by Executive decision. The Government feel that they must try to have the maximum possible room to manoeuvre in the present circumstances. We would not, as a matter of policy, want to release prisoners in certain prisons while other inmates were detained in custody simply because they happened to be in other establishments; but the justification in an emergency situation for this particular power which the noble Lord has put his finger on is clearly one of operational need. We foresee that there might be circumstances in which we needed to relieve pressure at a particular establishment or group of establishments, and it would then be a matter of fine judgment whether we should let our natural preference for equal treatment across the board take us so far as to release prisoners from other establishments which were not under the same pressure. If the noble Lord feels that he would like to return to that, perhaps we could do so in a few moments' time.
The noble Baroness, Lady Masham, and indeed the noble Lord, Lord Donaldson, joined together in asking particularly about the library service in prisons, and also the noble Baroness asked about visiting prisons. This is a question, of course, which should be asked equally (I am sorry I have to say it) of the Prison Officers' Association, but, as the noble Baroness quite properly directs the question to me on behalf of the Government in your Lordships' House, I say that what we have felt is that it was necessary to issue what is called a headquarters memorandum saying that the duties of prison officers must be discharged if pay is to be expected in return. If the detail of work for a day is to be altered, then that has to be done by the decision of the governor who is responsible for the establishment concerned, on operational grounds. Therefore, there is no reason, except for the very unfortunate facts of this dispute, why the particular functions of prison
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establishments which the noble Baroness has mentioned in the debate should not continue to be carried on.
The noble Lord, Lord Hutchinson, asked me about Clause 6. How long, the noble Lord asked, is a constable entitled to detain a prisoner who cannot be admitted to prison? Of course, the answer is: for only so long as the constable cannot deliver the person detained into prison custody. All the time that the prisoner is in the constable's custody, the constable remains under the obligation set by the court to deliver him into prison custody.
My Lords, I had a reply for the noble Earl, Lord Longford. The noble Earl asked me a question which I think undoubtedly displayed the skill and erudition which I know the noble Earl has, but I hope he will not leave this debate at the end of the day thinking that he has totally floored my right honourable friend's very able officials in the Home Office quite as thoroughly as he may have expected. I think the answer to the noble Earl's specific question is that the current standard rate of one-third remission is prescribed in Rule 5 of the prison rules which were made under the Prison Act 1952. The rules may be amended subject to the Negative Resolution procedure. So far as concerns the noble Earl's example of the release of very large numbers of prisoners when Mr. Winston Churchill was Home Secretary in 1910, I do not know, but I assume that this was done under the Royal Prerogative of Mercy; but I think that that power is not quite appropriate to the situation in which we find ourselves today.
The Earl of LONGFORD: My Lords, may I ask the noble Lord a question? The Home Secretary apparently just did it off his own bat. The noble Lord has had the passage placed in front of him, which I believe was not familiar to him before, wad I am asking whether that power does not exist at the present time.
Lord BELSTEAD: My Lords, all I can say, off the cuff, is that Prison Rule 6, as the noble Earl will know, allows for the release of prisoners—I have the rule with me, and in a moment or two I will look up the exact wording—but it was really to put the matter beyond any doubt at all that, for the consideration

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of Parliament, we inserted Clause 5 into the Bill. We felt that this was the most open and sensible way to proceed in this particular matter.
May I briefly reply to my noble friend Lord Inglewood, who raised some three or more points? On the first one, if I may confine myself to that until we get to Clause 6, he asked an important question about who is going to see what the situation is in prison cells where, as we know from reading the press, at the present time conditions are not as we should want them and where, despite the fact that the police have done a magnificent job in looking after prisoners whose numbers have escalated enormously in the last few weeks, there is considerable worry about the conditions to be found. Formally, it is clear that members of the police authority for each police force have the right to enter and to inspect its police stations and, under the Police Act 1964, the police authority has a duty to secure the maintenance of an adequate and efficient force and to provide and maintain buildings for this purpose.
My noble friend specifically mentioned the Metropolitan Police when he made the valid point that members of Her Majesty's Inspectors of Constabulary do not extend the scope of their functions to the Metropolitan Police. I should like to remind my noble friend that it is my right honourable friend the Home Secretary who is the police authority for the police of the metropolis.
My Lords, I hope that I have at least indicated, not at any great length, that the Government fully appreciate the very proper concerns that have been expressed respecting civil rights and liberties. It is this particular point which obviously concerns all noble Lords—and, I can assure the House, concerns the Government—and which we have tried to take into account, for example, by devising the administrative system for the legal representation of defendants remanded in absentia—points which have been put to the Government both in another place and in your Lordships' House this afternoon. The powers in this Bill are carefully calculated to be the minimum we need at a very difficult time—and about that there can be no doubt at all. With that in mind, I hope that this Bill can be now read a second time.
On Question, Bill read 2a, and committed to a Committee of the Whole House.
5.23 p.m.
Lord BELSTEAD: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, that the House do now resolve itself into Committee.—(Lord Belstead.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD NUGENT OF GUILDFORD in the Chair.]
Clause 1 [Detention of prisoners in places approved by Secretary of State]:
Lord DONALDSON of KINGS-BRIDGE Lord DONALDSON of KINGS-BRIDGE moved Amendment No. 1:
Page 1, line 7, after "person" insert "over the age of 16".
The noble Lord said: This is a very obvious and easy amendment. It is a probing amendment. I wish to be assured that in so far as juveniles are affected by the new arrangements they are kept separate from people above the age of 16, either by being kept in a separate place in the same camp or, which would be better, in a completely separate place. I think no discussion is required here; the point is obvious. I hope the answer will be equally so.
Lord BELSTEAD: The amendment could have the presumably unintended effect of obliging the youngest prisoners (whom I hope very much are going to be few in number) to remain in police cells and thus endure conditions worse than those in temporary accommodation. Normally prisoners of 16 and under would be detained in a borstal or a detention centre. I think the Committee may like to know that at the present time the industrial action is not affecting unduly the reception of prisoners at both those types of accommodation. The whole problem of the situation stems from prisons not receiving those who are due to come to them. This, at the moment, I am relieved to say, is not the situation (so my information is) with regard to the accommodation in detention

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centres and borstals; although on occasion prisoners are having to wait a little longer than normally before they are admitted.
That does not answer the absolutely direct question which the noble Lord asked me in moving his amendment. The powers under Clause 3 for executive bail and under Clause 5 for early release are going to be administrative powers. My noble and learned friend the Lord Chancellor explained in his speech that he had considered whether some judicial element should be imported into the powers under Clause 3 and had decided that this would be inappropriate, because clearly, in a crisis situation it is an administrative matter. My right honourable friend who, as he made clear in another place, will be personally responsible for both these clauses as well as the Bill, will bear closely in mind what the noble Lord, Lord Donaldson, has said in this respect. We would endeavour to make sure that the expression of opinion that the noble Lord put would be met absolutely.
Baroness MASHAM of ILTON: May I ask the noble Lord whether the education departments have been involved in any way in the dispute and whether the under-16s have full education as usual?
Lord BELSTEAD: There are two points that I should like to make here. The first is to reiterate the point that I made to the noble Lord, Lord Donaldson, that, clearly, the action that has been taken has not, as far as receptions are concerned, affected in the same way the establishments which are responsible for young offenders; in other words, detention centres and borstals. I cannot honestly say to the noble Baroness, because I do not have the information, whether in all those particular establishments the education services are running normally. Perhaps I should reveal to the noble Baroness that obviously my right honourable friend is made aware from time to time of what the situation is in different establishments. Essentially, the pattern is different in different parts of the country and in different establishments. For that reason I cannot give the noble Baroness the assurance that I know she wants. All that I can say is that we are watching the situation carefully and that this is the sort of matter which undoubtedly would be discussed when the Prison Officers' Association and
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the department meet for discussions—which they are continuing to do from time to time.
5.30 p.m.
Lord DONALDSON of KINGSBRIDGE: I will accept the noble Lord's absolute assurance that every step will be taken to ensure that under-16s are not confined with over-16s. I accept the fact that he has told us that neither detention centres nor borstals are full at the moment; that is what I understood him to say. So the question of receptions will not create a problem for the next few days, anyway. I think that I am right in interpreting what he said as that.
What I want to feel sure about is that when it is clear to the prison department that boys and girls—particularly boys because there are more of them—under 16 are overflowing from detention centres and borstals they can, if possible, be put in a separate area in these camps, or whatever else is going to be used. I do not wish to divide the Committee on this and I am sure that the noble Lord is as anxious to do this as I am. But I want it to be clearly stated that we think that this should be done; we think it could be done, and I end by hoping that it will be done.
Lord BELSTEAD: I do not think I can add very much to what I have said. I hope that we can meet absolutely what the noble Lord is saying. We shall certainly endeavour to do our best to do so.
Lord DONALDSON of KINGSBRIDGE: I agree to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord DONALDSON of KINGSBRIDGE Lord DONALDSON of KINGSBRIDGE moved Amendment No. 2:
Page 1, line 14, at end insert—
"(2a) Arrangements shall be made for any approved place to be inspected regularly by the Board of Visitors of the most proximate prison, remand centre, borstal institution, or detention centre".
The noble Lord said: This is again an obvious and easy amendment which requires very little discussion. If prisoners are to be put in new and un-authorised places for a month or perhaps two months, the normal outside super-

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vision should be available to them which boards of visitors give. I cannot remember how many prisoners there are, but clearly one cannot appoint 170 boards of visitors this week to do this work. But it would be perfectly possible to ask boards of visitors from the nearest prison to allocate one or two members to visit periodically, inspect and receive complaints. I beg to move.
Baroness MASHAM of ILTON: Being a member of a board of visitors, I believe this is a reasonable request. I support Lord Donaldson's amendment.
Lord BELSTEAD: It is a wholly reasonable request. I hope, however, that the noble Lord will not ask for it to be written into the Bill. I should like to give him an absolute assurance that our minds are working on the same lines. I am grateful for the prodding which this amendment gives to us. The whole Committee will understand that, while it is our intention that persons detained in places which are to be approved under Clause 1 should be treated as far as possible in the same way as those detained in existing prisons, it may not be practicable to achieve that object fully.
It is for this reason that I give a full assurance that any approved places under Clause 1 will be made open to a board of visitors' attention in one way or another. We have already set in train arrangements to try to see that something on these lines is set up at Frankland prison in Durham, if that establishment has to be used. I do not think I can add anything more except to say that I hope that meets the noble Lord's point fully.
Lord DONALDSON of KINGSBRIDGE: I am very grateful. I hope that the noble Lord will not be put off by distance. This is a question of money and members of boards of visitors will be quite prepared to visit if the cost of their petrol (at its present exorbitant rate) is paid for. This is something that the noble Lord must bear in mind. I am happy to accept his assurance, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 3 trot moved.]
On Question, Whether Clause 1 shall stand part of the Bill?
5.35 p.m.
Lord RENTON: May I raise a small point which has puzzled me slightly? Having tried to get to the bottom of it, I will give the Committee the explanation as it appears to me. It would be helpful if we were to understand clearly what the position is and perhaps my noble and learned friend can assist me. If we turn to the first subsection of Clause 1, we find:
"This section applies to any person whose detention in a prison, remand centre, Borstal institution or detention centre is for the time being authorised by law".
If we look at subsection (3) we see:
"In relation to a person to whom this section applies, whether detained in an approved place or not, the Secretary of State shall have all such powers as he would have if every approved place were a prison".
That is a prison only; there is no mention there of a remand centre, a borstal institution or a detention centre. So I went hopefully to Halsbury's Statutes in order to see whether there was a definition of a prison. But the only definition of a prison is a purely negative one to be found in Sections 1 and 53(1) of the Prison Act 1952, where it says that "prison" does not include a naval, military or air force prison. So that gets one no further forward.
It may be that the Government have some way of explaining to the Committee—and of carrying this into law—that the word "prison" has a much wider sense and includes remand centre, borstal institution or detention centre in the context of this clause. One gains some comfort for that point of view by the fact that in subsection (5) of Clause 1 we find:
"the Secretary of State may by order direct that any rules in force under section 47 of the Prison Act 1952 shall, in their application to approved places generally, or to any approved place specified in the order, have effect with such modifications as may be so specified".
Section 47 of the Prisons Act 1952 is the section which gives the Secretary of State power to make the prison rules. The prison rules are well known and when we turn to them we find that they apply not only to prisons but to borstals and detention centres. I do not think they apply to attendance centres but it is perhaps not necessary that they should. At

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any rate, as we have only the word "prison" as the last word on page 1, if it is intended that that word shall have a wider meaning perhaps we could be told that it will have that effect in law.
The LORD CHANCELLOR: My noble friend has unravelled this matter with a piece of unrivalled research. I do not think I can improve upon it. The situation is even simpler. The clause applies to persons who are subject to be detained for the time being by the authority of law in any of the named places, and the Secretary of State has power in relation to an approved place because that is where they will go under Clause 1.
I agree with what my noble friend said about extending the meaning of "prison" for the purposes of this subsection. I do not think that I can improve on what he said. It applies of course to prisoners who are detained in temporary accommodation and also those elsewhere. It will ensure that the Secretary of State may transfer a person from a prison to a camp, and vice versa, and order the temporary removal of a prisoner in a camp for judicial, medical or other purposes.
Lord RENTON: I am much obliged to my noble and learned friend.
Lord DAVIES of LEEK: This Bill contains provisions with respect to the detention of persons and the release from custody of such persons. It is intended to make provision for reducing the number committed to such institutions and to modify the law. That is what this temporary Bill is doing; it is modifying the law. Consequently common sense says that anything the Government approve of as a place of detention or incarceration is a prison. I would leave it just at that, because as a layman that is how it seems to me.
On Question, Clause 1 agreed to.
5.41 p.m.
Lord ELWYN-JONES Lord ELWYN-JONES moved Amendment No. 4:
After Clause 1, insert the following new clause:
("Prison Rules
.—(1) Notwithstanding section 1, the following Rules, as provided by the Prison Rules 1964 (S.I. 1964 No. 388) shall apply in all "approved places" under section 1:
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Rule

2

(Maintenance of order and discipline)

Rule

7

(Information to prisoners)

Rule

17

(Medical attendance)

Rule

18

(Special illnesses and conditions)

Rule

19

(Notification of illness and death)

Rule

27

(Daily exercise)

Rule

36

(Securing release)

Rule

44

(Use of force)

(2) All outgoing mail of persons detained in "approved places" shall be forwarded without inspection unless a search warrant has been duly obtained.
(3) Incoming mail shall be opened in the prisoner's presence and inspected for contraband, but correspondence shall not be read or photocopied. Exceptions to this rule shall be made only with the authority of the Secretary of State.").
The noble and learned Lord said: The purpose of inserting this new clause is to seek to ensure that those who are to be held in "approved places", to use the language of Clause 1 of the Bill, shall enjoy at any rate some of the basic rights that the prison rules give to those who are held in prisons. I have identified what seem to me to be some of the key ones. I do not know that I need read them out to your Lordships as they are probably familiar ground. Their essence is to be beneficial to prisoners—for example, Rule 2, which prima facie does not look very helpful to the prisoner as it refers to the maintenance of order and discipline. Indeed, the rule says:
"Order and discipline shall be maintained with firmness but with no more restriction than is required for safe custody and well-ordered community life. In the control of prisoners officers shall seek to influence them through their own example and leadership and to enlist their willing co-operation. At all times the treatment of prisoners shall be such as to encourage their self-respect and a sense of personal responsibility, but a prisoner shall not be employed in any disciplinary capacity".
There is the duty to provide information to prisoners in Rule 7; medical attendance, Rule 17. Rule 18 refers to special illnesses and conditions; Rule 19 to notification of illness and death and Rule 27 to daily exercise. Then there is Rule 36, securing release, which reads:
"A person detained in prison, in default of finding a surety, may communicate with any relative or friend to arrange for the surety".
Then there is Rule 44 relating to the use of force, which says:
"An officer in dealing with a prisoner shall not use force unnecessarily and, when the application of force to a prisoner is necessary, no more force than is necessary shall be used".
The noble and learned Lord the Lord Chancellor, in the debate on Second

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Reading indicated that these rules were intended to be applied, and the only concern that I had was the proviso in Clause 1 (5), which reads:
"In the case of any particular approved place the said enactments"
in subsection (4)—
"shall apply in accordance with subsection (4) only so far as is practicable in the circumstances;".
I should like to get some assurances about the extent and nature of that proviso.
Lord BELSTEAD: The Government are determined to ensure that so fas as is humanly possible conditions in approved places under Clause 1 shall meet all the objectives of the prison system proper, including the requirements of the prison rules—not only those listed in the noble and learned Lord's amendment, but in the prison rules at large. However, the House will recognise that there are limitations which the situation we are now in is bound to impose, and to require absolute compliance with some rules could be detrimental to the broad interests of security, staff safety and inmate welfare. Such a provision, moreover, could imply that less importance should be attached to other important rules.
I do not think I can really add very much else to that general statement. I could give examples which obviously have been very much in the minds of those of us who are connected with the Prison Department and working in the Home Office recently. May I give just one or two. Clearly it is the firm intention that educational needs, also, obviously, medical needs and—although I do not wish to sound unduly pious about this—also the spiritual needs of those who are kept in approved places should be properly looked after.
Again, I hope I am not sounding evasive when I say that this assurance, given across the Floor of the House, represents the firm intention of the Government in setting up, if we have to set up, approved places. This would be the way we should try to go, without writing requirements into the legislation. The difficulty about starting to write such requirements is that when one looks at requirements (2) and (3) of the noble and learned Lord's amendment—and
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perhaps I can see there the hand of the noble Lord, Lord Donaldson—there one finds certain requirements regarding the censorship of mail, both outgoing and incoming. On a general point of principle which I have mentioned already and which was mentioned earlier than that by the noble Lord, Lord Donaldson, the Government would not see this temporary Bill as being the vehicle for introducing permanently substantive changes in the ordering of prison life which have been and remain matters of current debate. It is for those reasons that I hope the noble and learned Lord will not press the amendment, although I must confess that I agree with a great deal of the thrust of it.
Lord ELWYN-JONES: I apologise for omitting reference to paragraphs (2) and (3) of the new clause, to which I attach importance; but in the light of the assurance given by the noble Lord and the fact that it will be on the record, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 [Remand]:
Lord ELWYN-JONES Lord ELWYN-JONES moved Amendment No. 5:
Page 2, line 23, after "person" insert "who is legally represented".
The noble and learned Lord said: The noble Lord, Lord Belstead, commented on this point in his speech on Second Reading. I submit that it is an important point and it is the clause of the Bill which ought most carefully to be looked at from the point of view of the rights of the subject who is detained in custody. The amendment proposes the addition of the words "who is legally represented" in line 23 on page 2. The noble Lord, Lord Belstead, informed your Lordships that the Minister of State in another place proposed on Second Reading that a circular should be issued to the courts, asking that they give serious consideration to the granting of legal aid at the first remand hearing when the defendant was present. If that were done, at the second hearing the court would be able to consider representations by the lawyer on the defendant's behalf.
The amendment that I move requires that legal representation should have been

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obtained for the defendant at the first hearing if his right to a subsequent personal appearance is to be set aside. If that were not arranged for, he would be brought back after eight days for a second hearing. If legal representation were then arranged, his right to further personal appearance would then be set aside. I submit that if some such provision as the amendment proposes is not made, an inarticulate defendant could be remanded in custody without the benefit of a statement by a legal representative or possible grounds for bail, and could thereafter remain in custody without the right of a further personal appearance on a subsequent occasion. That is really the reason for seeking to protect the position of the individual in those circumstances. I beg to move.
Lord WIGODER: I also referred to this matter on Second Reading. In his reply the noble Lord, Lord Belstead, indicated that a circular would be sent out. If I may say so, for my part I found his reply acceptable and satisfactory in these rather difficult circumstances. I would only venture to remind the noble Lord of a fact of which I have no doubt he is well aware, which is that there are some magistrates' courts who are notoriously reluctant to grant legal aid unless they are compelled to do so. Therefore, no doubt the circular will be in the most stringent terms.
Lord SOMERS: I am afraid I am no lawyer, but would it not be possible to insert words such as
"who must, when possible, be legally represented"?
Lord BELSTEAD: I fully understand the reason the noble and learned Lord, Lord Elwyn-Jones, has moved this amendment. It is true that since the amendment was put down before the House met this afternoon I have sought to follow my noble and learned friend the Lord Chancellor and I repeated the assurance which my honourable friend the Minister of State gave in another place that a circular would be sent out about this matter. But this does not change the fact that this is an important amendment. May I try to do two things? First of all, may I briefly repeat the effect of what my honourable friend Mr. Brittan said in
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another place? The assurance which he gave there, and which I repeat now, is that we are proposing, by means of a circular to the courts, to ask the courts to give the most serious consideration to the grant of legal aid at the first remand hearing when the defendant is present, rather than at the second remand hearing, as happens now.
Bearing in mind that there are, on not a few occasions, as I realise, those who are accused who appear before the court and for one reason or another find themselves lost for words, I think it is most important that this circular is going to be directed in those sort of terms; because clearly it will be the advice to the courts, who I am sure will fully understand and take on board the reason why this is being given, that the courts would take the initiative in putting the matter to the accused who appears before them.
I realise that that is not quite the end of the matter. This is not a completely fail-safe assurance. Clearly the court might feel that they would wish not to follow the advice given. That brings me to the second point I want to make, which is that as a result of amendments written into the Bill last night in another place by the Government, as a result of advice which came from the Opposition, the length of time which the Bill now lasts is only one month. It is genuinely temporary in that way unless Parliament sees fit to increase the length of time. I think I should add to the argument I am seeking to put that if at the end of one month, if the state of dispute was continuing, it was found that the courts were not following the advice which had been tendered in the circular then I think Parliament would want to think again about this important matter. I know that does not give full satisfaction to the effect of the amendment which the noble and learned Lord has moved, but, as I said on Second Reading, I do hope we can proceed on this matter by way of circular and not by way of amendment to the Bill.
Lord RENTON: We should not over-look the fact, which is familiar to those of us who have had experience of practice in the criminal courts, that there are quite a number of accused people who will not be represented by counsel, who prefer to represent themselves. By saying

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"who is legally represented"
the amendment would, in effect, make it a condition precedent that there should be legal representation before the powers contained in this clause could be used, and I think that it would be unfortunate to frustrate the use of those powers by making such a condition precedent.
Lord HUTCHINSON of LULLINGTON: May I ask the Minister whether he will make it his business to see that these circulars go to the professional bodies of the lawyers? Very often circulars go to courts about which the lawyers know nothing at all.
Lord BELSTEAD: I am sure we will certainly endeavour to send them copies. In the time-honoured words, I will pass this on to my right honourable friend with some alacrity because, as the noble Lord can guess, we intend to try to send out very shortly a circular about this matter.
Lord ELWYN-JONES: In the light of what the noble Lord, Lord Renton, has said, perhaps I should have said—
"who is offered legal aid".
In view of what the noble Lord, Lord Belstead, has said—that this is going to be put into the circular in quite specific terms—I have it in mind to ask leave to withdraw the amendment. But as the noble Lord intimated, a circular is not a directive, but no doubt it carries a great deal of weight; I hope it does, at the very least. In the light of the positive assurance of the intention to put what is proposed in the circular, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.57 p.m.
Lord ELWYN-JONES Lord ELWYN-JONES moved Amendment No. 6:
Page 2, line 28, after "unless" insert—
"he has been detained in custody for a continuous period of 28 days since he last appeared or was brought before a court or".
The noble and learned Lord said: This is an important amendment. The regular appearance by an unconvicted accused person is an ancient and, indeed, necessary safeguard against abuse and injustice. The
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Bill would not only suspend the present requirements of a weekly court appearance but would not require any appearance by the defendant for an indefinite period. This amendment would at least ensure that a right of regular personal appearance was retained, at any rate every 28 days. With respect, I should have thought that this was a minimal provision. I beg to move.
Lord BELSTEAD: The aim behind this amendment is, of course, very clear, and the noble and learned Lord has explained it. Since the objective of the amendment appeals very much to the hearts of those who listened to the noble and learned Lord—I mean that quite genuinely—I deploy with a little trepidation any arguments that I have against it. But I would ask the Committee, in looking at this amendment, to bear in mind that the powers in Part I of this Bill are temporary; they last for only one month at a time.
Secondly, from the operational point of view it is very important that the number of remand appearances, with the constant escorting duties which they entail, should be kept to the barest minimum. That is not just a matter of administrative convenience or smooth words of Government; this is absolutely at the heart of the difficulties which we are in at the present time. Thirdly, the courts will have the power to issue a direction ordering production, and we would trust to the courts' good sense. Fourthly, there could, I think, be some complicated problems on the ground in settling whether or not a particular prisoner had been held, let us say, for 29 days, or whether he had been held for only 28 days or for less. It could be difficult for the police to establish exactly when a prisoner made his last court appearance; and, again, I say that in the context of an emergency situation.
Fifthly, if, by inadvertence, the 28-day period were to be exceeded, the power of detention would lapse and the prisoner could be, to use an expression that I used earlier, out on the streets—and he could, of course, be a very dangerous person. Sixthly, we are, as your Lordships know, trying to do everything we can to ensure that prisoners remanded in absentia are legally represented—the subject of the previous amendment. Against the accumulation of those problems which I have

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gathered together—not cobbled together, as I am sure your Lordships would not say to me—I must ask the Committee, while recognising the spirit of the amendment, not to accept it.
Lord DONALDSON of KINGSBRIDGE: I do not think this is quite the end of it, because the emergency can be extended by a month and it seems to me that, without trying to get the Bill altered, which I realise is very difficult at this stage, we want a fairly positive assurance from the Government that the Secretary of State himself will be informed if any prisoner on remand has not been seen for over 28 days so that he can look at the case himself and do something about it. One hopes that it would not be very many. But does the noble Lord think that something of that kind could be given to us in order to keep us quiet?
The LORD CHANCELLOR: I quite take the point that my noble friend has made. I will certainly see that the point which he has made is passed to my right honourable friend. However, there are two points which I think I ought to make. The first is a silly one but I think I ought to make it, and it is that one must deal in multiples of eight days, owing to the terms of the existing law, and 28 is not, unless I am mistaken, a multiple of eight. So one really has to do that.
Secondly, as I see it, the problem arises in this way. The difficulty that we are dealing with is the refusal of the prison officers in the great number of establishments to let people into prison. The moment someone goes to court on remand as a physical appearance, he cannot get back in. He then has to go—if you are keeping him in custody—to one of these approved places, which are, I think, ex hypothesi not as attractive as the place from which he came. This gives a practical sense to this difficulty, which the lawyer has to take on board. Once you have let him out, you cannot get him back in because of the action of the prison officers, and if you cannot get him in you have to put him somewhere else which is less agreeable than the place from which he came.
I was rather taken by what my noble twin said on Second Reading, that it does not necessarily follow—this is something of which I have been made very
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conscious by my Secretary of Commissions—that, in every case, even apart from the emergency, the prisoner is very keen to come out and travel a long way in rather uncomfortable circumstances, be popped into a police cell, have to wait till his case is called on and then be remanded back whence he came. My own feeling is that this whole question of the eight-day period of remand is one which, when we deal with the matter on a broader basis we shall have to look at, because the wishes of the prisoner are something which we have to take into account.
Lord DONALDSON of KINGSBRIDGE: Would it be possible to deduce from what the noble and learned Lord has said that if we call it 32 days—unless the prisoner wishes it not to happen or something of that kind—that could be put up to the Secretary of State? It seems to me that that would meet my point absolutely.
The LORD CHANCELLOR: What I have to do is to see, through my noble friend, that the Secretary of State takes this point generally on hoard, in the light of the exchanges which have taken place.
Lord ELWYN-JONES: In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 agreed to.
Clause 3 [Release of persons committed or remanded in custody]:
6.5 p.m.
Lord ELWYN-JONES Lord ELWYN-JONES moved Amendment No. 7:
Page 4, leave out line 3, and insert "brought before a court at the earliest opportunity after his arrest".
The noble and learned Lord said: As the clause stands, the prisoner who has been remanded in custody and then released on bail by the Home Secretary can be arrested in the circumstances that are set out in Clause 3(6). The amendment would ensure that, in those circumstances, he would be brought before a court at the earliest opportunity after his arrest, rather than await the due course of law which could be for up to three weeks if

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the person was originally remanded in custody after conviction but before sentence. So the amendment would expedite the process of bringing him before the court, and it seems to us to be a more helpful provision than the ancient words "in due course of law" which, in the circumstances, have a certain lack of precision. I beg to move.
Lord BELSTEAD: As with practically all the proposals which the noble and learned Lord puts forward, this is helpful. But I wonder—and I hesitate to cross swords with the noble and learned Lord on my interpretation—whether it would help other people who are caused to be brought before a court, bearing in mind that the courts are very full of business at the present time. It occurs to me that acceptance of this amendment would mean that there would be, to put it in old-fashioned terms, a certain amount of immediate queue-jumping by those who had availed themselves of remaining in freedom, having been given executive bail under Clause 3, and who then had to be arrested by a constable under subsection (6). It is simply for that reason that I wonder whether it really would be very helpful to accept the present amendment, and whether there really is justification for interfering with the normal processes as proposed in the amendment.
Lord ELWYN-JONES: I confess that I find the argument that he would jump the queue on others who might have been awaiting trial for quite a long time not a very appealing one, and I am not very happy about it. The sooner people can be brought before the court the better. Probably that will be regarded as a platitude. I see the noble and learned Lord the Lord Chancellor looking somewhat sympathetic to me, but perhaps I am misinterpreting his visage.
The LORD CHANCELLOR: I hope that I am always very sympathetic. I was just wondering whether we have lost perspective in this matter. The position is that you are dealing in Clause 3 ex hypothesi with people to whom the court has refused bail; that is, people who are not entitled to bail in the ordinary course of events. Then the executive, in the right given by Clause 3, overrides the discretion of the court and it may impose
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conditions of behaviour. The effect of the conditions being broken, or events of misbehaviour taking place, is simply to put the person back where he was when he started; that is, under the jurisdiction of the court, the court having refused bail. He will, of course, be able to apply for bail at any time that is appropriate, as he could before. He would have the same rights as any other prisoner who had been refused bail. But he would not be given a better right than another prisoner who had been refused bail because, against the better judgment of the court, he had been given what, for this purpose, must be the advantage of executive release. When he is put back inside for not be-having himself, he is only back where he started. He is not any worse off. So I wonder whether or not, with that in mind and with the further assurance that of course I shall see to it that my right honourable friend's attention has been drawn to this amendment, the noble and learned Lord will feel that I have been sympathetic.
Lord ELWYN-JONES: The noble and learned Lord has indeed been sympathetic to the point where I ask for leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 agreed to.
Clause 4 [Restriction on committal for non-payment of money, etc.]:
6.10 p.m.
Lord DONALDSON of KINGS-BRIDGE Lord DONALDSON of KINGS-BRIDGE moved Amendment No. 8:
Page 4, line 4, leave out "Where".
The noble Lord said: With the leave of the Committee, I should like to speak to Amendments Nos. 8, 9 and 10 together. If they were accepted, Clause 4(1) would read as follows:
"A magistrates' court shall not commit any person to prison—

(a) for failure to pay any sum of money; or

(b) for want of sufficient distress to satisfy any sum of money; or

(c) for offences of begging and sleeping out; or

(d) for offences of soliciting for an immoral purpose".

The object behind this amendment is twofold. First, we think that in the

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emergency this should apply to all magistrates' courts and should not wait for the Secretary of State to give them orders one by one, which is implied by the phrase as it stands; and, secondly, we feel that the offences of begging and sleeping out and the offence of soliciting for an immoral purpose are non-injurious—in the physical sense—offences with which it is unreasonable to fill the prisons at this time. I think it would be desirable to include these offences. We put down drunkenness, but there is no imprisonment for drunkenness, as such, so we took it out again. What I am trying to get at here is quite obvious, and I beg to move.
Lord HALE: I should like to applaud my noble friend on this amendment, which appears to effect a major and permanent alteration in the law of a type which I have been most anxiously seeking for many, many years. The amendment as moved—I hope that the noble Lord will not alter it because of anything I have to say—leaves out any possibility of cancellation of notification to the court and leaves a perfectly clear and coherent statement that a magistrates' court shall not commit. It may well be argued that the operation of this statute will come to an end by the passage of time or by the cancellation of its provisions by regulation or by order.
In the bits of the debate in another place which I heard and, indeed, in the speech of the noble Lord, Lord Inglewood, on another matter, doubts were expressed about the abolition of certain provisions. If I heard him correctly, the noble Lord, Lord Inglewood, said that we all know that the habit of governments after they have introduced an emergency measure is to be attracted by certain parts of it and therefore not to cancel it. If this were done it would remove the questions which I had intended to ask on clause stand part.
Although I do not want to waste time and although I did not seek to intervene at Second Reading in order to be able briefly to deal with these matters now I should point out the problem. There is some doubt as to the meaning of "notification" in subsection (2). The word appears to relate to notification to the court. As I understand it, the clause is intended to mean that we can let out a lot of relatively poor persons under a single collective notice from one court which normally commits to a certain
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prison and that in that way we shall be doing the least possible harm to the community. No doubt there will be major difficulties over people who have been tipped out—but that is dealt with in other clauses—in order to make available collective accommodation in prison. That is as I understand it, but I do not think that it is very clear.
However, my noble friend's proposal is very clear. It is: "Let's forget it all, boys; let's abolish all this nonsense about imprisonment for debt". Announcements have been made once every 40 years during the last 150 or 160 years, if the noble and learned Lord the Lord Chancellor wants me to be mathematically correct, about the abolition of imprisonment for debt. Charles Dickens rejoiced in it and the noble Lord, Lord Donaldson of Kingsbridge, is doing it at the most convenient possible time when it really would help the administration of justice generally and diminish the problem of three in a cell and overcrowding. I think it is an admirable proposition. Even if it does not mean precisely what I am saying—and I suspect that it does—I should be happy to vote for the noble Lord's amendment.
Lord RENTON: With respect to the noble Lords opposite, I do not think the Government should accept this amendment. The purpose of the clause is to deal with a considerable number of people who are sent to prison simply for non-payment of fines or other forms of monetary awards made by the courts—a clear-cut case for special treatment in the circumstances of the Bill. By singling out two particular and fairly unusual forms of offence leading to imprisonment—I shall explain why they are unusual in a moment—the amendment is attempting to extend the clause artificially.
The offences of begging and sleeping out very rarely indeed, I should have thought, lead to a prison sentence. As for offences of soliciting for an immoral purpose, the whole purpose of the Street Offences Act, which many years ago, with the late Lord Dilhorne, I had to pilot through its Standing Committee in another place, was to prevent people from being sent to prison. The noble Baroness, Lady Jeger, will remember it because she was on that Standing Committee. We succeeded in allowing a very considerable

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number of offences of soliciting to be committed before the ultimate sanction of imprisonment was applied. Therefore, I submit that that is a fairly rare cause of imprisonment and should not be singled out, any more than the other one, for special treatment within the context of this clause, which, as I say, has a very special purpose.
Lord AVEBURY: May I follow the noble Lord, Lord Renton, and first of all apologise for not having been here earlier? This is a matter of particular concern to me because I have twice tried to amend the Street Offences Act so as to abolish the penalty of imprisonment for soliciting. Indeed, I had a substantial measure of support in your Lordships' House for that proposition.
With great respect to the noble Lord, Lord Renton, it is not true to say that a substantial number of women are not committed to prison for this offence. The noble Lord, Lord Belstead, has been good enough to give me the figures for the last two years, I think, and it amounts to several hundred women every year. While this may be a minor contribution to the objective which the Home Secretary hopes to achieve by means of this Bill, I should have thought that he would welcome every contribution the House can possibly make, and this is one which is quite plain and easily understood and easily put into effect.
I should add that a great number of women who are convicted of soliciting ultimately go to prison for non-payment of fines, so the two things are not so totally unconnected as the noble Lord, Lord Lord Renton, imagines. As I ventured to remark to your Lordships on the last occasion when I introduced a Bill to abolish imprisonment for soliciting, sometimes women go to prison for as much as nine months for this offence because, as the noble Lord, Lord Renton, correctly remarks, the courts try to avoid sentences of imprisonment. They often do so by imposing a suspended sentence, so that a woman may have two suspended sentences of three months and then she comes before the magistrates for a third time for the same offence and the previous two suspended sentences are then put into opera-
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tion, with the result that the woman spends a total of nine months in prison.
I must honestly say that this is counterproductive, because after a woman comes out of prison, having been there for nine months for the offence of soliciting, and particularly if she has children to support, as is quite often the case, she may be deeply in debt to the landlord and she may have HP commitments, and so on, and therefore she has no choice but to go back "on the game" and to repeat the offence for which she was first committed. So I hope that the noble Lord will see fit to accept this amendment, notwithstanding the fact that it goes so much further than the two limited categories which are mentioned in the subsection.
Lord DONALDSON of KINGSBRIDGE: Before the noble Lord replies, may I say first that I am grateful for the support; secondly, I do not know what the noble Lord, Lord Renton, means by "artificial". What was artificial about including this? That is a puzzle to me. I do not know that it is worth going into, but it seemed to me to be quite a wrong adverb. I should have thought that my paragraphs (c) and (d) were absolutely consistent with paragraphs (a) and (b). But as the numbers are small I do not think it is worth dividing the Committee. I would only remind the noble Lord of the slogan on which I, as a Left-Wing character in those days, was brought up, which was "the grand impartiality of the British law, which forbids both rich and poor to sleep on doorsteps."
6.24 p.m.
Lord HAILSHAM of SAINT MARYLEBONE: I really do not think we ought to involve ourselves in a general attempt to reform the law as part of this Bill. I wish I could persuade the noble Lord, Lord Hale—but apparently I cannot get through to him—that this has nothing at all to do with imprisonment for debt. It deals with a temporary provision for so long as these provisions last, which is one month, that temporary provision being that a person shall not be sent to prison for failure to pay fines or failure to pay his wife's maintenance. That, broadly speaking, I am right about. To bring in begging and prostitution and the tremendous business which the noble

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Lord, Lord Avebury, brought in about his long campaign to stop imprisonment for street-walking, really like—
"The flowers that bloom in the Spring … Have nothing to do with the case".
Lord HALE: I am not attempting to bring in begging; I never mentioned it. It was not my attempt to bring in the other cases; I never mentioned them. I merely accepted the amendment proposed by the noble Lord, Lord Donaldson, as including a minor aspiration of my own. If the noble and learned Lord really is saying that people who are subject to a magisterial process in respect of the non-payment of a fine or the non-payment of debt—and indeed the clause includes a failure to provide or to have enough goods to enable a distress to be levied, which of course may be a temporary matter—are to be told when they get to the court that the Home Office has sent a notice to say that the court is not to deal with debt cases until the prison warders' position has been settled, well, these are remote matters in themselves.
The noble and learned Lord the Lord Chancellor should not feel that we are going very far if we are trying to deal with prison warders by measures of this kind. It is surely rather remote from the justice of the matter. I made no attempt to include the two kinds of prisoners mentioned by the noble Lord, Lord Donaldson. I indicated that if he was going to press the matter to a Division I would support him in the Lobby, and indeed support him with rather more enthusiasm because the proposals made by the noble Lord, Lord Donaldson, are, in any case, rather dear to my heart. I think on the whole that the noble and learned Lord, with all these complicated matters to understand, has really failed to understand the whole nature of the amendment.
Lord AVEBURY: I venture to inflict one further sentence on the Committee and that is to remark that in saying that this amendment has "nothing to do with the case" the noble and learned Lord, the Lord Chancellor, may have overlooked the sentence in the Long Title of the Bill which reads:
"to make provision for reducing the numbers committed to such institutions".
Lord DONALDSON of KINGSBRIDGE: I have to agree with the noble
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and learned Lord that my amendment has "nothing to do with the case". I shall not go on with the quotation, because that really has nothing to do with it, but I think it would be very wise to include any reasonably harmless thing for which people are even occasionally sent to prison if the idea is to have fewer people in prison. But I certainly do not think the amendment is worth pressing, because I accept the statement made by the noble and learned Lord, which I have made myself., that this is not an occasion for trying to reform the law permanently. When that time comes I shall be with the noble Lord, Lord Avebury, and the noble Lord, Lord Hale. With the permission of the Committee, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 9, 10 and 11, not moved.]
Clauses 4 and 5 agreed to.
Clause 6 [Other provisions]:
6.29 p.m.
Lord ELWYN-JONES Lord ELWYN-JONES moved Amendment No. 12:
Page 5, line 21, after "court" insert: "provided that, if the person so requests, the place where the person is held is notified either to that person's solicitor or next of kin, and arrangements are made for visiting".
The noble and learned Lord said: This amendment would ensure that when someone is kept in an approved place, if he requests it his solicitor or next of kin should be informed of his whereabouts and allowed to visit him. A prisoner would have such rights if he was held in a normal penal establishment, and in our submission this would be an appropriate provision and right for a person held in the circumstances which are set out in the last subsection of Clause 6. I beg to move.
Lord BELSTEAD: The purpose of Clause 6 is to place beyond any legal doubt the power of the police to detain in their custody a person who has been committed to prison by a court but whom the police cannot deliver into prison custody. I think it is important for me to remind the Committee that this is an attempt to put beyond legal doubt this power, but it is attached very much to the

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present emergency situation because the power is in order to detain in police custody when the police cannot deliver the person detained into prison custody. There is no wish to legalise in some way the keeping of somebody in police custody for the sake of it; indeed the very opposite. I feel that the amendment would perhaps serve to reintroduce some legal doubts.
As to the first part of the amendment, concerning notification, certainly I can give an assurance that it is already standard police practice. Clearly it is right that a person to whom the clause applies should have his or her whereabouts notified, if he or she wishes, to any person reasonably named by the person in custody. But of course some prisoners may have neither next-of-kin nor a solicitor, and the legality of their detention should not be in doubt on this ground. The second part of the amendment, concerning visiting arrangements, I think makes the problem a little more difficult. The plain fact is that in many cases it is simply not practicable to allow social or family visits to prisoners detained in police cells, particularly in the present circumstances.
May I return to what I was trying to say at the beginning. The purpose of the clause is to put beyond legal doubt the right of the police to keep in police custody those who cannot be committed to prison on the order of the court because they cannot be delivered into prison custody. That is the reason for it, and it is under those circumstances, which are not of the police's seeking and not of the Government's seeking, that Clause 6 appears in the Bill. I think it would make that situation more difficult if the amendment were to be accepted.
Lord ELWYN-JONES: I believe I am right in thinking that this is one of the parts of the Bill which are going to be permanent—is it not? Therefore, it is a matter of some significance, more so than in perhaps some of the other matters, where the argument is, "This, after all, is only going to last a month, so do not worry unduly," which was the reassurance that one has received from time to time. I am not very happy about the fact that, as I understand it, there is no assurance that arrangements of this kind can be made wherever practicable. I do not think I have extracted that so far from
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the noble Lord, Lord Belstead. If he were willing to go that far with me, I might be willing to withdraw the amendment.
The LORD CHANCELLOR: If I may intervene, I think I can go that far and that the noble and learned Lord can extract that from me. It is obviously right. But I do not think the amendment qua amendment will do. I think it is perfectly right to try to extract from the Government an assurance that where a person is being kept otherwise than in a known place of detention the appropriate person should be informed of the detainee's whereabouts, whether it is under Clause 6 or under Clause 1. I think people have got to know where these detainees are. I am sure that this will be taken on board, and I am sure I can give that assurance on behalf of my right honourable friend.
However, what I think my noble friend by my side was trying to get across was this. Clause 6 is put in the Bill in case something like this ever happened again, so that no question can arise as to the vires of the police, where the situation arises, to carry out the detention. The point about notification is an absolutely valid one policy-wise, but I do not think if it were put in in this way it would do other than reintroduce into the vires question a new doubt about the vires, which it is the whole purpose of this clause to dispel.
Lord INGLEWOOD: It seems to me the noble and learned Lord the Lord Chancellor is rather simplifying this issue. It is something that will not end at the end of the month. It refers to something being practicable. If I understood the noble and learned Lord aright, he has in mind a repetition of some sort of crisis which means that prisons are full and there is no place for men to be delivered. In fact, I can see other reasons. If a police force is greatly under strength and the distance that the man has to go to prison is an extremely long distance, there is every reason why he might be detained for a day or two until other men return from leave, or for some other reason, which would enable him to be sent, perhaps 100 miles or more, when it would be far less inconvenient. I do not accept that this is simply a power which we should associate with the sort of difficult situation we are now in.
Lord RENTON: It does not seem to me that this is a new power at all. In fact, it seems merely to represent what has for years and years been the normal practice.
The LORD CHANCELLOR: I think my noble friend is right. I do not think I am over-simplifying it at all. I entirely accept the policy which the noble and learned Lord has put forward, but I do not think I am over-simplifying it. This is not a new power. Our opinion is that it is really a removal of doubt, a statement of what the law is. Obviously it would be quite wrong for me to give the impression that notification would not take place. It is the practice and it ought to remain the practice.
Lord DONALDSON of KINGSBRIDGE: It is just worth adding that it must be with the prisoner's consent, because a lot of prisoners would be furious if their wives were told they were inside.
The LORD CHANCELLOR: I fully take that point on board, too. I think the amendment really intended that.
Lord ELWYN-JONES: On the strength of that assurance, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 6 shall stand part of the Bill?
6.36 p.m.
Lord DONALDSON of KINGSBRIDGE: Perhaps I may make one short remark, which I think is out of order because it is on our amendment which was not passed. Though it is probably impossible to arrange proper visiting in police cells, I take it that every effort will be made to make it possible in the larger camps or anything else which are being set up. I should like an assurance on that.
Lord BELSTEAD: This is a hypothetical question, because we have not got so far as designating what is an approved place. So I cannot go further than to say that we take very firmly on
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board what the noble Lord has said. As I said earlier, already our mind has gone in the same direction as his in the sense that there is going to be outside monitoring of what is happening certainly in the first of these approved places, if it is to be opened, by virtue of activities of boards of visitors.
Lord ELWYN-JONES: I am sure there will be a wish to diminish rather than increase the sufferings of prisoners under the new arrangements.
Lord INGLEWOOD: In clarification of what the noble Lord, Lord Belstead, said in his Second Reading speech in reply to something I asked, may I ask him to be a little more explicit about a police authority's rights to enter police premises? I did not mean, in the middle of the day, having a look to see whether new roofs are necessary or the outside or inside needed repainting. I meant to ask who, if anybody, had a right to enter at any time of day he liked, and maybe late at night when cell passages are filling up. I understood his reply to mean that it was in fact the case. If it is so, I can think of a number of chief constables who will be absolutely furious.
I would ask the noble Lord, if he would be so good, in their interests as well as ours, to clear up exactly what was meant. Furthermore, with regard to the Metropolitan Police, where the Secretary of State is the authority, does that mean that he alone has the right, or could he nominate the noble Lord, Lord Belstead, or one of his senior officials? I think this is an important point.
Lord BELSTEAD: The operational responsibility for the way in which a force discharges its policing responsibilities is of course for the chief constable. This means that when a force is particularly stretched on, let us say, a very busy Saturday night, maybe it would not be as welcome as it might be at another time if somebody said they would like to look round the police station. But I can give my noble friend an assurance that facilities would, as a matter of course and of right, be provided for members of police authorities to visit police accommodation. So far as the Metropolitan Police is con-

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cerned, yes, my right honourable friend the Home Secretary is the police authority and it would be for him to decide who should avail himself or herself of these facilities so far as the police authority for the Metropolitan Police is concerned.
Clause 6 agreed to.
Remaining clauses agreed to.
House resumed: Bill reported without amendment: Report received.
Lord BELSTEAD: My Lords, I beg to move that this Bill be now read a third time.
Moved, That the Bill he now read 3a.—(Lord Belstead.)
Lord ELWYN-JONES: My Lords, I was wondering whether the noble Lord, Lord Belstead, was going to intervene at this point. It is true that no amendments that were moved by those of us on this side of the House were successful, but if I may say so the Government have given important assurances on a number of matters of importance and significance. The major improvements by way of amendments were achieved by my noble friends in another place in regard to the reduction of the period to one month and the duration for one year. But I should like to place on record the fact that we have been given these assurances and we shall watch future developments with interest, hope and expectation. I should like again to repeat what I ventured to say at the beginning of our discussions on this matter; namely, the hope that even at this hour there will be movement towards settlement of this unhappy dispute.
The LORD CHANCELLOR: My Lords, I should like to thank the noble and learned Lord, Lord Elwyn-Jones, for what he has said. I certainly echo his hopes, although I do not know with what degree of optimism. I should like especially to thank noble Lords who have been organising the opposition from the Labour and Liberal Benches for their co-operation and understanding in this matter. They have been extremely courteous and very helpful.
On Question, Bill read 3a, and passed.

TENANTS' RIGHTS, ETC. (SCOTLAND) AMENDMENT BILL [H.L.]
6.43 p.m.
The MINISTER of STATE, SCOTTISH OFFICE (The Earl of Mansfield): My Lords, I beg to move that the Report be now received.
Moved, That the Report be now received.—(The Earl of Mansfield.)
The MINISTER of STATE, MINISTRY of AGRICULTURE, FISHERIES and FOOD (Earl Ferrers): My Lords, before the House begins the Report stage of the Bill, it is I think correct that, on behalf of the Leader of the House, I should tell the House that I have been advised that Amendment No. 1 in the name of the noble Viscount, Lord Thurso, and others, is irrelevant to the subject-matter of the Bill.
The purpose of this Bill, which is described in the Long Title, is to bring the law in Scotland into line with that in England so far as dwelling-houses for elderley persons are concerned. Amendment No. 1 in the name of the noble Viscount, Lord Thurso, proposes to extend the Bill's provisions to dwelling-houses which are suitable for occupation by physically disabled persons. I am advised that such an amendment is irrelevant to the very limited subject matter of the Bill.
I must remind the House that the Companion to Standing Orders states, on page 114, that amendments must be relevant to the subject matter of the Bill, and I hope that this advice will be seriously considered by the noble Viscount before he moves his amendment.
I would emphasise, lest your Lordships might conceivably think otherwise, that I make this statement in the nature of and on behalf of the Leader of the House rather than as a member of the Government. I must emphasise that this is a matter for the House, but I thought it right that the House should be aware of the advice which I have received.
The DEPUTY SPEAKER (The Earl of Listowel): My Lords, before I call Amendment No. 1, I should point out to the

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House that if this amendment is agreed to, I cannot call Amendments Nos. 2, 3, 4 or 5.
Clause 1 [Secretary of State's power to authorise refusal to sell certain dwelling-houses provided for elderly persons]:
Viscount THURSO Viscount THURSO had given notice of his intention to move Amendment No. 1:
Page 1, line 11, leave out from ("to") to end of line 16 and insert—

("(a) a dwelling-house whose features are Substantially different from those of ordinary dwelling-houses and which are designed to make it suitable for occupation by physically disabled persons:

(b) a dwelling-house which is one of a group of dwelling-houses which it is the practice of the landlord to let for occupation by persons of pensionable age and a social service or special facilities are provided in close proximity to the group of dwelling-houses for the only or main purpose of assisting those persons;

(c) the dwelling-house is designed or specially adapted for occupation by persons of pensionable age and it is the practice of the landlord to let it only for occupation by such persons.").

The noble Viscount said: My Lords, I realise that there is a heavy task imposed upon me to justify the introduction in your Lordships' House of Amendment No. 1 which I propose. I am grateful to the noble Earl, Lord Ferrers, for pointing out to me the difficulty which I face in seeking to do so. I am, however, encouraged to do so because I believe that it can be shown that it is not immaterial or irrelevant, because I think that there are precedents for the alteration of Long Titles to Bills introduced in your Lordships' House; and also because the intention of the Government would not in any way be harmed by an alteration to this particular Long Title.
As your Lordships can see, it becomes increasingly difficult for me to argue the relevance of what I have to say without saying it. It is extremely difficult to debate whether what I wish to say is relevant without letting your Lordships have an insight into my mind. Therefore, I think that all that I can do is to ask your Lordships whether you will allow me to proceed to argue the case both of relevance and of the subject matter being material to the purpose of the Bill and, at the same time, to develop the argument which I would have developed in support of the amend-
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ment. At the end of that, I submit that the only real test is to ask your Lordships whether you will accept what I have to say and allow me to develop this argument and whether your Lordships will agree, when you have heard what I have to say, that indeed the amendment is material to the Bill.
Lord BLAKE: My Lords, I wonder whether I may say something on this matter? I rather hope that the noble Viscount will not proceed on these lines. The point is that we have had an opinion expressed on behalf of the Leader of the House that this amendment is not relevant to the Title of the Bill. I shall not try to argue about that at this moment, but it seems to me that, having an opinion of that sort by the Leader of the House expressed by my noble friend Lord Ferrier, it would be wrong for us to proceed in this way, and it would possibly be treating the House with not quite the courtesy that it deserves if we proceed in this way. A clear opinion has been expressed. After all, in this House we do not have the advantage, or disadvantage, whichever it may be, of a Speaker; and so we must to some extent be guided by opinions of this sort. Therefore, in these circumstances, I would hope that the noble Viscount would not feel that he ought to proceed.
Lord FERRIER: My Lords, as one who is rather sympathetic to the amendment which is proposed to be moved by the noble Viscount, would it be in order, as this is a House of Lords Bill and as it originates in this House, for me to suggest that the Title might be varied in order to overcome the objection which the noble Lord the acting Leader has voiced?
Baroness ELLIOT of HARWOOD: My Lords, I remember that when I was chairman of a housing committee in Scotland very often we used to alter houses for really handicapped people by installing ramps, larger doors, different lavatories and so on, perfectly easily under the existing legislation. There was no difficulty at all. It was simply proposed to the committee and the committee agreed to it or not as the case might be. It is totally unnecessary to have any more legislation concerning houses for handicapped, old people or anyone else, because

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such houses can be altered under existing legislation. If I am wrong, perhaps my noble friend will tell me. However, I was able to do all that I wanted to do for handicapped people, with no difficulty at all.
Baroness MASHAM of ILTON: My Lords, I should like to ask a question. Following on from that, why was this put in the English Act? The worry is that it is in the English Act and not in the Scottish Bill. What my noble kinsman Viscount Thurso wants is the same as is in the English Act.
Earl FERRERS: My Lords, perhaps I could just make one or two remarks on that point. I think that my noble friend Lady Elliot of Harwood is under a misapprehension as regards one matter. It is not whether it is possible to do what the noble Viscount wishes to do in his amendment under existing legislation. What is under discussion is whether, in fact, the amendment should be moved at all, irrespective of what it contains. The noble Baroness, Lady Masham of Ilton, said that the English Act contains certain provisions which the noble Viscount, Lord Thurso, wishes to see contained in Scottish measures. That may be, but we are in a difficulty here and I think that the noble Viscount is treading on somewhat dangerous ground, because in another place they have a Speaker, and the Speaker decides what is within the scope of a Bill. If an amendment is tabled which is not within the scope of the Bill, the Speaker disallows it. In your Lordships' House we have no Speaker; we have no scope; but we do have relevance, and it is determined what is relevant and what is not. If it is determined that a certain amendment is outside the relevance of the Bill, I suggest to the noble Viscount that he is on very dangerous ground if, notwithstanding that, he then says that he will press his amendment.
Of course, your Lordships are entirely entitled to run your Lordships' House as your Lordships think fit. The noble Viscount is quite right: there have been precedents for altering the Long Title of a Bill, but those have been in different circumstances. There have been precedents where amendments which were tabled and which it was decided were outside the relevance of the Bill, have not
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been pressed. I would cite the Life Peerages Bill 1957, the Administration of Justice Bill 1967, the Criminal Justice Bill 1972 and the Rent (Agriculture) Bill 1976. In all those cases amendments were tabled which were then found to be outside the relevance of the Bill and in each of those cases the amendments were, therefore, not moved.
I would ask the noble Viscount to consider the matter very seriously, not because of the content of the amendment but because of the respect which the noble Viscount has for the proceedings under which your Lordships' House operates. I fear that if the noble Viscount, feeling as strongly as he does, nevertheless were to move these amendments, others in due course might move any other amendments to any other Bills, irrespective of what the relevance might be. I think that the noble Viscount would be touching on dangerous ice which, in the long term, I think he would prefer not to do but to retain the respect of the House as a whole.
Lord FERRIER: My Lords, with due respect to the noble Earl, he has not answered my question whether it is open to us to comply with the ruling of the Leader of the House by varying the Title so that it does admit this.
Earl FERRERS: My Lords, the alteration of the Long Title of the Bill is dependent upon the incorporation of the amendment. All I would say to my noble friend Lord Ferrier is that in the end the House is responsible for its own operations and if your Lordships choose to disregard what is relevant, that is a matter for your Lordships. All I am saying—and I am giving this to your Lordships as impartial advice—is that we are on very dangerous ground as a House if we start accepting or considering amendments which are irrelevant to whatever Bill may be before your Lordships.
Lord ROSS of MARNOCK: My Lords, I think that we are in this difficulty because of the words that were used in another place by the Leader of that House when he said, at column 528 of the Official Report for 5th August:
"On the Housing Bill it is vital that Scotland and England should be treated equally in these matters".
When the noble Viscount, Lord Thurso, saw me I think I reeled out to him exactly

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what was the practice in the other place which the Acting—may I call him?— Leader of the House has laid down to him. I am completely new to this House and to its procedures. I should not like to do anything wrong or suggest that other people should do so.
But one thing has struck me. During the Committee stage we came to the point where it was put to the Committee, "That this be the Title to the Bill". At that stage were we in a position to alter it, or were we not? Even in the short time that I have been a Member of this House I can remember a Bill in which the Title has been altered. Is that the prerogative only of the Government? If the Government were to rise and say that they accept these amendments, would they be in order? This is a Government point and not a point for the Leader of the House. Would the Government thereby put us in order and say that they, and they alone, can lead the House in respect of changing the Long Title?
Lord FERRIER: My Lords, is my suggestion not valid, that we might make the variation in the Long Title which the noble Viscount suggests?
Lord MACKIE of BENSHIE: My Lords, perhaps I could add to the argument. I think that this is very relevant to the intentions of the Government as expressed in another place, and to the understanding put upon them by many members of this House, who are extremely concerned. In fact, the relevant section in the English Act, with which it was intended to bring the Scottish Bill into line, mentions "disabled people" as well. This is a matter which concerns many people in the House. It appears to me that if there is a precedent for altering the Title to bring it into line with the wishes of the House, it might well be that if it is the wish of the House, my noble friend Lord Thurso might proceed with his amendment.
Viscount THURSO: My Lords, at this stage I am obviously in the hands of your Lordships' House. I can only point out that although we do not have a Speaker and although we do not have the same sort of clear-cut regulation that applies in another place, we do have the supremacy of the House as a whole. Therefore, if
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your Lordships choose to do something, your Lordships can say "This shall be done". I do not wish to transgress, to tread upon difficult ground, or to do anything which your Lordships would find distasteful or improper. But in quoting precedents, the noble Earl, Lord Ferrers, left out the Protection of Aircraft Bill, which was amended by the Government to cover airports as well as aircraft, and this was justified on the ground that the purpose of the Bill was to protect aircraft, which could not be done without provisions affecting airports.
In moving this amendment, I would hope to demonstrate to your Lordships that its purpose is to help elderly people—in other words, people of pensionable age—but unfortunately in doing so it would place at risk certain people who would be covered by the existing wording.
The purpose of the Bill was surely described in another place by the Leader of the House of Commons when he said, on 5th August, at column 527:
"On the Housing Bill it is vital that Scotland and England should be treated equally in these matters".
And, again, at column 531 he said:
"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. If there is agreement in principle the technicalities question is secondary".
If we were to assume that it is the intention and wish of the Government to deal with elderly people on an equal basis, in the way they have already been dealt with in the Housing Act 1980, then I feel it is up to your Lordships to consider the possibility of this amendment. I really ask your Lordships to give me leave to debate this amendment, and if it finds favour with you, to move it in your Lordships' House.
7.2 p.m.
Earl FERRERS: My Lords, I wonder whether I might be permitted to make one further observation over this, with the leave of the House. I quite understand what the noble Viscount wishes to do, and I wish him and the House to understand that anything I may say is not said as a member of the Government at all but simply to try to guide your Lordships to do the right thing. The noble Viscount said that if your Lordships wanted to do something then your Lordships can. Of

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course, this is perfectly true because our rules of order are very lax, but it is only because we stick corporately to the rules of order that business has any chance of succeeding.
The noble Viscount said, "Well, it was the intention or the wish of the Government to cover handicapped people as well as elderly people". That may be so or it may not be so; the point is what the Bill says. The Bill says it refers to elderly persons. The advice I have received is that such an amendment as this is outside the relevance of the Bill as it is drawn whether it is the way the Government intended it or not. I think it was the noble Lord, Lord Ross of Marnock, who said, "Can the Government alter it?" The answer, so far as I understand it to be, is no, not if it is outside the relevance of the Bill. That is the advice which I would suggest we ought to be guided by. But if your Lordships say no, on this occasion we do not want to take the advice; we want, as it were, to do our own thing, then of course your Lordships are entitled to do it. But I think that the precedent is a bad one.
Viscount THURSO: My Lords, it seems that the real problem which exercises the noble Earl, Lord Ferrers, in his capacity as Leader of the House at this moment is the question of dealing with disabled persons in this particular amendment. If, however, I were to move a manuscript amendment to this amendment leaving out paragraph (a), would he not agree that it would be perfectly competent to move (b) and (c)?
Earl FERRERS: My Lords, I would have to consider that. I was not addressing myself to the type of amendment but merely to the fact of what the amendment said. If the noble Viscount wishes to change an amendment, that is up to him. I would only refer to one other thing which I meant to refer to before, and that is that a certain noble Lord asked, was it not possible to alter the Long Title of the Bill? The answer is that it is possible to alter the Long Title of a Bill provided that the amendments are relevant to the subject matter of the Bill. In some cases in the past Long Titles have been altered, but only when the amendments were relevant to the subject matter of the Bill.
Lord ELWYN-JONES: My Lords, the noble Earl the Deputy Leader of the House has indicated that he has taken advice on this matter to see whether what is proposed would mean compliance with the rules of the House and the rules of relevance. I think the House would indeed be moving on a somewhat slippery slope if we decided now that such advice and such guidance from the Leader of the House is a matter that we can ignore without peril to the future conduct of the business of the House. I say that with every sympathy for the noble Viscount.
It may well be that if he had taken this initiative at an earlier stage in the proceedings of this matter the situation would be different. But I suggest that as a matter of the procedure of the House we would be better advised to accept the guidance we have received from the acting Leader of the House, not as a distinguished Minister in the Government but as Leader in the House. I hope that that course may be followed.
Lord FERRIER: My Lords, it is only in order to agree with the noble and learned Lord that I made the suggestion that I feel we must be guided by the Leader of the House unless we can alter the amendment.
Viscount THURSO: My Lords, I do wish to be guided by the Leader of the House and I asked him for guidance. I asked him whether it would be competent for me to move a manuscript amendment leaving out paragraph (a) from my amendment, which is:
"a dwelling-house whose features are substantially different from those of ordinary dwelling-houses and which are designed to make it suitable for occupation by physically disabled persons",
and keeping in the two paragraphs which relate to elderly persons. If I do that, it would seem to me that this then is relevant and competent and I could speak to the whole matter, and in parenthesis explain to your Lordships why I am sorry that I would have had to leave out paragraph (a).
Earl FERRERS: My Lords, it is a curious procedure to adopt when we come to Amendment No. 1, to move a manuscript amendment to No. 1 which has not yet been written out so that noble Lords

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know what they are in fact doing. It would be a curious procedure. It may be that if the noble Viscount were to leave out paragraph (a), as I understand it the other provisions might be within the relevance of the Bill. That is a very cursory and immediate answer. But again with respect to the noble Viscount, the point of manuscript amendments, if I am correct, is that they should be written down so that your Lordships should know exactly what your Lordships are discussing. It might be slightly premature to alter it like this, but if it were done I think that the remainder probably would be within the relevance of the Bill.
Viscount THURSO: My Lords, I have had a little personal experience of this manoeuvre because I once had to do it before when I was introducing a Bill in your Lordships' House. I have therefore amended the amendment, so that it can be laid upon the table in your Lordships' House, simply by crossing out (a) and writing "a" instead of "b" and "b" instead of "c". I am perfectly prepared to lay this amendment on your Lordships' Table as a manuscript amendment, if that is the pleasure of your Lordships' House.
Earl FERRERS: My Lords, as the noble Viscount is such a professional at getting round difficult situations, and indeed in putting others in difficult situations, I might respectfully suggest to him that on the next occasion he might think a little earlier so that we could all be put into less of a confusion. As I understand it, if the noble Viscount were to be kind enough to lay that piece of paper on the Table, your Lordships could probably discuss the amendment in its amended form. But I respectfully suggest to the noble Viscount that it would be helpful if this could be done a little more expeditiously and a little more in advance.
Viscount THURSO: My Lords, you have indeed been kind to me, and I am very sensible of it, but I plead that in this particular instance we have not had a great deal of time for working things out. If I have been a bit slow in coming forward with things, I plead that we have been under some pressure in this particular matter.
Earl FERRERS: My Lords, I believe we are still debating the Question, That the Report be now received, curious though that may seem.
On Question, Motion agreed to: Report received.
7.10 p.m.
Viscount THURSO Viscount THURSO moved the following manuscript amendment:
Page 1, line 11, leave out from ("to") to end of line 16 and insert—

(a) a dwelling-house which is one of a group of dwelling-houses which it is the practice of the landlord to let for occupation by persons of pensionable age and a social service or special facilities are provided in close proximity to the group of dwelling-houses for the only or main purpose of assisting those persons;

(b) the dwelling-house is designed or specially adapted for occupation by persons of pensionable age and it is the practice of the landlord to let it only for occupation by such persons.").

The noble Viscount said: My Lords, in moving this amendment, I wish to make it quite clear that we on these Benches are not in any way against the principle of the sale of council houses to sitting tenants. Far from it. We support the principle and we therefore support much of what is in the Tenants' Rights, Etc. (Scotland) Act, but we recognise that legislation cannot be considered solely in terms of pure black and white; there are good and bad things to do. What is in general desirable has often to be modified by what is necessary or desirable in certain particular or exceptional instances.
That is why we were so pleased to learn that Her Majesty's Government recognised that the Tenants' Rights, Etc. (Scotland) Act needed to be modified to take account of the secial needs of the elderly and of the duties of local authorities towards them, and that this Bill, the Tenants' Rights, Etc. (Scotland) Amendment Bill, was to be brought before your Lordships in an endeavour to treat England and Scotland equally in these matters. The problem with which the Bill seeks to deal is simply that we have already laid it on the shoulders of local authorities to provide for the special housing needs of the elderly. Therefore, to allow houses which they have specially adapted, built or sited so as to be able to discharge those duties to be arbitrarily or compulsorily taken out of their stock

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by purchase would not merely impair their ability to do so but would also be a foolish waste of public money. We were consequently bitterly dsappointed, when we read the Bill, to see that it clearly failed to achieve the objective laid down by Government spokesmen in another place.
I give credit to the noble Earl, Lord Mansfield, for meaning well, but I must point out to him that his well-meant efforts to include the elderly and disabled—and I read the Bill as including the disabled—in a single sentence so severely restrict the scope of the Bill as to make it fall completely short of its objective and of the assurances and undertakings given by the Government in another place. In the Housing Act 1980, which applies to England, three categories of house are excepted from the right to buy: first, houses adapted or designed for the physically disabled; secondly, groups of dwelling-houses designed for the elderly and provided with special facilities—so-called sheltered houses; and, thirdly, houses designed simply for occupation by the elderly; in other words, the ordinary one-or two-apartment old person's house. The house described in this Bill—
"a dwelling-house which has facilities which are substantially different from those of an ordinary dwelling-house and which has been designed or adapted for occupation by an elderly person whose special needs require accommodation of the kind provided"
—is not exactly any of those described in the Housing Act 1980. It is a shadowy amalgam of all three and, in so being, succeeds in being none of them. It is not a house for a physically disabled person; it is not a group of sheltered houses; it is not an ordinary old person's house. By being a little bit of each it becomes not entirely any one of them.
As I said, I gave the noble Earl, the Minister of State, the benefit of the doubt and began to consider whether I could not help him to improve the Bill so as to achieve what I understood to be the Government's intention. Frankly, however hard I wrestled with forms of words, I found it impossible to write into one sentence a clear and all-embracing description of the categories of house which it was intended to except from the right to buy. This of course is because of the differences which exist between the English
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and Scottish Acts. The only clear, clean and logical way I could find to amend the Bill was, it seemed to me, to use the wording employed in the Housing Act 1980. That was the only precise way by which the Government's promise to treat England and Scotland equally in these matters could with certainty be achieved, and that is how I set about drafting my amendment.
I know the Minister of State will criticise my amendment on many grounds—the original amendment, the forerunner to this manuscript amendment, has already been criticised on the grounds of being irrelevant—and I have no doubt that the noble Earl will tell me that, so far as physically disabled persons are concerned, I should content myself with the preemption clauses which are in the Scottish Act. However, we are not debating that point now. My information is that the organisations interested in the welfare of the disabled and of people who require shelter, in particular Shelter Scotland, would be behind the intention of the amendment.
The refusal of the right to buy provision is, I would say, not more drastic than the pre-emption provision; it is more honest, more clearly understood and more certain in effect. Local authorities are not forced to refuse to sell if their stocks of specially adapted houses are adequate, any more than they are forced to include a preemption clause in a missive of sale. But the categories we are now considering—genuine one- and two-apartment old people's houses, sited where the noble Baroness, Lady Elliot, would have put them when she was on a local authority, and built, as they would have been built, by local authorities all over Scotland—will be saved from going out of the housing stock and saved from the danger that, if they did and they were offered for preemption at a time of financial stringency, it would not be the misfortune of the local authority to be able to find funds to buy them back again. Seriously and sincerely, I recommend the amendment to your Lordships. It should commend itself to fair-minded persons of all parties and to those with no particular party affiliations, and therefore I appeal to noble Lords in all parts of the House for their support in the amendment. I beg to move.
7.20 p.m.
Lord KILMARNOCK: My Lords, I do not want to detain the House by repeating arguments advanced at the Committee stage, but I have been through the recent history of this little Bill with considerable care, and it seems to me that on any reasonable interpretation of what was said by the Secretary of State for the Environment in another place, certainly the spirit of the intention that was declared there was to put Scotland on a par with England and Wales in this matter. I have also scrutinised very carefully the speech made in Committee by the noble Lord, Lord Gray, whom I am sure all noble Lords in this House respect enormously for his textual accuracy, but it still did not seem to me that he had really made his point.
From my own reading of all these matters I am convinced that there is still one very important element which was in the English Act but which has not appeared in the formula put before us by the Government in this Bill; namely, the exclusion of those houses which it was the practice of the landlord to let for elderly people. I have said in Committee, and I shall say again very briefly—or perhaps I should turn to the noble Baroness, Lady Birk, who said it even better in Committee—that the Bill as proposed at the moment removes any hope for the elderly people unless they are disabled as well and have very special needs. As we all know, not all elderly people are disabled, and not all the houses occupied or designed for elderly people are substantially different from those in which the rest of the community live. They all have doors, windows, et cetera. As I think we have said before, one of the most important considerations for an old person's home is its location in relation to the various amenities that the old person will need; that is to say, shops, transport, et cetera.
By the proposed new Section 3A as it stands in this Bill at the moment those houses which are conveniently sited for elderly people will simply be excluded, and to my way of thinking that is the most important reason for supporting this amendment moved by the noble Viscount, Lord Thurso.
Lord MACKIE of BENSHIE: My Lords, I know that the Minister the noble
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Earl will say that he is tired of repeating the arguments, and perhaps I am, too, but I think that they bear repeating. The fact is that everyone admits that the intention expressed and the promises given in the other place were to the effect that Scotland should be brought into line with England, and I make no apology for once more repeating that this Bill simply does not do that. All it does is make the clause referring to elderly people infinitely stiffer than anything that is contained in the English Housing Act. In fact my noble friend, although apparently mistaken, had some excuse for bringing disabled persons into this Bill, because in fact the wording used in the Scottish Bill to amend the Act is that which is used partly in the English Act in relation to disabled people. A promise was given to bring the Scottish legislation into line with the English Act, which says quite clearly that a disabled person's house, on which money has been spent to make it substantially different from ordinary dwelling-houses and to make it suitable for occupation by physically disabled people, will be exempted from the right to purchase. The Act goes on to refer to circumstances where
"the dwelling-house is designed or specially adapted for occupation by persons of pensionable age; and … it is the practice of the landlord …".
The wording of the Bill that we are now discussing is:
"The section applies to a dwelling-house which has facilities which are substantially different from those of an ordinary dwelling-house and which has been designed or adapted for occupation by an elderly person whose special needs "—
I stress that reference to "special needs"—
"require accommodation of the kind provided by the dwelling-house".
Quite frankly, this is not a creditable manoeuvre, and I think that it arises from a distrust of labour councils in Scotland, which may be quite rightly felt—I do not know. But certainly this wording does not bring the Bill into line with the English Act, and in my view it places at great risk a large number of people in Scotland who expect retirement houses. Quite frankly, I think it is scandalous that the Government are persisting with what I regard as a perversion of their promise given in the other place.
Lord ROSS of MARNOCK: My Lords, I sympathise very much with the noble

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Viscount who has tried to secure for the disabled in Scotland the same treatment as is contained in statute for England and Wales. I know that if we cannot do it here, he will continue his efforts elsewhere. But generously he ended the argument with a manuscript amendment. What does that manuscript amendment leave us with? It leaves us with words that are exactly the same as those in Schedule 1, Part I of the Housing Act applicable to England and Wales, in respect of the group of dwelling-houses which are the sheltered houses. It could be argued by the Minister of State that these houses are already covered in the Scottish Bill. I think that I would agree with him there.
In what is now paragraph (b) of the amendment there is repeated word for word the reference to houses to which in England exception is to be given. One should think that if that satisfied all the legal minds of the Government, it was right. The noble Lord, Lord Bellwin, is a very discriminating man who knows something about local government, and if it satisfied him, one would think that it might be regarded as applicable to, and acceptable to, people in Scotland as well. There is nothing technical about any of the phrases—nothing at all.
Of course, the Minister of State is an English lawyer. I do not know whether or not he is speaking to the noble Lord, Lord Bellwin—because he described the English words as "baby language". Well if the paragraph is simple, if it is understood by even children, it is something new in legislation, and it is to be commended, because most legislation is written in such words that no one can understand it. But the noble Lord, Lord Bellwin, had no difficulty in translating it when he came to recommend it—and remember, my Lords, it was drawn up by the Government. That was when the amendment came back for consideration by the Lords. The noble Lord, Lord Bellwin, said, at column 1601:
"The paragraph will apply to any dwelling-house which is designed or specially adapted for occupation by persons of pensionable age and which it is the practice of the landlord to let only for occupation by such persons".
That is exactly what the noble Viscount has put down in his amendment; and we must compare that with the words that
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he seeks to leave out. There we have wall after wall erected to restrict the number of old people's houses that will be exempt. First, the facilities have to be "substantially different". There is none of that in the English clause. They have to be "designed or adapted"—yes, that is there; "special needs"—no, that is not there.
The noble Earl the Minister left out what the noble Lord, Lord Bellwin, thought was important in order to prevent the noble Minister's coach and horses driving through the gateway. The noble Lord, Lord Bellwin, said, at column 1600:
"There is no mystery about the reason for introducing the requirement for a determination before a dwelling is to be treated as exempt. It is intended to remove the scope for reluctant local authorities".
So all the features that the Government say they desire are contained in the amendment and in what we leave in the clause.
There is no doubt about the importance of this with an ageing population. That ageing population (forgetting the present unemployment affecting young people), not having the benefits that the younger people have had in the Scotland of today, is very much in need of assured housing, and the only place it can get it is from the local authority, whether it is in the town or whether it is in the countryside. I know many farmers, I know many landowners, and those who have served on county councils in Scotland will know that they can count on local authorities to be helpful when someone has got to get out of a tied house. But that will change if the stock of houses is not there—if they are bought and then they are sold maybe to someone from outside. The protections we have in subsection (4) for the countryside just do not match up to the demands either of Members of this place or of local authorities. I quoted the number of units—that is, married couples or the elderly, maybe widows or spinsters, widowers or bachelors—and the number is 632,000 units in Scotland. The Minister has said that his provision here will give us another 6,000 houses. My Lords, 6,000 houses! It does not begin to look at the need in even one city in Scotland.
Now I do not know what has got into the Scottish Office. Are they frightened?
The Earl of MANSFIELD: I know, my Lords.
Lord ROSS of MARNOCK: Now we know: it is the noble Earl who has got in, with his coach and horses and with his gateways which must be barred against those coaches and those horses driven by mad district councillors! And then he forgot to clear some of the other little openings, he was so obsessed with his coach and horses; but we will come to that later on. But surely to goodness even he appreciates that what is being left to local authorities does not meet the need. We are told that the English amendment gave to the English authorities an extra 221,000 houses, and yet we Scots have got to be satisfied with 6,000. If we go away from definitions under the same categories of housing, there is no justice in that. Scotland is not being treated along the same lines. I see the noble Lord, Lord Strathclyde, there. He will remember that everything used to be quite clear in relation to Scotland and England. We got eleven-eightieths. If by any chance they built an extra 80,000 houses, there appeared an extra 11,000 in Scotland, and no reason was given. It was just the automatic working of the Goschen formula.
Lord STRATHCLYDE: My Lords, as the noble Lord has mentioned me, perhaps I may say to him that I am distressed to listen to his argument, which seems to me to prove conclusively that you cannot trust the local authorities in Scotland to do the right thing by the citizens they look after.
Lord ROSS of MARNOCK: I am afraid that is a bit beside the point on this particular amendment, my Lords, for the simple reason that although we are dealing here with a clause we are amending only a part of it, and the important part, as Lord Bellwin said in relation to the English Bill, is that the determination by the Secretary of State remains. But on the simple point, 221,000 for England and Wales, Scotland, 6,000, it does not meet the need. In population terms our need is even greater. In terms of the countryside, our need is even greater.
I do not think the Minister of State should be very proud of what he has done in respect of this Bill in coming
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along and saying, "The category is the same; it just happens that we are going to get less than our share". What really matters is the stock of houses available to the local authorities for letting to old people, be it in the town or in the countryside. That is why my amendments later on are slightly different, because if everything he says is right, it is still wrong and still not doing justice to Scotland. But I am prepared to trust to the English words, and I would be prepared to vote for this particular amendment and commend it to the House.
7.35 p.m.
The Earl of MANSFIELD: My Lords, there are, as I see it, two parts to this debate. There is, first, the desire of some noble Lords, at any rate—and I say that knowing that they have the sincerest and most honourable motives—to improve the Bill, as they see it, because they think that it will be fairer, more just and, as it were, do a better job for Scottish housing. I respect those motives. There is also the argument as to whether the Bill as it stands gives effect to the undertaking which was given by Mr. Heseltine in the House of Commons that certain things would be done—and I use those words advisedly.
Now the noble Lord, Lord Mackie, in terms which I have never had addressed to me before on a personal basis, accuses me, in effect, of being scandalous, perverted and discreditable, which I suppose I could take exception to if I thought that he was being really serious about it; but I do not. What I am serious about is that if we are going to have regard to this undertaking we cannot just wave a copy of Hansard about and say that undertakings were given, vaguely, to bring Scotland into line with England, because they were not. What was done was done absolutely specifically, and this legislation was subsequently drafted in compliance with that undertaking and consistent with the drafting approach which has been adopted all along in relation to the Tenants' Rights, Etc. (Scotland) Act, and having regard to the different situation, different categories of housing stock and different law on real property in Scotland.
My Lords, may I deal first of all with the desire of the noble Viscount to improve the Bill by his amendment? We have

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already been over this course on a number of occasions on similar and almost identical amendments, and I do not think that I can really contribute very much to that, although I shall have to say a little. But if I may come back to the assurance in col. 562 of the Official Report of Wednesday, 6th August, Mr. Hattersley said:
"It would help if the Secretary of State were to state clearly and categorically that the Government will no longer pursue the sale of those properties that are specifically designed for the use of, and occupation by, the elderly".
That, I think, is a straight question in plain English. It is not a question which is in any way blurred round the edges. Lower down in the same column my right honourable friend Mr. Heseltine said:
"My right honourable 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, at the earliest convenient moment".
Lord ROSS of MARNOCK: My Lords, will the noble Earl allow me to intervene? Would it not be helpful if we knew what was the Statement that he announced? It was that the Government had decided to widen the exclusion so that genuine elderly persons' accommodation is excluded.
The Earl of MANSFIELD: My Lords, genuine elderly persons' accommodation is excluded—not little houses. I say that the undertaking goes back to Schedule I to the Housing Act 1980 and, without doubt, goes back to paragraph 5; and that must be quite clear. I say that it was never an undertaking to bring the two Acts into line in every respect concerning housing for the elderly. Paragraph 4 of that Schedule, for instance, which is really part of this amendment, is closely tied with the housing which is described in Section 1(1l)(c) in contemplating in the vast majority of cases that it will be the equivalent to our sheltered housing.
Lord MACKIE of BENSHIE: My Lords, I wish to remind the noble Earl, when he talks about genuine elderly persons, that he accepted an amendment from the noble Lord, Lord Ross of Marnock, saying that that meant persons of pensionable age.
The Earl of MANSFIELD: My Lords, I try to help. I do not know why; but
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I try. What I am now talking about is the houses. I say that as far as the generality is concerned it is really unreasonable to change Scottish provisions in this House. We have matters which have been the subject of representations in Scotland. They have been open to comment from the Scottish local authorities and others who take an interest in the drafting of legislation. The time when we should argue over matters of drafting—which is what this is—is long past. We did so at considerable length in the House on a number of occasions over the matter of sheltered housing and decided that we should adhere to the words as in Section 1(11)(c).
I appreciate that, as the noble Lord, Lord Kilmarnock, said, our definition leaves out paragraph 5(b) in Schedule 1:
"that it is the practice of the landlord to let it only for occupation by such persons".
I say to him that is more restrictive than what we have in this Bill. No such provision is there. Therefore providing the house comes within the definition it does not have to be the practice of the landlord to let it only for occupation in that manner. I anticipate that the noble Lord, Lord Ross, has tabled a series of amendments which I can comment on perhaps in due course; but I am criticised, (and have been criticised quite a lot), in effect for being over-suspicious as to the intentions of the Scottish local authorities, or some of them. I shall have something to say about that later.
On the arithmetic, I think it was the noble Baroness, Lady Birk, who, on the last occasion a few days ago when we were discussing this, said that the figures did not add up. I said that they were not designed to add up. In fact, what I said was right. The Bill, as drafted, and the comparable provision in the English Housing Act, more or less double the number of houses which will be excluded from the right to buy. So far as the English are concerned, there has been a recent survey by the Oxford Polytechnic which found that there were 237,000 sheltered houses and a further 228,000 specially designed for there elderly but without a warden or an alarm-call system. In Scotland there are about 6,000 sheltered houses which were already excluded from the right to buy. This Bill would exclude a further 6,000. So, in both cases, the number of houses has doubled.

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My Lords, I want to come back to the question of the attitude of the local authorities. I have criticised the wording of the Housing Act from time to time, and I do not do so lightly; but it is absolutely essential, in the view of the Government, that everybody knows where he is with this legislation, that the definitions are drawn as tightly as possible to avoid misunderstanding and, above all, not to allow recalcitrant local authorities to try to evade their obligations. The noble Lord, Lord Ross, thinks, I believe, that I am almost paranoic about this—
Lord ROSS of MARNOCK: My Lords, it is that coach and horses of his.
The Earl of MANSFIELD: My Lords, the question arises as to what the attitude of the councils is going to be. Some time ago, when he was even newer to this House than he is now, I advised the noble Lord, Lord Ross, to read the Dundee Courier to improve himself. As is my wont, I was doing that yesterday. It said on page 11:
"A controversial measure designed to prevent council house tenants buying their homes under the Government's legislation could be adopted by Dundee District Council's controlling Labour group".
It goes on to talk about a scheme which has been hatched in Derbyshire—and I will not weary your Lordships with this—and says:
"Mr. Charles Bowman, leader of the Labour administration, said that they would be considering a scheme as part of their continuing struggle against the sale of council houses. 'There are a number of these that we have heard of and are looking at', said Mr. Bowman. 'We have to explore every avenue to prevent the sale of council houses'.".
He went on to say:
"'Every suggested scheme that seemed feasible will be put to the council's legal department for a verdict on its validity. Labour groups throughout the country are trying to find ways and means to prevent houses being sold. There are always new things coming up'.".
On the last occasion that he addressed your Lordships the noble Lord, Lord Ross, said that he was not encouraging local authorities to defy the law—I am sure he is not—and that once this Bill becomes an Act it would become a matter as between the council and individual citizen.
That is the point. If we adopt definitions and a style of drafting which I
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have often criticised at considerable length to your Lordships, we are in fact giving an open invitation to district councils like Dundee (and this I am sure the noble Lord, Lord Ross, deplores as much as I do) to try every manoeuvre they can to "do down" the individual citizen of his rights. That is why I am afraid I have remained adamant.
What I say is that the three categories of housing that we have in Scotland cater, as it were, both for the rights of the citizens which were set out in the original Tenants' Rights (Scotland) Act and for the safeguards (if that is the right word) for the exemptions from the right to buy which Parliament wishes to include in them. It is for those reasons that, although I appreciate the sincerity of the noble Viscount, I cannot advise your Lordships to accept these amendments. They would make a nonsense of the Bill. Although I respect the intention of the noble Viscount, they would do the opposite of what he is trying to achieve.
7.50 p.m.
Lord GALPERN: My Lords, having listened carefully to the noble Earl's statement of his case, I am amazed to think that he believes—and he quotes the situation in Dundee, I presume from the Sunday Post, which he told us on the last occasion was his favourite Sunday paper—that 6,000 houses are presently available from the shelter scheme under the Act; and that, by means of what they have now done to put us on all fours with the English position, another 6,000 will become available. He tells us that if he were to concede the amendment, it would be an encouragement to Dundee District Council to go ahead and drive the proverbial coach and horses through the whole Bill.
Does he realise that incorporated in the amendment is the fact that the tenant of a house has to be of pensionable age? It does not apply to people who are not of pensionable age. It would have been interesting if we could have learned how this yardstick of the additional 6,000 houses would be measured. We know what sheltered houses are, but how can he tell us at this stage that another 6,000 houses will become available without having a detailed survey of the design, structure and special accommodation that has been

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provided for the elderly people? Does the noble Earl wish me to give way?
The Earl of MANSFIELD: No, I am listening with rapt attention.
Lord GALPERN: I thought the noble Earl wished to give an idea of how these additional 6,000 houses were going to be sorted out from the ordinary municipal tenanted houses. The whole question revolves round whether the Government really wish to help the category of people who are clamouring for houses. If we allow the Bill to go as it stands, without amendment, it will mean that these people will end their days in misery without ever being able to get into a house which would make their lives more comfortable in their latter days.
Viscount THURSO: My Lords, I have listened with care and attention to what the noble Earl said in defence of this Bill. In particular, I listened to what he said, quoting from Hansard of another place of 5th August at column 562. He quoted Mr. Hattersley's first question and Mr. Heseltine's answer to Mr. Hattersley's second question. Mr. Hattersley's second question was:
"Secondly, will he confirm the statement by the Leader of the House, namely, that that which applies in England should apply to Scotland? Will the right honourable gentleman confirm that it will apply to Scotland? Will he also confirm that a suitable measure will be brought forward to ensure that this substantial concession applies to Scotland as well as to England?"
Mr. Heseltine replied as quoted by the noble Earl, and Mr. Heseltine referred to what he had said higher up in the same column which was quoted by the noble Lord, Lord Ross of Marnock.
I have endeavoured with this amendment to see that this is the case. If the
will of your Lordships' House is to be endorsed and applied to Scotland as in England, then the words moved in my amendment:
"the dwelling-house is designed or specially adapted for occupation by persons of pensionable age and it is the practice of the landlord to let it only for occupation by such persons"
must be used.
If they are used, then the other parts of the Bill fall altogether and there has to be substituted for them that part of the amendment as follows:
"(b) a dwelling-house which is one of a group of dwelling-houses …"
and so on, as written on the manuscript amendment. That part which was written on the manuscript amendment is not the same as Clause 1(11)(c) of the Scottish Act because in that subsection where a dwelling-house is one of a group provided with facilities, the words are modified by:
"(including a call system and the services of a warden)".
This is very restrictive wording indeed. We cannot possibly have confidence in saving our sheltered housing by relying upon the wording in the Scottish Act. Therefore, as an ex-Caithness county councillor and an ex-Thurso town councillor—and I genuinely believe in the needs of old people and the duty of local authorities to provide on behalf of the community for the old people—I feel I must press forward with this amendment. I can see no other option to allow me to sleep tonight with a clear conscience.
7.58 p.m.
On Question, Whether the said manuscript amendment to Amendment No. 1 shall be agreed to?
Their Lordships divided: Contents, 44; Not-Contents, 62.

CONTENTS

Avebury, L.

Kilmarnock, L.

Simon, V.

Balogh, L.

Lee of Newton, L.

Stedman, B.

Banks, L.

Llewelyn-Davies of Hastoe, B.

Stewart of Alvechurch, B.

Blease, L.

Lloyd of Kilgerran, L.

Stewart of Fulham, L.

Brockway, L.

Mackie of Benshie, L.

Stone, L.

David, B. [Teller.]

McNair, L.

Strabolgi, L.

Davies of Leek, L.

Maelor, L.

Talyor of Mansfield, L.

Ferrier, L.

Morris of Kenwood, L.

Thurso, V. [Teller.]

Galpern, L.

Noel-Baker, L.

Underhill, L.

Gregson, L.

Oram, L.

Wade, L.

Hampton, L.

Peart, L.

Walston, L.

Hooson, L.

Pitt of Hampstead, L.

Whaddon, L.

Hughes, L.

Raglan, L.

White, B.

Jeger, B.

Ross of Marnock, L.

Winterbottom, L.

Killearn, L.

Seear, B.

NOT-CONTENTS

Ailesbury, M.

Elton, L.

Mansfield, E.

Airey of Abingdon, B.

Falkland, V.

Margadale, L.

Alexander of Tunis, E.

Ferrers, E.

Marley, L.

Alport, L.

Feversham, L.

Marshall of Leeds, L.

Auckland, L.

Forester, L.

Montgomery of Alamein, V.

Avon, E.

Fraser of Kilmorack, L.

Murton of Lindisfarne, L.

Baker, L.

Gainford, L.

Newall, L.

Belstead, L.

Glenkinglas, L.

Onslow, E.

Bessborough, E.

Gowrie, E.

Orkney, E.

Blake, L.

Greenway, L.

Orr-Ewing, L.

Brabazon of Tara, L.

Grimston of Westbury, L.

Rochdale, V.

Chelwood, L.

Hailsham of Saint Marylebone, L. (L. Chancellor.)

Sandys, L. [Teller.]

Colwyn, L.

Selsdon, L.

Craigmyle, L.

Hatherton, L.

Sempill, Ly.

Crathorne, L.

Hornsby-Smith, B.

Stanley of Alderley, L.

Cullen of Ashbourne, L.

Kinnaird, L.

Strathclyde, L.

Denham, L. [Teller.]

Kinross, L.

Strathcona and Mount Royal, L.

Digby, L.

Lauderdale, E.

Sudeley, L.

Dulverton, L.

Long, V.

Trefgarne, L.

Eccles, V.

Lyell, L.

Vivian, L.

Elliot of Harwood, B.

Macleod of Borve, B.

Yarborough, E.

On Question, Amendment agreed to.

8.5 p.m.
Lord ROSS of MARNOCK Lord ROSS of MARNOCK moved Amendment No. 2:
Page 1, line 12, after ("are") insert ("not").
The noble Lord said: My Lords, this amendment, I suggest, should be taken with Amendments Nos. 3, 4 and 5. It does not duplicate the last amendment, and I admit right away that it is intended to widen the number of exclusions. The clause would then read as follows:
"This section applies to a dwelling-house which has facilities which are not substantially different from those of an ordinary dwelling-house but which has been designed or adapted for occupation by an elderly person whose needs require accommodation of the kind provided by the dwelling-house and that it is the practice of the landlord to let the dwelling-house for occupation by persons of pensionable age".
I do not know whether or not that is described as "baby language". Taking as true what the noble Lord said, that the number of exclusions and exceptions to sell has doubled, that means that another 6,000 are added. I think I have more respect for Scottish civil servants than some, and I am perfectly sure that this is the calculation that they have made; but if that is so then it means we are not being treated fairly in Scotland and some widening has got to be made. This is where it should be.
This applies to a dwelling-house which is not substantially different. Far too many walls and hedges have been built up to exclude certain old people's homes. I know what has happened in Kilmarnock and Glasgow and all over the place. Houses have been built and let for old people. They are not essentially or substantially different from other houses.
I did not like the sneering remark of the Minister that he was not legislating for "little houses". Some of these little houses, I may tell him, are little palaces to the old people who live in them. They were especially built for them and they are in little groups. They may be in a larger housing scheme but they are in a sheltered part of that scheme. An uncle of mine lived in one of them. The people across the passage were pensioners. There were only two storeys, and those living upstairs were also pensioners. The one who was fittest collected the pensions, and they lived their own little community life. They were not separated; but these houses were all for pensioners. Yet this is the kind of house that, if the Bill passes unamended, can be sold.
What is going to happen if some young couple go in there with three or four in the family? We are back to what we hoped we had got away from in Scotland, the single-bedroomed house, overcrowded, because we shall have no control once the

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house passes out of the ownership or control of the council. If the noble Earl is so concerned about the rights of individuals, will he please concern himself about the rights of the old people in these groups of houses to their peace? No one is threatening that they would lose their houses because they have security under the main Bill.
The noble Viscount mentioned the rural areas. He knows houses, as does the noble Lord, Lord Kilmarnock, in the countryside, which are the sneered-at "small houses". They are the very houses we want to exclude because these are the ones of most value, whether they are in towns or in the countryside, to the district councils to maintain their stock of housing.
The most important words that I remember the noble Lord, Lord Bellwin, using were those when he said that the whole House was concerned to preserve a reasonable stock of pensioners' houses in England and Wales. I am concerned about Scotland and I do not think justice is being done to Scotland in respect of the inclusion of just another 6,000 houses when in England and Wales the number is 221,000. The noble Earl spoke about Dundee and Derbyshire. I do not know anything about that. Neither am I a regular reader of the Sunday Post or the Courier. But I do know the Scottish local authorities. The people of Scotland did not want the Bill. Is the Minister blaming them for reading the Bill? Thank goodness somebody read the Bill, because I think that until it was passed some of the civil servants never even read it; otherwise we would not have had a list of minor amendments. We will come to them later on.
The Earl of MANSFIELD: Not much later, I hope.
Lord ROSS of MARNOCK: My Lords, it is a hope that is going to be deferred, if the noble Earl knows anything about me and my reactions to sedentary interruptions, as we called them in another place. He should think again about the actions of the local authorities. It is amazing how the Government can rush to close up loopholes—perfectly legal ones that certain people have found and which cost dearly the generality of the taxpayers or the
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community; how quickly they move to clear up, or to take steps to avoid loopholes and clear them up if they are discovered. So the noble Earl need not bother blaming local authorities for the concern as to what they think are their rights or because they are battling, which is the cause of the community, and balancing the rights of the community as against the rights of the individual. But we are not going to argue that one.
What I am seeking to do here is to extend it a little bit further. It would still bring in genuine elderly persons' houses. I am perfectly sure that would meet the real wishes of the people who in the first instance voted for the English amendment. I wish there were a little bit, more flexibility in the Scottish Office. It may well be that the trouble is that the noble Earl has far more power in the Scottish Office than I ever imagined he would have, or it may well be that the Secretary of State is too busy with other things and has left the noble Earl with this sphere of influence. If so, his influence so far is not very good. But he has a chance tonight to make history. If he has got all that power, let him accept this amendment. It is not in baby language. I can assure him that I took great care to ensure that it was clear and lucid. Maybe I went too far; I thought that even he would understand it. I beg to move.
Baroness ELLIOT of HARWOOD: If I may intervene, my Lords, I should like to say that, as I think noble Lords know, for many years I was on a border county council. I cannot visualise what the noble Lord, Lord Ross of Marnock, is saying about county councillors who sit on housing committees or social work committees, who understand the needs of elderly people. They would not dream of selling houses unless the old people living in them wanted to buy them. They would not think of selling them to people who were going to ruin the conditions under which the houses were occupied or built; or, as the noble Lord said, housing in the countryside, where in cottages which are all on one floor one can often make a most delightful old people's house. If the person concerned wants to buy it I do not see why he should not buy it.
I was amazed when recently, in the area I know best, a lot — perhaps "lot"

513
is an exaggeration; I do not know how many houses there are, but a certain amount of private building for old people was going on. Those houses are being asked for before they are built, by a whole variety of people. Of course, sometimes they are expensive and obviously old people who are pensioners and have been living in council houses would not be able to buy them, but it is amazing how many people do take out a mortgage and buy new houses being built, not by local authorities. In my day that did not happen. We did not have that because people did not have the facilities they have today to go for mortgages.
I cross swords also with the noble Viscount, Lord Thurso, who has also been in local government for a long time. I do not think any local authority would do something which was going to interfere with or hurt the old people for whom they are responsible. I think noble Lords are not trusting the people who have been elected, who are part of county councils, who understand these things, who want to build more houses.
In the period when I was on the county council we built the first groups of sheltered housing. For some reason or another they had not thought of doing this before. I was dead against building any more large homes for old people. I thought it was so much better to have sheltered housing. No local authority is going to sell those unless it is to someone who is genuinely a pensioner and who would like to have their house.
I think noble Lords under-estimate the way in which local government committees operate. It may well be that in big areas like Glasgow or Dundee, which I really do not know anything about, there is more difficulty, but certainly in the south of Scotland, in the areas which I know, I have no doubt at all that any local authority would be desperately keen to get more houses for old people. I agree with the noble Lord, Lord Ross, that we have not had nearly enough and we ought to have more. But there is also this private building—it has only happened in the last five years or so—of groups of old people's flats or old people's houses and they are spoken for immediately. I have some experience of this because I wanted to get one for an old friend. I
514
did not put my name down quickly enough and I could not get it; they were all gone. That is happening all the time.
Although the Bill covers only one type of house I think that it will not hamper the building of houses for old people. I think it will not do any of the things which have been said so gloomily by the noble Viscount, Lord Thurso, and even by the noble Lord, Lord Ross. I bow to his knowledge of Scotland and his many years as Secretary of State, but my experience is that this will work and I hope very much that we shall get many more houses built and that there will be no restrictions at all of that kind.
8.19 p.m.
Lord HUGHES: I wish to support the amendment moved by my noble friend Lord Ross. I am persuaded to do so very largely because of what the noble Earl, Lord Mansfield, said about Dundee on the previous amendment. I was a councillor in Dundee for 25 years, during which time many of the houses there were built. Before coming on to that I want to refer to what the noble Baroness, Lady Elliot, said. She is perfectly right when she says that no Scottish local authority, particularly the old county authorities and their successors, would sell these houses other than to old people. What she is overlooking is that this Bill does not leave the discretion to the local authority. It takes it entirely out of their hands and puts it into the hands of the person who wants to buy the house.
In some cases, the person who wants to buy the house may well have been persuaded to do so by a son or daughter who will be the heir to the house, and who encouraged the mother or father to buy the house in the knowledge that when, in due course, it came into his or her possession he or she could sell it. Under this Bill, the local authority would be able to do nothing to stop them. They have no right in the matter. The right is entirely in the hands of the person who then has the tenancy of the house. And I ask your Lordships to remember that the son or daughter will be given the right to become the tenant of the house, or will have become the owner of the house of inheritance.
Let me come back to the Dundee situation. The noble Earl seemed to

515
imply from what he read in the Courier that the previous amendment—and I am certain that he will have the same opinion of the present series of amendments—would enable authorities throughout Scotland to drive his proverbial coach and horses through the Act. I suggest that that is not so. But let me first refer to what he regarded as the equality of treatment which Scotland is getting; that more than 200,000 sheltered houses in England are being augmented by more than 200,000 additional houses, and that, if Scotland had 6,000 sheltered houses and there were another 6,000 being built, Scotland would be getting equality of treatment, in that both figures were doubled.
I suggest that his argument is quite fallacious, for this reason, It is quite obvious that there have not been nearly as many sheltered houses built in Scotland, on a proportionate basis, as in England. On a proportionate basis, there should be 22,000 sheltered houses in Scotland for its population, which is approximately one-tenth of the English population. The fact that there are not as many sheltered houses as that is because, proportionately, in Scotland there were more small houses—ones which he rather sneered at—built. There were many houses with a living room, a bedroom, a kitchenette and a bathroom.
The noble Baroness, Lady Elliot, must know the extent to which this was done when she was on the county council. Those houses were, in the main, let to old people. There were not so many sheltered houses built in Scotland, because there was this stock of houses which were regarded as being primarily for old people. If you add that stock to the sheltered housing, that is the figure which we should be comparing with the sheltered housing figure in England, where there was never a tendency to build small houses at any time.
To come to the position in Dundee, and the implication that, if this were allowed, the Dundee pattern could be followed by labour authorities throughout Scotland, I am quite certain he is right that, if this were a loophole which Dundee could use, other Labour authorities who were opposed to the Bill would seek to do exactly the same thing. But it is not a loophole.
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The amendment which my noble friend Lord Ross has moved would amend Section 3A(1), but Section 3A(4) goes on to say:
"Where the Secretary of State has received an application under this section and it appears to him that the dwelling-house concerned is one to which this section applies, he shall authorise the landlord to serve on the tenant a notice of refusal".
With the best will in the world, Mr. Bowman, the leader of the Labour-controlled council in Dundee, cannot persuade the Secretary of State for Scotland that a house is one in the way which my noble friend's amendment would make it, if it is not in fact so. As I said at the last stage, the Secretary of State has to be persuaded that it falls within subsection (1). If he considers that Dundee Corporation, Dundee District Council, Glasgow District Council or any of the other district councils in Scotland are seeking to refuse, and the house is not one which would fall within the wording of my noble friend Lord Ross of Marnock, he has the obligation and the right to say, "You will not be allowed to serve a notice of refusal."
I hold no brief for people who seek to break laws just because they do not like laws. I said that the other day, in connection with a totally different measure, when I did not consider that even the Lord Advocate should have the right to choose the laws which he was prepared to enforce, and I would apply exactly the same arguments to the Dundee District Council. But the Secretary of State has provided himself in this Act with the complete safeguard that he has to be satisfied that it complies with the wording of the section. So, for those reasons, I think that my noble friend is entitled to ask your Lordships to agree to the amendments which he has proposed.
Viscount THURSO: My Lords, the noble Lord, Lord Hughes, has put the position very clearly and very well. I really do not think that the noble Baroness, Lady Elliot of Harwood, has realised the enormity of what her friends are trying to do. These houses, which successive councils have tried to build as a stock of houses for old people who need them, are now at risk because, unless it is amended by the amendment of the noble Lord, Lord Ross of Marnock, the law will state

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that they must be sold to the sitting tenants; that they must be sold to the sitting tenants at a discount; that they must be sold to the sitting tenants at a discount with a loan to do it, if necessary; that having done so there will be no right of pre-emption by the council which built those houses specially for the purpose of housing old people; and that they can then be passed on free of encumbrance to the heirs—whomsoever they may be. They may even be people from quite outside the community, who will merely decide to sell up these houses, which may then be totally lost to the housing stock of the community.
It is monstrous that this should be so. This is not what was intended. To leave it like this is not to give parity between Scotland and England in this matter. I therefore feel at this stage, having lost my own much-loved baby earlier on, that I should do my best to help the baby of the noble Lord, Lord Ross of Marnock, to survive and be born in your Lordships' House. I certainly support his amendment.
8.29 p.m.
The Earl of MANSFIELD: My Lords, perhaps I should repeat what this Act sets out to do. It sets out to permit the exclusion of a category of special needs housing for the elderly which falls between sheltered housing on the one hand—and that is already excluded from the right to buy—and general needs housing occupied by the elderly on the other hand, which neither this House nor the other place have ever agreed should be excluded from the right to buy, whether in Scotland or in England and Wales.
However noble Lords may have thought that I had described small houses, what I was trying to say was really an answer to a Liberal point at the last stage of this Bill, that merely because a house was a small house under the Tenants' Rights, Etc. (Scotland) Act, that was no reason to deprive the tenant of it of the right to buy. I meant no more and no less.
The amendments of the noble Lord, Lord Ross, are essentially very similar to those which he moved at the Committee stage of this Bill. I do not wish to repeat myself more than I have to. We have this intermediate category of
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special needs housing for the elderly in Scotland which has been recognised since 1975 by the previous Government and now by us.
"Amenity housing" is a Scottish term; it is not used in England and Wales. It is different from general needs housing. As I explained on the last occasion, I think, it has a whole number of special features—and I described them—which cumulatively make it significantly different from general needs housing. I really must stress that there is no controversy outside the Bill about the reasonableness of this categorisation of housing for the elderly and I can assure your Lordships that the Bill as it stands will allow amenity housing to be excluded from the right to buy.
The noble Lord, Lord Ross of Marnock, was honest enough to say quite frankly that what his amendment seeks to do is to enlarge the category or the class of house which will be excluded. In fact, his amendments are directed at excluding houses which are so near general needs housing as to make no difference. The effect of Amendment No. 2 would be that in order to qualify for the right to buy, a house must have facilities which are not substantially different from those of an ordinary dwelling-house. In other words, the house must be more or less indistinguishable from a general needs house. It follows, then, that the real criterion governing its exclusion from the right to buy is whether it is occupied by an elderly person.
Noble Lords opposite are really arguing, as they have all along, that the elderly should not have the right to buy. That is a point of view which is entirely for them, but I am bound to point out that it is fundamentally in conflict with the Tenants Rights, Etc. (Scotland) Act, whose whole purpose is to confer on individual tenants, unless the community has a very strong need to retain public ownership, the particular house in which they live.
The Government's view, quite simply, is that the community cannot be said to have a need in relation to houses which are not significantly different from the general run of houses. We accept that many old people will not want to buy their houses. This will be particularly true of those who are sufficiently infirm and who for that

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reason live in amenity or sheltered housing. But equally there will be many hale and hearty tenants who have reached pensionable age and who have a considerable life ahead of them, and they have every right to spend the remainder of their years in a home that they can call their own. If they wish to use their savings for that purpose and to buy their independence, who shall deny them?
I have concentrated on principles rather than drafting. I suggest that this is a form of words which really should not be written into any public Bill. Other than that, however, I am not going to criticise the drafting.
The noble Lord, Lord Hughes, raised what may go down in the books as "the Dundee loophole"—
Lord HUGHES: No, I did not. The noble Earl did.
The Earl of MANSFIELD:— and in doing so he made what I am sure he would not wish to do—namely, a false point. As I said on the previous occasion when this matter was before your Lordships, and it is right that there should be no misunderstanding about it, subsection (4) of the Bill does not give to the Secretary of State what I might call a quasi-judicial function. The wording which appears in many, many statutes—"it appears to him"—is to be taken as meaning "if prima facie there appears to be". I can put it in this way, by saying that this is a very low threshold. If the circumstances, as I say, amount to a prima facie case, then the Secretary of State is under the duty set out in the latter part of subsection (4). What he is not entitled to do is to exercise a quasi-judicial function and to decide the matter on the merits. If he did, then it would be open to the local authority to take legal action against him.
Lord HUGHES; My Lords, the noble Earl said that it would be open to the local authority to take legal action, but in that case the local authority would have to satisfy the courts that it had been their practice to let that house to persons of pensionable age. If in fact it had not been, obviously their case would fail.
The Earl of MANSFIELD: My Lords, I think the noble Lord misunderstands me.
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All that the local authority would have to show is that prima facie the application under the section is one which comes within the exclusion. That is all. That, no more and no less, is the duty which would be on the local authority.
This is a matter which we have debated on a number of previous occasions, and I cannot help your Lordships further. The noble Lord, Lord Ross of Marnock, was frank enough to say that his intention in moving these amendments was to enlarge the class of houses which could be excluded from the terms of the Bill. I can only ask your Lordships, if the matter is going to be pushed to a Division, to reject this amendment.
8.37 p.m.
Lord ROSS of MARNOCK: My Lords, I am disappointed but not surprised, because I feel that the noble Earl the Minister is acting very much under instructions. We can sympathise with the Government in the troubles that they are in. They have got to take this to another place. They will have to go through the hoops of Second Reading, Committee stage, Report stage and then Third Reading. It is indeed a very interesting Bill. There was a time when a very young Member for Kilmarnock would have kept them there for a long, long time. The Bill is capable of very considerable variation and amendment.
Of course, the Government have not got the time. That has been one of the troubles in respect of both this Bill and other Bills which we have been considering. I do not know how civil servants and draftsmen have stood the pace. No wonder they make mistakes. Then there are changes of mind by Ministers. Look at what we have just heard. There is to be this fall-back of the Secretary of State having to be satisfied if it
"appears to him that the dwelling-house concerned is one to which this section applies …".
It says, "If it appears to him". The only other difference is that in the English Bill the Secretary of State has got to be satisfied that it falls within the section. Then he must act.
We have heard what the Minister of State for Scotland says: that these words do not mean all that much. Oh, yes,

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they do. That is why they are there, according to the English Minister, Lord Bellwin, in this House. There is no mystery about the reason for introducing the requirement for a determination before a dwelling is to be treated as exempt; it is intended to remove the scope for reluctant local authorities to exploit the exclusion. As amended, that power remains with the Secretary of State for Scotland. The local authority cannot exploit it, but the Secretary of State says that the local authority could take legal action. However, the local authority can take legal action, even under the unamended Act. Surely the Government are not going to deny them the right to take legal action to see whether or not the Secretary of State is acting in accordance with the law. So the noble Earl made a false point.
It might well be that there is more scope in respect of the kind of houses, and I admitted at the start that this was necessary because of the whole history of Scottish housing. The curse of Scotland was the single end and the rooming kitchen and for years and years local authorities would not build that size of house. They were building for large families and for families of two or three, and of course suddenly people began to realise that there were more and more old people in the population and they had to build for them. They built houses for pensioners. They were little houses; very good little houses, but once they go out of the control of the councils these little houses will be open to anyone and they will be the kind of houses that young married couples will buy and after three or four years we shall be back to the situation of having overcrowded small houses. That is the danger of this.
Baroness ELLIOT of HARWOOD: My Lords, if I may interrupt the noble Lord, I bow to his knowledge of Scotland more than to anyone else's but the fact remains that there are a lot of empty houses. I know of many four-roomed houses in the Borders—200 of them in one place alone. They are not going to allow people to put a father, mother and three children into a little house built for pensioners. They would not be allowed to do it; they would have to take the houses which were built for ordinary people and the pensioners' houses will remain for pensioners.
Lord ROSS of MARNOCK: My Lords, the noble Baroness said that we would not allow it, but the trouble is that we shall not have any option because the right will be that of the existing pensioner to sell and to sell to anybody, and the council will not come into it.
The Earl of MANSFIELD: My Lords, if I may make a comment here, as the noble Lord has twice spoken of overcrowding, what about the private sector Housing (Scotland) Act 1966, which gives the council not only the right but the duty to take action against overcrowding in these circumstances?
Lord ROSS of MARNOCK: And, my Lords, what action will they take? Will the noble Earl tell me when last they took action in respect of a privately owned house? He can give me the information about that, surely, because obviously it has been exercising his mind for a long time. When did a local authority take action at law against a private tenant who was overcrowding his house? It is a different matter with a slum, but we were not speaking about slum houses; we were speaking about allowing situations to occur which will create slums where we now have perfectly good old people's houses. That is the problem.
The answer to the noble Earl, of course, is that very often the local authority will take action after the trouble has been caused, by giving them another house and they have certain rights in respect of which house they will take and the local authority are not being allowed to build.
I am perfectly sure that anyone who knows anything about the history of Scottish housing will know just exactly what I am driving at here; and this is the reason why we have such a small number of sheltered houses. The noble Earl said, I think it was at Committee stage, that the extension of the exclusion is to houses that are not quite sheltered housing. Probably the only thing they lack is a warden or an alarm system. That is not good enough to give us equality of treatment in preserving a stock of housing for old people.
I do not intend to divide the House at this time of the night. We have already had a very effective Division by the noble

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Viscount tonight, and I am sorry that he just failed to get all the support that his amendment merited. I certainly will not allow it to pass without recording my dissent, but I do not propose to divide the House.
On Question, Amendment negatived.
[Amendments Nos. 3 to 5 not moved.]
8.45 p.m.
Lord ROSS of MARNOCK Lord ROSS of MARNOCK moved Amendment No. 6:
Page 2, line 40, leave out ("and shall be deemed always to have been").
The noble Lord said: Here we come to something which is very important for anyone who has any respect for the laws, be it in England or in Scotland, and indeed for the watchdog function of the House of Lords.
The Earl of MANSFIELD: My Lords, will the noble Lord evince even more respect by speaking to Amendment No. 8 at the same time?
Lord ROSS of MARNOCK: No.
The Earl of MANSFIELD: Oh, very well.
Lord STRABOLGI: It is the noble Lord's amendment, after all, my Lords.
Lord ROSS of MARNOCK: My Lords, I have been seeking to be helpful to the noble Earl. Indeed, no one could have been more helpful; I took the last five amendments together, so I am not being obstructive. There is a very different principle here. It took more than six months for this Bill to reach the statute book. It went through every stage: Second Reading, Committee stage, Report stage—as many stages as there are Members on the Front Bench opposite talking away at the present time. I was hoping that one of them would listen. The Bill came to this place and it got Second Reading, Committee stage, Report stage, and we could possibly amend it even on Third Reading and then there would come the Question, That the Bill do now pass?
Here we have a second clause. Nothing that was promised, so we are out of the
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way of arguing about who said what in another place. We are now down to the fact that here is a Bill which is being amended in the same Session in which it was passed. As I said earlier, after the Bill had passed, somebody decided to read it. I do not know whether it was a Minister, a civil servant from the Scottish Office or a draftsman from the Crown Office, but they found that there were mistakes and just because there had been a row in another place a pledge was given that another Bill would be introduced to give the chance for it to be put right, quicker than has ever been done by any other Bill. It is a monument to somebody's mismanagement and of course they seized the chance. So here we have (a), (b), (c), (d) and (e) and so we wipe the slate clean.
This amendment which I am now moving is to leave out certain words because Clause 2 says:
"The principal Act shall be and shall be deemed always to have been subject to the following amendments—"
I do not mind the business of wiping the slate clean, but to say that the slate was never chalked over is quite a different matter. That is the principle. It is what is called retrospective legislation and I have heard lawyers in another place—and I have even heard them in this place in the short time I have been here—telling us about the evils of retrospective legislation and that it should not be done, not even for something as unimportant as this, because some day somebody will come along with some evil thoughts and they will refer to the precedent here and they will say, "It was done by the Tory Government on 29th October, 1980 and because they did it, we can do it too".
So that is what it means. The amendment is correcting errors of omission or commission and saying that they never took place. That is a very serious legal matter in legislation. That is why I am not considering the substance of these other amendments which I tabled. I want the Scottish Office Minister to justify this aspect of retrospection in respect of this particular line. I beg to move.
8.50 p.m.
The Earl of MANSFIELD: My Lords, I think the kindest thing I can say about

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the noble Lord's amendment is that he does not know what he is talking about. The amendment would remove the deeming provision which in effect says that the Act shall always have been subject to the amendments listed in Clause 2. There is only one to which it has any relevance and that is (e) the heritable proprietor, because those listed at (a), (b), (c) and (d) of Clause 2 all relate to provisions which in fact will not come into effect until 1st December. So it may look retrospective but in fact it is not. The whole amendment is purely for the avoidance of doubt and it makes no substantive change at all. The rights of the landlord and the rights of the tenant are totally unaltered by this deeming provision. What we are seeking to do is to make a clean job of dispelling the uncertainty which one or two authorities have stirred up. This is why I wanted the noble Lord to speak to Amendments Nos. 6 and 8 at the same time because it really all hangs together. Nevertheless, we must have that surprise when we come to it.
The practical significance of this deeming provision is not that any rights are removed which might have existed at the time when the Act came into force. In fact it does two things: it gives guidance to the lands tribunals before whom a tenant who has been denied his rights can take the landlord. What it will do is to discourage a recalcitrant landlord who refuses to allow tenants to buy their houses and forces them to go to the lands tribunal, not because it knows that it is ever going to prevent the sale, because it knows full well that at the end of the day it cannot; nevertheless it could, in the circumstances which I illustrated earlier, simply hold the matter up. Although on the face of it it seems to be retrospective, since the noble Lord will appreciate that no such thing is intended, nor can it have that effect, I hope the noble Lord will feel able to withdraw the amendment.
Lord ROSS of MARNOCK: Well, my Lords, the noble Earl says I do not know what I am talking about. I am beginning to wonder whether the noble Earl knows what is written down. There is no doubt at all about it; he admitted it; it looks like retrospection and indeed it is retrospection. If, after a Bill has passed, after it has become law, after it has come into
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operation, you make an amendment and then deem that that amendment was always there, of course it is retrospection. The noble Earl refers to certain technical changes that were made which do not arise; they are not consequential on this amending Bill. Obviously, I do not object to those changes. But he says it is not retrospection because they refer to sections of the Act that have not come into force. But he referred only to one amendment, the one in Clause 2 in respect of the heritable proprietor.
If I had received from the noble Ea an answer that this was a practice allowed by Parliament in respect of removal of doubt, perhaps in respect of a judgment that had been given by a court which was contrary to the expectations or the intentions of Parliament, then I might have accepted it. But he did not say that. If he said anything he said that they did not really matter. If they do not really matter why are they there, why are we discussing them as late as this, at five minutes to nine? My goodness, it is terrible! I do not know that he knows what he is talking about. I sympathise with him; he is an English lawyer—and I say that with all generosity in my heart—dealing with a Scottish Bill, with some experience of a Scottish local authority but not one which was highly controversial and dealing with these matters in everyday life.
I still am disappointed that he has not given me an answer to this question. Is not this retrospective amending? I can remember lawyers in another place who could have spoken for hours on the evil of this and have suggested that it should never be done, even on small matters like this, because it would be creating a precedent. I am not going to argue with the noble Earl about it, but if the other Lord sitting beside him wishes to tempt me I could carry it on for quite a long time. He is there as the legal adviser, no doubt, to the Minister of State. I am not going to take a chance of getting advice from that quarter. So, having heard the Minister's explanation, I am not going to proceed with a Division in respect of this amendment and I reluctantly beg leave to withdraw it.
Amendment, by leave, withdrawn.
The Earl of MANSFIELD The Earl of MANSFIELD moved Amendment No. 7:
Page 2, line 42, at end insert—
("(a) in section 4(4) after "elderly" insert "(that is to say, of pensionable age)";").
The noble Earl said: My Lords, I beg to move Amendment No. 7. There is a misprint in the Marshalled List. It should read: "Page 2, line 41, at end insert" the said words. This amendment is consequential on an amendment which was moved by the noble Lord, Lord Ross, and accepted by your Lordships at Committee stage of this Bill, to the effect that "elderly person" is defined as a person of pensionable age for the purposes of the new Section 3A which it is proposed in subsection (2) of Clause 1 of the Bill should be inserted into the Act. As I said, this is consequential to the amendment previously accepted. I beg to move.
Viscount THURSO: My Lords, if the noble Earl is going to submit a change from what is on the Marshalled List, should there not be a manuscript amendment?
The Earl of MANSFIELD: My Lords, this is not part of the amendment; it is merely describing it, and it is a misprint. I think somewhere little words like de minimis are beginning to ring round my head.
Lord ROSS of MARNOCK Lord ROSS of MARNOCK moved Amendment No. 8:
Page 3, leave out lines 6 to 13.
The noble Lord said: My Lords, this amendment is to leave out lines 6 to 13. It did not surprise me that the only reference the noble Earl made when we were discussing the last amendment was to the minor amendment in paragraph (e) which I seek to leave out, where he defines "heritable proprietor",
"in relation to a dwelling-house includes any landlord entitled under Section 3 …".
et cetera. I am perfectly sure the noble Earl has got a perfectly lucid brief. I hope it is in simple language—I do not say baby language—so that he will be able to explain to the House the importance of this, and why after all these weeks and months, it has been felt necessary to put in this particular definition. I beg to move.
The Earl of MANSFIELD: My Lords, Section 1(11) of the Act provides, in part, that the right to buy does not exist where a landlord does not own the house in question. That would seem to be a matter of common sense. However, the provision uses the term "heritable proprietor" to denote ownership and it has been suggested by one or two local authorities that a technical quibble about Scots' conveyancing terminology could give rise to some doubt about whether "heritable proprietor" covers all forms of ownership. I may say that the Government are confident that the Act, as it stands, is sound and this has been confirmed by no less an authority than Professor Halliday, whose opinion was taken by a number of local authorities.
However, one local authority took the unusual step of writing to all the other Scottish authorities putting forward the view that there is room for some doubt about the interpretation of the phrase "heritable proprietor" and that has inevitably resulted in uncertainty which it is desirable to resolve. The effect of the other interpretation that has been suggested is that local authorities would be treated as not being the owners of houses which they took over as a consequence of local government reorganisation. That is clearly a tempting prospect for would-be recalcitrant authorities, and I think that it demonstrates clearly that the Act is sound and that since the legislation came into effect only one local authority—which has long-advertised its intention of exploiting every opportunity of causing delay and discouraging tenants—has decided to exploit this doubt as a pretext for refusal to sell any house which it took over on local government reorganisation in 1975.
Clearly it is desirable that there should be no vestige of doubt about a provision of such importance affecting the right to buy of the majority of Scotland's public sector tenants. This amendment is brought forward purely for the avoidance of doubt. I stress again that the amendment contained in Clause 2 of the Bill confirms the interpretation of the Act which we are confident it already bears, and that which there is absolutely no doubt that Parliament intended it to bear. There can be no argument against the Bill's provisions as they stand other than a desire to give comfort to any local

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authority which wishes to cause delay and discourage its tenants from exercising their statutory rights. I hope that that explanation will satisfy the noble Lord.
Lord ROSS of MARNOCK: My Lords, I do not know whether the rest of the House is satisfied?
Several noble Lords: Hear, hear!
Lord ROSS of MARNOCK: But I can tell the rest of the House that I spent quite a bit of time in the Library and I have here in my hand the Conveyancing (Scotland) Act 1924, and I turn to Section 3. What surprises me is why the Government missed this very important point right at the start. I said earlier that the noble Earl, and maybe some others as well, were so obsessed with the obstructive local authorities that they were closing up main gates and forgetting that there might have been some holes and hedges, with the result that this question of doubt in respect of this matter has arisen.
The noble Lord's explanation is quite right. I am not so sure, though, that it is entirely fair because a local authority has a right if there is a doubt, to have it cleared up in the courts. We must remember that there are time limits in the Bill in respect of which they must reply to the local authorities and some of those time limits may well have been eroded. And for the noble Earl to come along and clear up doubt, as he says, and at the same time make no change in respect of the time limit, may be unfair to a particular local authority. I hold no brief, and neither does my noble friend Lord Hughes, for anyone who defies the law, but if the law is in doubt then such a person has as much right as anyone else to have that doubt removed by going to the courts. So I accept the explanation and the reasons for it and I am also grateful for the fact that the string of local authorities that we have heard about during consideration of the Bill has now been
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reduced to one. In view of that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 9 not moved.]

ROYAL ASSENT
9.5 p.m.
The LORD CHANCELLOR: My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Acts:

Law Reform (Miscellaneous Provisions) (Scotland) Act,

Married Women's Policies of Assurance (Scotland) (Amendment) Act,

Imprisonment (Temporary Provisions) Act,

Inverclyde District Council Order Confirmation Act,

City of Dundee District Council Order Confirmation Act,

United Reformed Church Lion Walk Colchester Act.

EAST SUSSEX BILL [H.L.]
The Queen's Consent signified; reported from the Select Committee on unopposed provisions with amendments.
HUMBERSIDE BILL [H.L.]
The Queen's Consent signified; reported from the Select Committee on unopposed provisions with amendments.
COUNTY OF KENT BILL [H.L.]
The Queen's Consent signified; reported from the Select Committee on unpposed provisions with amendments.