Lords Sitting of 10 December 1981

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

Air Fares: Discounted Tickets
Baroness Burton of Coventry: 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, in view of current developments in air travel including the growth of "bucket shops", they will make a statement on the availability of discounted air tickets to the general public, and whether any action is contemplated.
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Lord Trefgarne): My Lords, British Airways and the Association of British Travel Agents have recently announced that they intend to make discounted tickets for certain destinations available at ABTA agents for a period of three months from 1st January. The Civil Aviation Authority has invited British Airways to file the new fares.
Baroness Burton of Coventry: My Lords, that is a little more than I expected but not enough. May I ask the noble Lord the Minister whether he is aware that this is, of course, the first time that discount air tickets will be available over the counter? As these tickets are competitive with "bucket shop" tickets and, as he has said, cover British Airways routes to the Far East, can he say whether or not the Government will be able to encourage the use of these, as it will bring discounted air tickets within more general availability to the public for the first time? Does the noble Lord know also that British Airways and the Association of British Travel Agents have admitted that their pact is illegal, but, as the Government have taken no action over illegal transactions in the past, they expect that the Government will not be taking any action over this one? Will the Minister comment?
Lord Trefgarne: My Lords, there is no question of illegality with the present proposal, which has not come into force yet. As I said at the end of my first Answer, the Civil Aviation Authority has invited British Airways to file the new fares, which doubtless they will do.
Baroness Burton of Coventry: My Lords, that is an extraordinary answer. Does the noble Lord the Minister know that bookings for these tickets will be accepted from 14th December, which is Monday, that the tickets will be usable on 1st January, and furthermore, that the 2,000 agents who will be selling them will have to undertake large and extensive advertising
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campaigns? Do the Government intend to condone an advertising campaign which is illegal according to present laws? Or are they at last prepared to amend the legislation, removing the offending section and thus making it legal?
Lord Trefgarne: My Lords, I have on many occasions explained to your Lordships the legal complexities of this matter, including the need to carry other Governments with us in the necessary negotiations. As I said, the Civil Aviation Authority has invited British Airways to file new fares and I see no reason why the process should not be completed by the time the new arrangements come into force.
Baroness Burton of Coventry: My Lords, I do not wish to be a nuisance and the House has been very patient, but may I ask the Minister, because he has so often said that they cannot do anything on this matter and it is for IATA, whether he is aware that this particular endeavour is supported by the Association of British Travel Agents, by British Airways and by IATA? And is he proposing to get it all put in order, or the legislation altered, by Monday, 14th December?
Lord Trefgarne: My Lords, it is not necessary to alter the legislation by 14th December, or indeed by 1st January, when the proposals are to come into effect, provided the processes of the Civil Aviation Authority approval, and subsequent Government approval, if that proves to be necessary, can be achieved by that time. I have no reason to think that they cannot.
Lord Derwent: My Lords, am I right in thinking that this is the end of Round 14?
Lord Drumalbyn: My Lords, may I ask whether similar action has been taken by overseas competitors in other countries, in competition with British Airways?
Lord Trefgarne: My Lords, British Airways apparently take the view that on the routes on question the amount of discounting that is going on by other airlines is such that they have to compete in this perfectly proper way. What the reaction of the other airlines will be to British Airways' move is not for me to suggest.

Land's End
3.6 p.m.
Lord Molloy: My Lords, I beg leave to ask the first Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will make a statement on the future of Land's End.
The Earl of Avon: My Lords, the Countryside Commission has put foward proposals to enable it to offer grant aid to the National Trust towards the cost of acquisition of Land's End and subsequent restoration of the site. My right honourable friend hopes to respond shortly.
Lord Molloy: My Lords, is the noble Lord aware that that is a most encouraging reply, and that I am truly grateful for his help in this matter? I believe that what the Government, with the National Trust, intend to do will fortify many people who are anxious, and that his statement this afternoon in answer to my Question will be welcomed throughout the nation.
The Earl of Avon: My Lords, I hesitate to pour cold water on such a nice response from the noble Lord, Lord Molloy, but I must say that all I went as far as saying was that my right honourable friend hopes to respond shortly. There are quite a number of hurdles to go before any final decision is made.
Lord Strabolgi: My Lords, may I ask the noble Earl if he is aware that during the time of the last Labour Government, when the Battle Abbey site was under threat, the Secretary of State intervened? Will the Government follow the excellent example?
The Earl of Avon: My Lords, with all due respect to the noble Lord, there are many miles of difference between Land's End and Battle Abbey. One of the difficulties about Land's End is that it is difficult to know what actually we are trying to preserve.
Lord Strabolgi: Oh, come on!
The Earl of Avon: My Lords, the noble Lord says, "Come on!" but perhaps he can tell me whether it is an hotel, the land itself, the car park, the litter bin, or what? What I am trying to say is, it is clearly up to the Countryside Commission and the National Trust to advise us in this matter, which they are doing.
Lord Molloy: My Lords, may I ask the noble Lord if he would be good enough to "recce" the course, to be able to help his right honourable friend over any of the hurdles which he might find difficult?
The Earl of Avon: My Lords, I will indeed, and in fact I took advice from my noble friend Lady Faithfull before this afternoon's Questions, when she told me that she had been there during the war when the hotel was actually bombed.
The Earl of Lauderdale: My Lords, can my noble friend tell the House where Land's End begins?
The Earl of Avon: No, my Lords, I can only tell my noble friend where it ends.
Lord John-Mackie: My Lords, would it not be a nice gesture if the Duke of Cornwall bought it?
The Earl of Avon: My Lords, that is indeed an interesting suggestion, which I shall bear in mind.
Lord Brockway: My Lords, can the Minister say when a decision is likely to be reached on this matter?
The Earl of Avon: My Lords, so far as the Government are concerned, I understand that the National Trust is meeting on 18th December and it is hoped that all decisions will be made before that day.

Judges: Political Statements
3.8 p.m.
Lord Molloy: My Lords, I beg leave to ask the second Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what, if any, restrictions exist to compel Her Majesty's judges to refrain from making political statements.
The Lord Chancellor (Lord Hailsham of Saint Marylebone): My Lords, as the noble Lord will be aware, it is a fundamental principle of the constitution of this country that, subject to the sovereignty of the Queen in Parliament, the judiciary is independent. But Her Majesty's judges are well aware of the established principle that they do not take part in matters of political controversy, and that in their decision of the cases which come before them it is their responsibility to do justice to all manner of people in accordance with law, without fear or favour, affection or ill will.
Lord Molloy: My Lords, in thanking the noble and learned Lord the Lord Chancellor for that reply, may I ask whether he would not agree that it is highly desirable that members of the judiciary should not make statements of a political character, irrespective of the particular case in which they might be involved?
The Lord Chancellor: My Lords, I think that is fully covered by my original Answer.
Lord Simon of Glaisdale: My Lords, nowadays do not judges in many cases have to do the work that was formerly done by a judge and a jury? Do not judges, unlike a jury, have to give reasons for their judgment, and is it not then inevitable that, in certain cases of a political character, there may be a political element in the judgment? Inevitably, is that sometimes not pleasing to keen political partisans?
The Lord Chancellor: My Lords, I think the answer to my noble and learned friend's questions in each case is, Yes.
Lord Morris: My Lords, bearing in mind his answer to the original Question, may I ask the noble and learned Lord the Lord Chancellor whether Lords of Appeal in Ordinary are included in that category, as Peers of Parliament?
The Lord Chancellor: My Lords, I thought the Question related primarily to judges who are not Lords of Appeal in Parliament, but I think it is the case that, as has just happened, the noble and learned Lords on the Cross-Benches do make valuable contributions to our debates. I think, in the main, their intervention is generally welcomed in this House. They do not usually intervene in matters which are controversial in any political sense.
Lord Jenkins of Putney: My Lords, would the noble and learned Lord the Lord Chancellor recommend my noble friend to read Professor John Griffith's The Politics of the Judiciary, and in particular the chapter headed "The myth of neutrality"?
The Lord Chancellor: No, my Lords. I think the noble Lord is well capable of choosing his own literature without assistance either from the noble Lord or from me.

Dr. Leonard Arthur: Cost of Prosecution
3.12 p.m.
Lord Vernon: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what was the total cost to public funds of the recent prosecution of Dr. Leonard Arthur at Leicester Crown Court.
The Lord Chancellor: My Lords, the legal costs of prosecuting counsel and witnesses were £15,985. The remaining costs have not yet been taxed. The overhead costs (court time, heating and lighting and so on) are not separately ascertainable. Jurors' expenses must also be added.
Lord Vernon: My Lords, while thanking the noble and learned Lord for that reply, may I ask whether he is aware that very many people throughout the country deplore the fact that this prosecution for murder of a Down's syndrome baby—later the charge was changed to attempted murder—was ever brought in the first place? Does he not think that in these admittedly very delicate and difficult cases it is better to leave the decision to the discretion of the medical profession, who have over the years exercised that discretion with both humanity and good sense?
The Lord Chancellor: My Lords, I think the noble Lord has momentarily forgotten that oral Questions in this House are for Her Majesty's Government and that Her Majesty's Government are not responsible to this House for the prosecution of offences. Ever since the Campbell case, when my father was shadow Attorney-General, it has been established that the Attorney-General occupies an independent position in this respect.
Lord Mishcon: My Lords, does not the noble and learned Lord agree that the whole question of prosecution and who should be the decider as to who should prosecute in criminal offences ought to have the attention of Her Majesty's Government?
The Lord Chancellor: My Lords, this case related to a particular instance and that Question does not arise out of that instance.
Lord Wilson of Langside: My Lords, I hesitate to intervene in relation to a matter pertaining to the administration of English criminal justice, but may I ask the noble and learned Lord the Lord Chancellor if he thinks it is conceivable that any sensible English jury properly directed by the presiding judge could have returned a verdict of guilty of murder or guilty of attempted murder against the doctor in question? If he thinks that is conceivable, would he agree that
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perhaps there is something wrong with the English law pertaining to murder? If, on the other hand, he thinks it inconceivable that any sensible English jury properly directed could return such a verdict, does he agree that some public recognition should be given to the doctor concerned that the person who made the decision to prosecute was guilty of a serious error of judgment?
The Lord Chancellor: My Lords, that is an attempt to make me express an opinion upon the particular case, in which I neither heard the evidence nor the arguments, and I would not be prepared to do so. But even if I were, it is not a proper question to address to Her Majesty's Government, for whom I am answering this afternoon.
Lord Vernon: My Lords, I wonder whether I could put a final supplementary to the noble and learned Lord. Dr. Arthur was sent for trial on 4th April this year and the case did not come up until the middle of October. Does the noble and learned Lord not think that this puts a quite intolerable strain not only on innocent defendants but on their families, and could not something be done to speed up the administration of justice?
The Lord Chancellor: My Lords, I have repeatedly said, in both my terms of office, that I am particularly concerned by the delay between committal and arraignment. I managed to divide it by two in my first term of office, and there are some encouraging signs now. But I should not like to intervene in individual cases.

Reserve Forces Bill [H.L.]
The Earl of Avon: My Lords, on behalf of my noble friend Lord Trenchard, I beg to introduce a Bill to change the name of the Territorial and Army Volunteer Reserve and to amend the Reserve Forces Act 1980. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read 1a.—(The Earl of Avon.)
On Question, Bill read 1ª, and to be printed.

Copyright Act 1956 (Amendment) Bill [H.L.]
Lord Fletcher: My Lords, I beg to introduce a Bill to amend Section 21 of the Copyright Act 1956 so as to make it an offence to be in possession of an infringing copy in the course of trade. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read 1a.—(Lord Fletcher.)
On Question, Bill read 1ª, and to be printed.

Civic Government (Scotland) Bill [H.L.]
3.19 p.m.
The Minister of State, Scottish Office (The Earl of Mansfield): My Lords, I beg to move that the House

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do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(The Earl of Mansfield.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
Clause 1 [Application of Parts I and II of this Act]:
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 1:
Page 1, line 6, leave out from ("effect") to ("licensing") in line 7 and insert ("with respect to the").
The noble Lord said: It is hard to believe that this Bill was 10 years in preparation. If we look at the first clause, I cannot think of any clause of any Bill that was more uninformative. I may have something to say about that when it comes to the Question that the clause, stand part. Meantime I content myself with trying to reduce the number of words in the clause, and therefore I beg to move Amendment No. 1.
Lord Wilson of Langside: I think this amendment is a very desirable one. Any amendment which uses four words where eight are used in the Bill as at present, is surely to be encouraged.
The Earl of Mansfield: I appreciate the intention of the noble Lord, Lord Ross of Marnock, to shorten Clause 1. Whether a rather woolly phrase like the noble Lord suggests—"with respect to the"—is preferable to the draftsman's choice I am not really sure. But bearing in mind that the noble Lord is most ably supported by the noble and learned Lord, Lord Wilson of Langside, and hoping that this will not be taken as a precedent of softness to be displayed through the rest of the Bill's passage through your Lordship's House, I shall be happy to accept the amendment.
Lord Ross of Marnock: The noble Earl has started well. I say that I have shortened the Bill so that it makes room for some of the longer amendments later on which I am perfectly sure the noble Earl will accept.
On Question, amendment agreed to.
Lord Campbell of Croy Lord Campbell of Croy moved Amendment No. 2:
Page 1, line 8, at end insert ("and for such other activities, previously subject to licensing under other enactments, as the Secretary of State may prescribe").
The noble Lord said: I beg to move Amendment No. 2. I think that the purpose of this amendment is clear, and that is exploration. I hope that it will give the Government an opportunity to indicate what their future policy is in relation to rationalising licensing procedures in Scotland. Let me begin by saying that I applaud thoroughly the intention in the Bill to bring a number of activities under a general licensing scheme, the particulars of which are in Schedule 1. Moreover, that scheme is similar, in regard to the application procedure and other procedures, to the latest licensing system on which we went into detail in 1976 in the Licensing (Scotland) Act 1976.
As noble Lords will remember, that Act dealt with liquor, public houses and kindred matters following the report by the Clayson Committee which, in Scotland, was the equivalent of the Erroll Committee for England and Wales. This House considered that Bill in some detail. Indeed, we went into Committee upstairs—an infrequent thing for your Lordships' House—and spent several days on that Bill. The particulars in Schedule 1 seem to follow the pattern of that licensing system for liquor and associated subjects.
Nonetheless there are still other activities which require licensing under separate systems. Let me give some examples. First, for bingo licences under the Gaming Act 1968 there is a separate procedure; for bookmakers' permits under the Betting, Gaming and Lotteries Act 1963 there is a separate procedure; for cinemas under the Cinematograph Acts 1909 and 1925 there is a separate procedure. I have already referred to the Licensing Act of 1976. In the appropriate section dealing with clubs the procedure requires the sheriffs to take a major part in the proceedings.
It would, I believe, be conducive to efficient administration if, in due course, more activities could be brought within the general licensing system following the principle which the Government are bringing forward in this Bill. Indeed, in this Bill there are a number of activities which will be dealt with under this new licensing system, and it will certainly he easier to operate the system of licensing these various activities in Scotland and it will be much easier for the public to follow what is happening.
Therefore, I would ask my noble friend: What are the prospects for bringing more activities under one general system of licensing? Are the Government proposing to consider whether other licence activities could be grouped with those in the Bill for this same system of licensing? Is it, indeed, the intention that the admirable principle in the Bill should continue to apply?—that is to say, that the system in Schedule 1, once enacted, should be extended to other activities in due course. If that is the Government's intention, then can my noble friend give any indication as to how it is proposed that this should be done? If, for example, in a year or two, two or three of the activities of the kind I have mentioned could be brought within this new general system of licensing, would that have to be done by legislation? Would it need a short Bill or could it be done by a statutory instrument? I beg to move.
Lord Ross of Marnock: I think that this is an admirable amendment but probably not too accurate in wording. I think that what the noble Lord really means is not "previously subject to licensing", but "already subject to licensing". I hope that we do not get that excuse from the Government to turn the amendment down. I am sure that that is what the noble Lord really means.
The noble Lord is quite right. There are so many other aspects of civic administration where licences are required, but unfortunately the one which always springs to mind as soon as one mentions licensing is liquor licensing. In fact we have a large number of Bills—the Licensing (Scotland) Bill of this year, that year and the next year—but as soon as people hear the word "licensing" they think of licensed premises

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supplying strong and not so strong drink. However, as the noble Lord has said, there are bingo licences, cinema licences and club licences, which are part of the licensing Acts themselves, and there are also football ground licences. It would be far, far better to consider them together. I suppose that one of the difficulties—it is one of the weaknesses of the Bill—is to get a system of licensing which, without very considerable change, could be applicable and could be fair in respect of all these particular cases. It is true that the working party which he set up in 1972 thought that the present system where the licensing of window cleaners, news vendors and shoe-blacks—many of whom have been dropped and who the very wording of the amendment might bring hack if we include the word "previously"—was in a very haphazard way without rights of appeal and a proper examination of the matter.
Of course, in the first clauses of the Bill we have no indications of the situation. We talk about "licensing" but we do not have a clue as to what we are licensing. One of the reasons why I think that this is, in structure, a bad Bill, is that we do not know what we are licensing. We are going to talk about the great long schedule of the kind of administration, the forms and everything else, as well as further powers to the Secretary of State, and we do not know yet what we are licensing. One has to read the whole Bill before one can understand Clause 1. However, the noble Lord is quite right. If we could get, with modifications, a licensing system that would cover the whole lot, then it would be very desirable. I am prepared to support the noble Lord in that respect.
Lord Drumalbyn: I wonder whether we have not already got what my noble friend is asking for and, indeed, to a large extent what the noble Lord, Lord Ross, is also asking for. Am I not right in thinking that we have in Part I a system of licensing that covers all the cases that are required for licensing in Part I and therefore it is, to that extent, uniform? Then, as soon as we get to Part II we reach Clause 46 where we find that the Secretary of State can designate any activity other than the ones specified in Part I, and that that same provision can adapt the system of licensing in Part I to the new activity that is designated. If that is so, then I wonder whether what my noble friend is asking for is not already provided in the Bill. I wonder whether my noble friend on the Front Bench could indicate any other form of activity that is not covered by Clause 46.
Lord Campbell of Croy: Perhaps I could explain again to my noble friend Lord Drumalbyn that, as I said at the beginning, the purpose of my amendment is exploration. I am hoping that the Government can indicate whether there are other subjects which might be brought into this general system. That is why my wording is not of the best, as the noble Lord, Lord Ross, has pointed out. I was hoping that the Government might be able to explain what they have in mind for further activities, rather than trying to redraft the Bill myself.
The Earl of Mansfield: I am aware, as I am sure is the Committee, of the motivation behind the tabling
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of this amendment by my noble friend Lord Campbell of Croy. Of course, it is a probing rather than a pressing amendment. In fact, he is asking whether the Government think it is possible, and whether it is legally possible, for the procedures which are laid down in this Bill to be applied readily, if at all, to other activities for which Parliament has already defined a licensing procedure. This, of course, is a quite different point from the point which was produced by my noble friend Lord Drumalbyn, who quite correctly illustrated, by the use of Clause 46, the power of the Secretary of State in future to "suck in", if that is how I might describe it, future trading activities which it might become desirable to license. But that, of course, is a very different situation from bringing within the ambit of this Bill licensing procedures which have already been set up by statute. So there is a very considerable difference.
The short answer to my noble friend Lord Drumalbyn is: No; Clause 46 would not do for that purpose. If, by the application of this Bill, we were to cover other activities which are already regulated by statute, I think that Parliament would have to look very carefully before giving a Secretary of State, now or in the future, such wide powers to vary existing legislation. I am sure that that is so. Therefore, although I am very attracted by the arguments of my noble friend and, indeed, by those of the noble Lord, Lord Ross, I think we have to move slowly.
First, we have to lay down the correct procedures in this Bill; then we have to ensure that the activities which are set out in the Bill and which are contemplated in the Bill are coped with fairly and properly in the Bill. Only when those existing procedures, so to speak, are seen to be operating satisfactorily can we think of, as it were, dismantling existing licensing procedures where local authorities already have a role to play.
Of course, it does not quite end there, because some of the licensing procedures which I think my noble friend contemplates are not applied only, if at all, by local authorities. In other words, we do not want to involve authorities in areas where, for instance, the licensing is the responsibility of an independent body—and I could quote as an instance the Health and Safety Executive—or, indeed, a Government department. The complications, or the potential complications, do not end there. When my noble friend Lord Campbell instances bingo, cinemas and bookmakers, which he suggests could be brought within the system, I would point out that these activities are already regulated on a Great Britain basis and, therefore, I do not think that it would be appropriate for them to be taken in isolation in Scotland. I think that very careful consideration would be required before that was done.
Therefore, I think that the answer, in short, to my noble friend is that we must look at the workings of the procedures which we are setting up; we must take very close heed of any constitutional arguments which there may be before dismantling existing statutory structures; and, above all, we must ensure that the proposed licensing to be exercised by the local authorities is, in fact, a proper function for a local authority and not an independent board or quango. So I am grateful to my noble friend for tabling this amendment, and I can assure him that this is something which is,

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as it were, within the contemplation of the Government, and we shall be watching the situation very carefully.
Lord Ross of Marnock: The noble Earl will appreciate, of course, the confusion that will arise under the Bill, because in one area there will be licensing authorities of a different kind. There will be a licensing court, which is mainly for the local authority, to deal with liquor; there will be something called a licensing authority after we have passed this Bill, which must deal with the things which are either mandatory or which, by the optional clause, they will decide to license; then there may be another licensing authority to deal with the odds and ends that are in other legislation, which will be the responsibility of the local authority. We start with the idea of having a great new scheme of licensing, and we finish up with something that may prove to be rather confusing to the public mind. However, I am glad to think that the Government have not shut their mind to this and are prepared to look at it.
The Earl of Mansfield: Of course, the noble Lord, Lord Ross, is now on a different point. He is saying that committees, if you like, of a local authority will exercise different licensing functions according to the particular activity which is to be licensed. I appreciate that that can he confusing in the public mind, but I do not think it need be, because the sort of people who will be affected by the licence, whatever activity in which they either participate or by which they are affected, will be able, quite easily, to find their way, as it were, to the right committee.
Lord Campbell of Croy: My Lords, I am grateful to my noble friend for telling us the position as he sees it. I realised that there would probably be difficulties and problems. I recognise as a problem the fact that some of the licensing matters which are not to be included at present under this general licensing scheme are Great Britain subjects. But I think that that is a problem for the future which it may be possible to tackle.
Again, I applaud the rationalisation which is being carried out in this Bill. It will mean that Schedule 1, with whatever amendments are made to it in due course during its passage through Parliament, will bring together a number of activities under a single licensing system, and that surely must be welcome. It will certainly make life easier and lighten the tasks of district and island councils which, on the whole, are the authorities which will be involved in the licensing of these various activities. Any further grouping together of subjects for this general licensing system will help to reduce bureaucracy in general and, as I said earlier, should make it easier for the public to follow what is happening.
I would suggest that it should be an aim for Governments in the future, after this Bill has become law, to try to extend this general licensing system, as they can, to other activities if it proves to be acceptable and, as we hope, better than the previous separate licensing systems. Having given the Government the opportunity to state their position on this, I have no intention
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of pressing this point. I am glad to hear the Government's views. In this Bill they are carrying out an operation of rationalisation, which I am sure will be welcomed by all concerned in Scotland. I beg leave to withdraw this amendment.
Amendment, by leave, withdrawn.
3.40 p.m.
On Question, Whether Clause 1, as amended, shall stand part of the Bill?
Lord Ross of Marnock: Can the Minister tell me what would be the effect of dropping this clause from the Bill? Has it any meaning or substance at all?
The Earl of Mansfield: This Bill, and indeed any Bill, has to set the scene for what it is that the Bill is designed to do. In this particular instance—and I know that at Second Reading my noble friend Lord Selkirk was not over-enthused about it—what the draftsman has tried to do is to set the scene so far as Parts I and II and the first schedule to the Bill are concerned. What Clause 1 of the Bill does is to make provision for the introduction of a licensing system to cover certain activities which will require licensing, and that of course is contained in Part II of the Bill. If one did not have Clause 1 of the Bill it would not set the scene, and therefore nothing could happen in the desirable way in which we hope that it will.
Lord Campbell of Croy: It might help my noble friend if I raised one certain point at this early stage about the activities which, as the noble Lord, Lord Ross of Marnock, has pointed out, are dealt with in this short clause. Two of the activities are to be mandatory so far as licensing is concerned, and one of these is public entertainment. I suggest that clarification will be needed at some stage during the Bill, perhaps later in our proceedings, to indicate what "public entertainment" really covers, because there is some anxiety at the moment that it would extend to such functions as village fetes, or highland games, which charge an entrance fee. Normally, these are only one-day events.
I hope that the Minister will consider this point at an early stage. If he can make a statement, perhaps not now but later in our consideration of the Bill, we can then examine whether anything needs to be added to the Bill in order to make it clear that "public entertainment" does not cover the events that I have described.
Lord Ross of Marnock: I think that is a useful contribution. The noble Lord might have added activities in church halls and such areas where they depend on the funds raised for contributions, but of course that is probably much more apt later on. It is my contention that Clause 1 adds nothing at all to the Bill. If it sets the scene, I would ask any noble Lord who happens to have a copy of the Bill to read it. I would challenge him to be able to tell me what scene it is that is being set. If it is so necessary to do this in this Scottish Bill, and indeed to take about four clauses to set the scene, can the noble Earl tell me how in the English Local Government (Miscellaneous Provisions) Bill, which covers exactly the same point, they managed to do this in one clause?
The Earl of Mansfield: I have not got the English Bill in front of me, and if I had I would not attempt to construe it. The Scottish draftsmen, God bless them, take an entirely different view of their duties from the English draftsmen. I, for one, not being skilled in drafting so far as drafts of this kind are concerned —that is to say, public Bills—would not presume to say that they do not know their job.
There are different ways of setting a Bill up so that the various provisions of it come forth in an understandable and harmonious manner. If the noble Lord is saying that it is too long, which I understand that he is, then I suggest that he puts down an amendment for the next stage of the Bill setting out how he would like the Bill to start off in Clause 1. But as it is I cannot, I am afraid, without notice, go into a dissertation on the deficiencies of drafting as alleged in this Bill as opposed to the English Bill.
Lord Ross of Marnock: I do not expect the noble Earl to do that. There must be very few Bills for which we are handed a correction leaflet as we come in. There are corrections to Clauses 6, 17, 34, 41, 51, 90, 131 and Schedule 1. I spent quite a lot of time in respect of, I think, Clause 6 and actually put in an amendment about it, and then discovered that a whole line had been left out. We received the document only yesterday.
I do not think that this Bill adds very much to the credit of whoever did the drafting. Let us remember that they had a draft Bill a year ago, the drafting and structure of which is very different from the one before us, and which to my mind is much more clear than the one we are dealing with at the present time. I just want to draw attention to what I feel has been slipshod. It may be that everything was hurried. It is easier to do The Times crossword puzzle than to work out what some of these clauses mean—especially today, when the puzzle was quite easy.
I do not think that any Minister in the Scottish Office read this Bill before it was printed. I found at least five spelling errors, and in fact I started to put down an amendment in respect of one and then realised that it was an error and a letter had been missed out. Let us not be too happy about this. I hope that somebody will have a look at it, especially if we are going to take up the point that the noble Lord, Lord Campbell of Croy, made that other provisions could be brought in to generalise the licensing procedures to a greater degree and ensure that the Bill is drafted as well as possible.
I am not going to hold up the Committe in this respect, but it is not good. When I read the start of a Bill, which sets the scene, I want to know what it is about. In the second line of the English Bill we have the words "public entertainment". There would have been an ideal opening for the noble Lord, Lord Campbell of Croy, and for myself in view of all the things we want to be concerned about in public entertainment, but we have to go a long way in this Bill before we discover that you are going to license public entertainments. I think that the first mention of anything to be licensed is taxis and hire cars in Clause 10. Setting the scene! Confusing the scene, I call it. Let
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us do a little better the next time, but at the moment I shall let it go through.
Clause 1, as amended, agreed to.
Clause 2 [Licensing authorities]:
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 3:
Page 1, line 11, after ("Act") insert ("with the exception of section 10").
The noble Lord said: Here I seek to change the scene slightly. On page 1, line 9, it says, if anyone can understand it:
"For the administration of licensing in relation to the activities in connection with which licences are required under Part II of this Act there shall be a licensing authority for each district and islands area".
I suggest that after "Act" we insert "with the exception of section 10". Section 10 deals with the taxis and hire cars. I put that in there for the purpose of the next amendment which is to insert that there should be a regional licensing authority to deal with the licensing of taxis and cars, rather than limiting it as it is here to the district and islands area. I beg to move.
Viscount Thurso: We have not been granted a view into the mind of the noble Lord, Lord Ross, as to why he thinks that regions are the only fit local authorities to deal with the question of taxis. No doubt he will wish to make that clear when he comes to later amendments in his name, but at this stage I still believe that districts are perfectly adequate local authorities, as are island councils, to make provision for the licensing of taxis in their areas. Indeed, in many instances they are better authorities to have charge of the licensing of taxis because they are much more closely acquainted with local needs and demands and the different considerations which come before an authority which has to deal with the licensing of taxis. Therefore I cannot follow Lord Ross along his line of reasoning and thus cannot support him in the amendment.
The Earl of Cromartie: I want to join in on this one because I am thinking particularly of the Highland Region, which is a vast area. I do not think the region in that case is suitable for issuing these licences. It is done much better under the districts, for the reasons we have just heard. In the more concentrated regions there might be a case, but for a huge region like the Highland Region such a change is not on and I prefer to see it done by the districts.
Lord Stodart of Leaston: I drew the attention of your Lordships to this subject on Second Reading. It gave rise to an animated discussion when we examined it in our committee on the reform of local government and I think it was the only issue on which the two tiers retreated to their opposite corners and took up extremely vigorous stances. The districts do the licensing at the moment, and that was the starting point. "But", said the regions, "taxis are now virtually part of the public transport system. The police are interested in the licensing of taxis and their stands and we should get greater uniformity of fares if it were done through the regions". The consultative paper mentions the question of the uniformity of fares—a matter which concerned us slightly was what

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would happen when a taxi went out of its own district and into another—and suggests on page 29:
"The driver of a taxi who undertakes the hire of his taxi to a destination outwith the area in respect of which his taxi is licensed, where no fare was agreed before the hiring was effected, shall not charge a fare greater than that indicated on his taxi meter".
The Bill makes no reference to that—the point exercised my committee—in that the Bill only makes it possible for a district to specify a certain destination outside its area (obviously East Lothian can specify the fare to Turnhouse Airport or Waverley Station), but it is a matter of concern when one considers the large number of taxi journeys that must be made, say, out of Edinburgh into Musselburgh, which is only six miles away and is in the district of East Lothian, and one can think of other examples emanating from other cities.
My noble friend, in reply, mentioned the traffic commissioners and thought they might be of some help, but I think I am right in saying we were told that the traffic commissioners now have nothing to do with the fixing of fares. If so, that is ruled out as a solution. All the same, having, as I say, debated this matter at considerable length, what I think activated the majority of us was that we were most anxious not to have a dual responsibility—one set of licensing done by regions and another set done by districts—and it was that which caused us to come down in favour of the district, and I support the Government in what they propose.
Baroness Elliot of Harwood: I do not speak with great knowledge and experience of this subject because it never came up in the days when I was on my local county council. However, I have with me a letter from the Border Regional Council supporting what the noble Lord has just said. They believe it would be simpler and make for more equal licensing methods, including in relation to charges, if it was the wider area which controlled the licensing rather than the district only. It might be difficult in the Highland area but, on the whole, my feeling is that—bearing in mind that this is a public service and that the public travel widely on these occasions and can easily go outside the districts—it would be better if it were a wider area which was responsible for the licensing. I therefore support the view that the licensing authority for a public service of this kind should be on the widest basis and should be the region rather than the district.
3.58 p.m.
The Earl of Mansfield: I had hoped that the noble Lord, Lord Ross, would give us an insight into his reasons for tabling this series of amendments because as my noble friend Lord Stodart said, these are not easy matters and there are protagonists who are passionately disposed to their particular point of view. There are really two matters here: first, the actual licensing and, secondly, the question of fares. The amendment, as Lord Ross said, would have the effect of transferring responsibility for licensing control of taxis and hire cars from district councils to regional councils. One must first ask what evidence there is, if any, that the district and island councils, which
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presently control taxis and hire cars, are in some way failing to exercise proper control or are controlling taxis and hire cars in circumstances which are unsatisfactory and would justify the change which the noble Lord proposes by his amendments.
The district and island councils have been carrying out this function since 1975 and, so far as I know, the vast majority of people would say they have been carrying it out perfectly adequately. The Working Party on Civic Government recommended that district and island councils should be the appropriate licensing authority, and I believe there is a lot to be said for maintaining control, as it is now, at as local a level as possible. There is ample opportunity for non-statutory consultation between districts themselves, and this takes place in some cases—for instance, in Strathclyde. Of course difficulties can arise out of cross-boundary journeys, and therefore there is specific provision for liaison between district councils on the fixing of fares for cross-boundary journeys. One has only to look at Clause 15 to see how that is set out.
The question of which tier should be responsible for licensing of taxis and hire cars has been independently reviewed since the working party report. The committee of my noble friend Lord Stodart also inquired into the matter, as he mentioned, and the report of his committee stated that there had been wide support for this being a regional function. The report set out the arguments, but having considered them, and appreciating their significance, it seemed to the committee that it was inappropriate to separate taxi licensing and related matters from other licensing duties, and the committee said that the interests of regions can be met by adequate liaison arrangements at local level. Therefore my noble friend's committee recommended that responsibility for taxis remain with district and island councils.
That is the view with which the Government respectfully concur. We regard the main function of the licensing authority as being to ensure that proper vehicles and suitable people are employed in the taxi trade. We believe that wider issues of transport policy—and here I am taking up the point that my noble friend Lady Elliot of Harwood made—are much less relevant, at least so far as licensing of taxis and hire cars is concerned.
As I have said, in Clause 15 there is provision for cross-boundary journeys as between districts and there is freedom for non-statutory liaison and consultation with regions. The special position of the region as highway authority has been specifically recognised in Clause 18, which requires the consent of the highway authority before a taxi stance can be sited and related site marking carried out on any highway.
Two major committees, or three, if we count the Royal Commission on Local Government, have all looked at this matter in the last few years and have all come to the view that licensing of this nature should be at district level. In addition, I should observe that the Scottish branch of the Taxi Federation also strongly prefers the status quo. It fears that alignment of the function with the regional authorities, which also have public transport responsibilities, could result in a conflict of interest in such matters as approving new licences and fixing taxi fares.
So in the light of very considerable opinion from widely differing viewpoints, all agreeing that the matter

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should be left as it is, I fear that I do not have very much sympathy for the amendments.
Lord Drumalbyn: Although it is done at present, is it absolutely essential that the same authority should undertake both the licensing and the fixing of the fares?
The Earl of Mansfield: I think that it really goes together. One of the matters that a licensing authority has to consider is the kind of remuneration that the taxi driver, the holder of the licence, should receive, bearing in mind the conditions in which he operates his vehicle. It would lead to bureaucracy and great complication if the role were split.
Lord Ross of Marnock: I think it is true to say that we come to the question of fares later, in a separate clause. The first amendment that I moved was purely a paving amendment for the second one, and I am very glad that everyone understood that what was intended was to give power to the region in respect of this particular licensing. I wanted to hear the arguments. I think it important that, before reaching any decision, your Lordships should know both that there are arguments and what they are. I can appreciate the position about the Highlands, but we must remember that the Acts with which we are here concerned—the Burgh Police Acts—dealt with populous places. They were concerned less with the scattered areas than with the populous areas. Actually there is no obligation on any authority regarding taxi licences at all. Was I right in thinking that the Minister said something to the effect that the authorities already license hire cars? Do they?
The Earl of Mansfield: They can do, as far as I know.
Lord Ross of Marnock: I am not asking for a reply merely as far as the Minister knows. I should like him to find out whether any authority licenses hire cars at present, and whether this is something new, perhaps brought in after the working party suggested that since taxis have to be licensed, hire cars should be licensed, too. Let us get the thing clear.
The argument for the regions relates of course to the most populous areas, the cities. Anyone wishing to go to Glasgow airport from the city of Glasgow will discover that Glasgow airport is not in fact in Glasgow. It is in another district altogether. The situation is even more confusing when one arrives at the airport wishing to go to either Paisley or Glasgow. Taxis are lined up, but the drivers are not too pleased if one wants to go only to Paisley. They are looking forward to undertaking the kind of journey that the noble Lord would probably prefer, into the city. But I only want to go to Paisley. I do not now know what the position is, because I have stopped travelling by air since the fare rose to—what is it? —about £116 return, when as a geriatric I can travel by train for half the price. But the fact remains that there are two groups of taxi cabs, one group licensed in Glasgow and the other licensed in the Paisley area.
I know that there are very considerable objections regarding the obligations involved. A taxi licensed in
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Glasgow that takes a passenger to Paisley can lift another passenger for the return journey. The same thing happens regarding taxis licensed in the other area. This kind of confusion applies elsewhere. It applies in most of our cities, and that is where there are concentrations of taxis.
The most telling point made by the Minister was that the Taxi Federation itself is satisfied with the position regarding districts. But let no one think that the question is so open and shut. There is a very considerable argument that the licensing should be done in the way that I propose. It will be appreciated that the traffic commissioners come into the matter. If the Taxi Federation is not satisfied with decisions of the licensing authority on fares, the appeal is to the traffic commissioners. That is covered in the Bill in another clause, which we shall deal with later.
I accept that the arguments might well be evenly divided, but let us not forget that there could be very considerable difficulties for the person hiring the taxi. One might arrive in Glasgow wanting to go to Ayr races. One would have to go through three different areas to get there, and there is no fare structure; one has to strike a bargain. The power is there of course, but it is not necessarily laid down. The same is true in regard to the overseas airport, Prestwick. It is in an area different from Glasgow, where the taxi would be registered.
There are considerable difficulties that can lead to confusion over fares for both the passengers and the taxi owners. I would have welcomed consideration of this question from people who have had experience of the situation, rather than those whose experience has been of the wide-open spaces, where perhaps the present arrangement is more justifiable, bearing in mind that in the Highlands the districts are fairly extensive. It is not my intention to press the amendment, but if the Minister wants to say something else I will allow him to do so before I withdraw the amendment.
The Earl of Mansfield: I am much obliged to the noble Lord, who, in his charming way, asked me to obtain a little information about hire cars when he spoke of his habits at Glasgow Airport. I am happy to tell him that some authorities already license hire cars, as I said. They include Glasgow, Monkton and Dundee. So do Renfrew District, actually, whose area includes Glasgow Airport. But I shall be happy to deal with the fares part of this matter when we come to Clause 15.
Lord Ross of Marnock: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 4 and 5 not moved.]
4.11 p.m.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 6:
Page 2, line 3, leave out subsection (3).
The noble Lord said: This is an amendment to leave out subsection (3). I just want to know why this subsection is here, because here we have the provision, in relation to the authority which itself sets up the licensing authority:

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"a district or islands council shall not be exempt from any requirement to have a licence or any other obligation under this Part or Part II of this Act and a licensing authority shall have power to entertain and dispose of an application by a district or islands council for a licence or in respect of a licence held by them".
I am perfectly sure that the noble and learned Lord, Lord Wilson of Langside, will be up in arms at the thought that a local authority shall be empowered to consider its own licence. Is this right? Is this fair? We should remember what we felt about the parental rights in respect of the Education Bill that we had before us fairly recently; namely, that we must not have the same people deciding in the first instance and then doing the same thing in respect of the appeal. Here we have a local authority sitting on appeal in respect of its own licences and deciding whether it will grant them, change them or do anything else. Perhaps we should have a little more justification for this subsection before we pass it. I beg to move.
The Earl of Mansfield: I think the noble Lord thought he was going to light a fiery cross on the Social Democratic Benches, but it seems to have spluttered out. He lit the blue touchpaper, but nothing has happened. Subsection (3) of Clause 2 is in no way meant to express, or imply even, that there is a need to control local authority activities; and there is a well-established convention that local authorities have to meet the same statutory obligations as the private sector does in some other licensing activities. I can illustrate that by adducing the examples of liquor licensing and in relation to planning. In other words, a local authority has to give itself planning permission in the right instance.
So I think one would have to think quite carefully before exempting a local authority from licensing procedures, which would in fact seem to discriminate in favour of it. That is the explanation of subsection (3). If the noble Lord wants me to go into it in greater detail, of course I can, but perhaps that explanation will suffice.
Lord Ross of Marnock: The noble Earl has not got to satisfy me; he has to satisfy the whole Committee as to what we are talking about. I wanted from him instances of cases where local authorities will have to apply for licences. I think the fairly obvious one is public entertainments in respect of premises—town halls and such places. I expected that he would be able to give me and the world information in respect of all these instances where a local authority has to sit in judgment upon itself. Of course, I really wanted to get the views of the "Shirley/David Play Group" about the justice of this, in view of their past relationship on this kind of thing happening, but nothing has been forthcoming.
Lord Wilson of Langside: My reason for not responding to the invitation of the noble Lord, Lord Ross, to metaphorical fisticuffs is that I have much more consideration for the value of your Lordships' time than I sometimes feel the noble Lord, Lord Ross of Marnock, has. To me, the two things are entirely different. I had really forgotten about this earlier
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event to which the noble Lord, Lord Ross of Marnock, has referred. I have been searching my memory, but I have to add a better recollection to my recognition of the many qualities of the noble Lord, Lord Ross of Marnock, who, of course, I have known since long before either of us were Members of your Lordships' House or imagined that either of us were ever likely to be Members of your Lordships' House. I understand and listen with fascination to every word he says. I should not like him to think at any stage that if I do not respond to these challenges it is because I am in any sense afraid of them or am concerned with anything except needlessly taking up the time of your Lordships.
The Earl of Mansfield: Far be it from me to tread on the other side of the Chamber. Where I think the noble and learned Lord, Lord Wilson of Langside, might have come to my aid (as a fellow lawyer, even if in a different jurisdiction) is when the noble Lord, Lord Ross, produced his point about the local authority in effect sitting in judgment on itself—giving itself liquor licences and planning permission in a way which perhaps would not commend itself to the local citizens who might be adversely affected. But there is, of course, the appeal procedure to the sheriff. That, I think, would have been an excellent answer for the noble and learned Lord to produce against his erstwhile friend.
To be serious, I agree to this extent with the noble Lord, Lord Ross. It is in the arena of public entertainment that I imagine the local authorities will wish, as it were, to undertake activities for which licences will be needed, and I have no doubt that they will, as they already do, consider the thing in a proper and judicial manner. Furthermore, as I have said, there is a right of local people to object if they feel that a particular public entertainment activity on local authority premises may have adverse effects on their peace or enjoyment, or even amenity, and that danger cannot be regulated by ordinary planning procedures. So on this basis I hope the noble Lord, Lord Ross, will perhaps see fit to withdraw his amendment.
Lord Ross of Marnock: I shall waste no more words on it. I beg leave to withdraw this amendment.
Amendment, by leave, withdrawn.
Clause 2 agreed to.
Clause 3 [Discharge of functions of licensing authorities:]
The Chairman of Committees (Lord Aberdare): I have to point out that if Amendment No. 7 is agreed to, I cannot call Amendment No. 8.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 7:
Page 2, line 10, leave out from ("authority") to end of line 13 and insert—
("(a) shall hold a meeting in January, March, June and October of each year beginning with a date in each month fixed by the authority at least 8 weeks prior to the meeting;
(b) may hold such other meetings as appear to the authority to be appropriate.")
The noble Lord said: I shall be delighted to lose Amendment No. 8. No doubt the Minister of State

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will be familiar with the words in my amendment, as will every other Scottish Member who has studied this Bill very closely, because they come from the proposals for a code of civic government in Scotland produced by the Government last year. It is suggested that we should include these words in respect of the sittings of the new licensing authorities. The advantage of this is that people applying for a licence will know (as they do with other committees or licensing courts) exactly when their application will be considered.
I think it is better to have these what we may call statutory meetings of the authorities spaced as they are in the amendment and fixed by the authority at least eight weeks prior to the actual day so that everyone will know where they are and even the members of the authority will be able to mark their diaries well in advance in respect of this. I think that it is desirable that you should know well in advance, because, as you read this Bill, you can apply for a charitable collection licence to the licensing authority two years before you want it.
Therefore, since they are very spacious in their ideas of application timings, it is better to get something fixed and that these statutory meetings should be in January, March, June and October. There is power in subsection (b) to hold,
"such other meetings as appear to the authority to be appropriate".
The draftsmanship is impeccable; it came from the Scottish Office at a time when they were not pressed in relation to introducing a Bill and it will be found in the proposals for a code of civic government in Scotland. I beg to move.
Viscount Thurso: While having some sympathy with the noble Lord, Lord Ross of Marnock, in desiring that these authorities should hold regular meetings, I am not sure that I am in agreement with him that it is reasonable to specify the actual months in which these meetings shall take place. It seems to me a little unreasonable to specify January, March, June and October if these particular months do not suit the business or the conditions of the district in which licensing is taking place. I would support the noble Lord if he redrafted the amendment to make it a minimum number of meetings to be held; but it is difficult to support him when the months are so specified.
The Earl of Mansfield: The noble Lord, Lord Ross, as he says, seeks in effect to go back and reinstate the provisions of Clause 3 of the consultation document. Of course, as he will recall, the procedure in Clause 3 was modelled on the provisions of the liquor licensing legislation of 1976, which I think the noble Lord introduced—
Lord Ross of Marnock: No, you are wrong again.
The Earl of Mansfield: —but did not see it end. Perhaps he did not even introduce it. I cannot remember quite when he fell from grace. Be that as it may, we consulted the local authorities on the consultation document and on Clause 3. I am bound to say that the local authorities were virtually unanimous in saying that they found the provisions in Part I of the consultation document much too cumbersome.
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They objected to the requirements—pace the noble Viscount, Lord Thurso—for fixed quarterly meetings, either with dates or at all; and they objected to the other timetable requirements about which the noble Lord, Lord Ross, has put down later amendments which we shall come to in due course. They felt that this was an unnecessary institutionalisation of a structure which was perfectly adequately dealt with under present procedures by ordinary meetings of the local authority. This view was not only stongly but widely expressed; and as a result the Government had to reconsider the whole of the proposed Part I of the consultation document. The results are to be seen in the Bill.
Having agreed with the local authorities in what they said, I think the Government were persuaded that the flexible provisions of Part I, as it now is, are in the best interests of the local authorities not only from the point of view of administrative convenience but also from the point of view of the applicants in various trades who, in practice, under the previous provisions, might have had to wait until the next quarterly meeting before an application could be considered. As the Bill is drafted, the provisions enable the local authority to deal with licensing matters in the same way as with other issues which can be of vital consequence to the individual—and planning is an example.
We hope that what we have done is to meet the wishes of the local authority that the new arrangements shall be more flexible than in the White Paper and we believe that—and I respectfully concur with that thought still—while the provisions of the Licensing Act 1976, which the noble Lord, Lord Ross, said he did not introduce, might have been appropriate for dealing with such matters as public entertainment licences, that is far too ponderous a procedure to deal with individual activities such as taxis or car hire operators or street trading licences. If one looks at it from the standpoint of reality, one hopes that these kinds of applications will be dealt with in a brisk fashion within the five- or six-week cycle of local authority committee meetings.
In the face of what would be against the wishes of the convention and, indeed, against the philosophy of this Bill—which is to simplify procedures rather than to ossify ancient licensing procedures from long ago—I hope that the noble Lord, on reflection, will see fit to withdraw his amendment.
Lord Ross of Marnock: The purpose of the amendment was to have the Government explain why they departed from what was laid down in their own proposals under the draft Bill. I am quite satisfied that it may be so. But let the noble Earl appreciate that, where you have the three months, it does not add very much in terms of the expedition of the licence if they have to wait for about three months for it. It might be dealt with even more speedily if we had statutory meetings of the council. Many councils that I know would prefer to have statutory meetings where they know exactly when these things will come up.
The applicants will now be in a position where they will not know; and all that they will know is that it will come up within the next three months. That is not always entirely satisfactory. But it may be, if the noble Earl says so, that this is the way the local authorities want it—and who am I to stand in their way?

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That is usually something that I leave to the present Government where they think that, if local governments wants something, there must be something wrong with the request. But this time they have seen the light so far as that is concerned. I would propose to withdraw the amendment.
Amendment, by leave, withdrawn.
4.29 p.m.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 8:
Page 2. line 11, leave out ("3") and insert ("2").
The noble Lord said: This is a simple amendment to change three months to two months, so there will be more speedy consideration of the applications as they come forward. I beg to move.
The Earl of Mansfield: I have already mentioned the kind of cycle of local authority committee meetings which are likely to occur in order to hear licensing applications. So in effect I agree with the noble Lord when he says that in the great majority of cases a licensing authority should be able to consider and dispose of an application within three months. One has to bear in mind that what Clause 3 lays down is not a minimum period, nor even a recommended period, but a maximum. I think that a certain latitude, room for manoeuvre, has to be allowed tol ocal authorities.
I have already remarked on the cycle of local authority meetings. There are times of the year when no committee meetings take place; in the summer, for instance. We have to allow for that time of the year. We also have to realise and allow for the possible consultation which is imposed by statutory requirement as between the local authority, the chief constable and the fire authorities. So I do not believe that an unqualified maximum of two months would be sufficient.
If I may give an example: an application might be made at the end of June for a public entertainments licence which might require extensive consultation under the Act with both the chief constable and the fire authorities. Many authorities have few, if any, meetings in the latter half of July and August. It would be unlikely in such an instance that all the comments of the fire and police authorities could be on hand to allow full consideration of all the factors by the licensing authority before it went into its summer recess as it were, in mid-July.
The other drawback—if that is the right word—to the noble Lord's amendment is that, even if we accepted it, even if it was written into the Bill, I doubt whether it would achieve his object of securing faster decision-making than is provided for under Clause 3 as it is presently drafted. If there was a requirement to consider the matter within two months, the reaction of many local authorities in certain instances would be to put the matter formally before a committee within the two months' period and then, again formally, without discussion, to continue the application, to adjourn it, if you like, to a later meeting when the requisite information is available. I doubt whether the noble Lord's intention would be achieved by his amendment.
I appreciate the desire for speed regarding the decisions of local authorities on really mundane
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matters, particularly as they affect the livelihood of ordinary people. Nevertheless, I think that we have to be realistic and in a statutory period such as is set out we must provide not only for the norm but also for the number of exceptions which may be expected to occur. There is every justification for a three months' period before final consideration.
This desire on the part of the Government for reasonable speediness was the reason why there were imported into the Bill after the specified period of three months the words at the end of subsection (1) at the end of Clause 3:
"reach a final decision upon it without unreasonable delay".
This is an innovation—as indeed both these provisions are—as compared with the consultation document. They go further than the working party recommended. So we have, as it were, made a statutory expression in the subsection concerning the speed of local authorities in dealing with these applications.
I hope therefore that I have convinced the noble Lord that, while there is everything to be said for allowing what I think is a reasonable period—that is to say, three months—for a local authority to get the necessary opinions which it may have to get, and deal with the matter at all times of the year, we have in fact made it a statutory provision of subsection (1) that there should not be unreasonable delay. In those circumstances, I hope that the noble Lord might see fit to withdraw his amendment.
The Earl of Selkirk: On a matter of clarification, the top line on page 2 says:
"The licensing authority shall he the district".
I do not suppose he means that that will be the district council. This will be a committee, I take it, set up for the purpose of licensing by the district council. This would mean the numbers would not be so great and meetings could presumably be arranged at comparatively short notice and would not necessarily depend on the full council meetings taking place, whatever the period may be.
The Earl of Mansfield; I am obliged to my noble friend. That is perfectly true. Regarding the licensing authority, although it will be a matter for the district council or islands council to decide, in all likelihood it will be a committee of the council. Therefore, it will be able to adopt flexible methods of working as its own particular local circumstances dictate.
Lord Ross of Marnock: It will be the council, in other words. It is up to the council to decide how they exercise their responsibilities and how they administer this function by setting up a committee or otherwise. We cannot give any direct answer to that because the words are "the council" and in the schedule there is no laying down of how many members shall be there, what shall be a quorum, who will be the chairman or anything like that. There is no formalisation of the actual committee or authority that will be set up. I can appreciate what the Minister says. My desire is to get these matters dealt with as quickly as possible. However, he obviously appreciates that we are dealing with the normal and with the abnormal.
Within the ambit of the licensing authority you go from window cleaners, public entertainers, scrap metal

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merchants and itinerant metal merchants. So it is very difficult to put any figure at all on this which will guarantee speed because some licensing matters may demand very much longer than others. If you must put in anything at all it would be far better to have a reasonable time of two months and then give power to adjourn if something requires longer. If three months is put in then that will determine the way the committee look at it and how long they have before they make a decision. With all due respect, the Minister says we have the expression:
"reach a final decision upon it without unreasonable delay".
Frankly, does that mean anything at all? It is a pious hope. There is no guarantee. There is no way that you are going to be able to get any certainty from that. This is one of the difficulties about putting this in. It certainly shows that the Government and everybody else want to get these matters dealt with without any unreasonable delay but there is no penalty in respect of any hold-up.
I want to get the noble Earl to justify what he is putting in the Bill. Quite frankly, there is not the same justification for this three months and the pious expression of no unreasonable delay as against what was put forward much earlier on. I do not think that it is worth arguing about; we can only hope that this w ill work.
My fear is that we have this idea of this great generalised new licensing authority, but it is not going to be that; it is going to be dozens of different committees. We are not going to get the evenness and speed of treatment which we are all hoping for because of the very nature of the job that we are placing upon them. Indeed, when we come to later clauses we will see that. The Secretary of State is going to be empowered to step in to lay down different classifications and modifications of the licensing rules in respect of different classes of licence that are applied for. Having said that, I beg leave to withdraw the amendment and I hope the Government are justified in placing their faith upon these words, "without unreasonable delay".
Amendment, by leave, withdrawn.
On Question, Whether Clause 3 shall stand part of the Bill?
Lord Stodart of Leaston: May I ask my noble friend one small question relating to subsection (2) of Clause 3? This deals with the point raised by my noble friend Lord Selkirk. The point I want to raise is that I think there is an amendment to Section 56 of the 1973 local government Act which is down for consideration in connection with a Bill which has just started its progress in another place. May I ask my noble friend whether the reference to the Local Government (Scotland) Act here would take note of the amendment to that if it were carried?
The Earl of Mansfield: Yes, my noble friend is perfectly right. What subsection (2) of Clause 3 allows a council to do, as a licensing authority, is to delegate the decision-taking in a way which commends itself to the council. In other words, they can either sit as a council or they can set up a committee or subcommittees, or they can even delegate the authority to
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officials in appropriate instances. So there is complete flexibility. Clause 56 is to be amended in the Local Government and Planning (Scotland) Bill and it will therefore amend this subsection in the same way as Section 56 wil be affected.
Clause 3 agreed to.
Clause 4 [Further provisions as to licensing]:
On Question, Whether Clause 4 shall stand part of the Bill?
Lord Ross of Marnock: I would hope that we would take Schedule 1 before Clause 4, although that was not the original intention, because I strongly object to passing a schedule that we have not even examined. That is what we should be doing if we took Clause 4 just now. I think we should do far better to look at the schedule and make all the changes there and then say it will take effect, rather than the other way round.
The Earl of Mansfield: There has been an Instruction to the Committee, and under that Instruction we are to examine the first schedule after Clause 3; so suggest that we go on now to Amendment No. 9.
Lord Ross of Marnock: With regard to Amendment No. 9, which I propose to move, we now dash away from the main Bill and go to the schedule, which is on page 82. The first amendment to this very, very long schedule is—
The Earl of Mansfield: I am sorry to interrupt the noble Lord: this is entirely through my forgetfulness. The Lord Chairman is perfectly right: we were going to consider Clauses 1 to 4 and then Schedule 1. I apologise to the Committee.
Lord Ross of Marnock: What does the Minister propose we do now?
The Earl of Mansfield: I propose that the Lord Chairman should put the Question, That Clause 4 stand part, to the Committee.
Lord Ross of Marnock: This is the point I was on. I thought it was very unwise of the Committee to pass the schedule—because that is virtually what we do in Clause 4—and then go on to the schedule and seek to amend it. It is as much my fault as anyone else's, because I ought to have raised this when we passed the procedure motion to take Clauses 1 to 4. I should think it would be much more sensible to take Clauses 1 to 3, then do the schedule, and then say that it shall have effect. But I am in the hands of the Lord Chairman as to what is the right thing to do.
The Deputy Chairman of Committees (Lord MaybrayKing): I am advised that we must proceed according to the Instruction, and the Instruction was that Clause 4 should be proceeded with before we came to Schedule I, so I will now put the Question, Whether Clause 4 shall stand part of the Bill?
Lord Ross of Marnock: Before we do that, will the Minister tell us what the effect of Clause 4 is?
The Earl of Mansfield: The effect of Clause 4 is to make provision for Schedule I to have effect. Then we go on, as I understand it, to consider the schedule. If I may say so, this is really the normal way of doing things—to consider what I may call the enabling clause and then to consider the schedule which it sets up.
Lord Ross of Marnock: Very well.
Clause 4 agreed to.
Schedule 1 [Licensing—Further provisions as to the general system]:
4.47 p.m.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 9:
Page 82, line 9, after ("agent;") insert?—
("( ) lodged with the authority not later than 5 weeks before the first day of the meeting of the authority at which the application is to be considered; ")
The noble Lord said: This amendment seeks to ensure that applications to be lodged for the grant or renewal of licences, apart from being made in writing and signed by the applicant, should be lodged with the authority not later than five weeks before the first day of the meeting of the authority at which the application is to be considered. Of course this is to give the authority time in respect of any information it wants to acquire, either from the applicant or from some other source. I beg to move.
The Earl of Mansfield: We had our debate on the flexibility or otherwise of the licensing authority, and I explained that, following the publication of the White Paper, it was the Government's wish to have a more flexible and indeed a simpler procedure. We decided there was no reason why the functions of the authority under this Bill should be any different from the normal committee meetings arranged as and when business requires them.
The noble Lord's amendment really does not make sense now, because even if it were put into the Bill it would be quite impossible to give notice five weeks before the first day of a meeting which would not have been fixed at the time when the matter was lodged; so that cannot happen, and I hope that the noble Lord realises it. But even if it could, it is still not desirable.
Lord Ross of Marnock: It could happen; it depends on how the council or the new authority conduct their business. I have another amendment later which might be helpful to the applicant—and it is the applicant I am considering as well as the council: we should give them some information as to when things are going to be considered. I appreciate the difficulty of time, and instead of "five weeks" we could have said "two weeks" or "three weeks" What I want is to get licences considered by the authority more expeditiously. We want to be as helpful as possible, certainly in respect of the form, so that people know exactly what is required of them. But I am not fussed about this one and so I am prepared to withdraw it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 10:
Page 82, line 16, leave out ("a") and insert ("an individual").
The noble Lord said: This amendment is put down because my curiosity is aroused. I am sure that your Lordships will be equally concerned, having read that the line I propose to change is:
"where the applicant is not a natural person".
The mind boggles! I suppose that it has some meaning in Scottish law, and I am sure that the noble Earl, Lord Selkirk, will rise to the defence of the draftsman. But I warn him that there is a trap here, because we have the phrase elsewhere in this Bill and it is not a question of not being a natural person. What I want to put in is for the purpose of keeping it clear throughout. If you are going to use the correct phrase once, then let us use it right through.
If my amendment, to include before the word "natural" the word "individual", is not accepted, then I shall need to move another amendment later to leave out the word "individual", because the phrase "an individual natural person" is used elsewhere. In my simplicity, I thought that one of them must be right and one of them must be wrong, and that is the reason why I have put down this amendment. So I beg to move to leave out the word "a" and insert "an individual", so that the line will read:
"where the applicant is not an individual natural person".
The Earl of Mansfield: This is a titillating phrase, and I want to emphasise that I am speaking in legal or drafting terms. By definition, a natural person is an individual human being. There are no other kinds of natural persons. All other persons are of a non-natural kind; for example, companies, local authorities and, to some extent, partnerships. Since there are no kinds of natural persons apart from individual human beings, it is unnecessary to specify that a natural person is also an individual. To do so, indeed, might suggest that there are kinds of natural persons other than individuals. The Licensing (Scotland) Act 1976 speaks of "an individual natural person", but although the licensing system in this Bill is based on the scheme of the 1976 Act, it does not follow it slavishly and the draftsman departed from the 1976 Act style where he saw fit, which was in this paragraph. So I hope that the noble Lord will accept that explanation on behalf of the draftsman.
Lord Ross of Marnock: I am delighted. Of course, the draftsmen have changed their minds since last year, because the phrase "an individual natural person" was in the draft Bill. I should not be at all surprised, as we go through this Bill, if we find that it is also here. It depends on the draftsman's mood as to whether it is "a natural person" or "an individual natural person". I am not going to quarrel, but have I a promise from the Minister of State that if I find the phrase "an individual natural person" later on, he will then remove the word "individual"?
The Earl of Mansfield: I am not normally a betting man but, if the noble Lord turns to Clause 51 (4), I am not sure that he will not hit the jackpot. But be that as it may, the purpose of this is, of course, to distinguish between individuals and corporations. That is the serious part of this. That is why the draftsman has adopted the style that he has.
Lord Ross of Marnock: Yes, but the noble Earl has not answered my question.
The Earl of Mansfield: I think the question was—
Lord Ross of Marnock: I know it is there. I have got it marked in Clause 51 (4). The noble Earl surely does not think that something so obvious as this would escape a teacher's eye. I noticed that the draftsmen used the phrase "a natural person" first, and then, later on, "an individual natural person". We have had the Minister getting up and explaining why they dropped the word "individual". I would rather he did it now. When we come to Clause 51, he will need to explain why they replaced the word "individual". Or has he already promised? Maybe I am a little bit dense on a Thursday afternoon. But later on, when we discuss amendments to Clause 51, are we going to take out the word "individual"?
The Earl of Mansfield: I must not keep the noble Lord in suspense. It is my intention to amend that subsection when we come to it.
Lord Ross of Marnock: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Ross of Marnock Lord Ross of Marnock moved Amendments Nos. 11 and 12:
Page 82, line 23, leave out ("and")
line 24, leave out from first ("information") to ("as") in line 25.
The noble Lord said: Sub-paragraph (v) of paragraph 1(c) reads:
"such other information (which may include information in the form of plans) as the authority may reasonably require".
These words are not really necessary and I suggest that we take them out, because the implication is that we may include plans or may not include them. I suggest that this sub-paragraph should read:
"such other information as the authority may reasonably require",
without this specification about plans, which does not mean very much anyway. I beg to move.
The Earl of Mansfield: I am by no means hard and fixed in my approach to this amendment. May I just explain to the Committee that the words which the noble Lord seeks to delete were included for illustrative purposes, and to make it clear that information could be required in a form other than a bald statement of facts or figures. An illustration which comes to mind is the case of a boat hirer. Plans of his boats could be required, so that the fire authorities could make up their minds as to the necessary precautions to be taken. Having said that, I confess that not very much would be lost by removing the words; they did not appear in the consultation document. If, on reflection, the noble Lord wished to press his amendments I would not seek to stop him.
Lord Ross of Marnock: I think it would be sensible to have these words out. The local authority would not be restricted in seeking or getting this information. The words have little relevance to many of the kinds of
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applications that are going to be received. If a person wants a public entertainment licence for a hall, a licence for a taxi or a licence for something else, he will be told the nature of the information that is required. I do not think that these words add anything. They could confuse somebody, such as someone who was applying for a window cleaner's licence, if he read:
"which may include information in the form of plans".
It is applicable only in particular cases, and the power to require the requisite information is far better stated in the general form,
"such other information as the authority may reasonably require".
So I hope that the Minister will accept the amendments. If he suddenly discovers that we are changing the world too quickly by making these amendments, he has all the other stages, both here and in another place, in which to retract, and he can cane me as much as he likes for having misled him in suggesting that these amendments should go forward.
On Question, amendments agreed to.
5 p.m.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 13:
Page 82, line 26, at end insert—
("and
(vi) the date of the meeting of the licensing authority at which the application is to be considered.").
The noble Lord said: This amendment is designed to give some information to the person who is making an application. If a form is to be filled up it should state the date when the application is likely to be heard. It is a matter of guidance to the applicant. It would also be a matter of guidance to those who have an interest in it from the point of view of making an objection so that they will know exactly how long they have in order to forward their objection to the local authority. It may be that the Minister of State will say that they have not thought about whether the application will have to be made on a particular form, but it will virtually be required to be. The Minister of State may agree with me that that kind of information would be helpful all round. I beg to move.
The Earl of Mansfield: To a very large extent we considered the principle of this amendment when we discussed Amendment No. 11—and more especially when we discussed the suggestion made by the noble Lord, Lord Ross of Marnock, that there should be fixed quarterly meetings of the licensing authority. Outside that sort of framework—that is, fixed quarterly meetings, or whatever the fixed period might be—it seems to me that this amendment makes relatively little sense.
Bearing in mind that paragraph 1 of the schedule lays down the procedure for an application to a licensing authority, the applicant cannot put in the date of the meeting of the licensing authority at which the application is to be considered unless first it has been decided at the time the application goes in and unless, secondly, the applicant knows the date. I have already said twice now to the Committee that the whole purpose of this part of the Bill is to make the procedures as flexible as possible.
So far as a licensing authority is concerned, the Committee will recollect that in Clause 3 we have the

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three months' limit. Bearing Clause 3 in mind, I cannot see that there is any useful purpose to be served by requiring a date for consideration of an application to be put on the application, which in effect means that the licensing authority would have to fix its meeting very far ahead indeed in order that this could be done.
There are factors which are outside the control of the licensing authority—consultation with the fire authorities or with the police. And perhaps there may have to be further discussions with the applicant. It would be quite impossible, or certainly very difficult, for the applicant to predict the date of the next meeting at the time he came to complete his application form. Therefore, I should have thought that this is not only unnecessary but undesirable.
In passing and more or less in parenthesis, the noble Lord said that he did not know what form the application form, if I may so call it, would take. May I tell him that we are hoping and, indeed, expecting the convention to encourage authorities to get together and devise a standard form which everybody will conic to expect and understand. But that is something which we must leave to the convention.
Lord Ross of Marnock: I fully appreciate the difficulties which have arisen because of the rejection of what was first thought of by the working party: to have, as of right, statutory meetings. I am concerned about the fact that this application will go not only to the authority. In respect of premises it may go to the people who live next door, or to the people living above them, or to the people sharing the same building. All the information in the application has got to be given to them. I am sure that the one thing they will want to know is how long they have got in order to forward their objections either to the person who is applying or to the authority. If they do not have any idea about the time when the meeting will be held, that may be ruled out to be out of time. Or if they say that they are going to send in an objection and ask that there should be a waiting period until it has been formalised, there may be a considerable hold-up in the consideration of the application for the licence.
This is fraught with difficulties. While I am pleased to hear that there will be a standardised form, it is going to be a peculiar form if it is standardised to suit all the varying kinds of licences that there will be under this Bill, quite apart from the ones which were mentioned by the noble Lord, Lord Campbell of Croy, which they would have liked to include. I appreciate the difficulties, but by leaving the date of the meeting entirely to the local authority the difficulties will be of the Government's own making. However, there is no point in pursuing the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.8 p.m.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 14:
Page 82, line 29, after ("and") insert ("where appropriate to").
The noble Lord said: There are quite a few amendments of this kind on the Marshalled List. I do not think there is any need to make it obligatory to send
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a copy of the application to the fire authority if it does not concern them. If there is an application for a window cleaner's licence, does the fire authority have to know about that? Or do they have to know about an application for many of the other licences which are going to be included: the scrap dealer's licence, the second-hand dealer's licence, the metal dealer's licence. The fire authority do not need to know anything about those. Therefore the appropriate way to deal with the matter is to insert the words, "where appropriate to" before "the fire authority".
If the Minister of State is worried about this, may I ask him to read through the Bill and the schedule. He will find complete justification for it by the use of similar words elsewhere, where it is appreciated that the fire authority may not necessarily have to receive information about an application. If they do not have to receive information, it should not be made obligatory upon somebody to send it to them. This is a very sensible amendment, therefore, and I am perfectly sure that it is one which will be accepted by the Government. I beg to move.
The Earl of Mansfield: I have considerable sympathy with the noble Lord's perfectly laudable desire to reduce paper work, and work of any kind where it is not necessary. The noble Lord has no doubt observed that in the draft of the Bill the only applications automatically forwarded to the fire authority are those in respect of an activity involving premises. I have no doubt that the noble Lord wanted to introduce a somewhat similar limitation on the duty of the licensing authority, providing that they are required to forward licence applications to the fire authority only where they consider it to be appropriate.
The drafting of this sub-paragraph was considered at some length, and, on balance, it was decided that all applications should be forwarded to the fire authority, because there may be cases in which specialised knowledge found only among fire authority staff is needed to judge whether the proposed activity might constitute a fire risk and thus necessitate consideration by the fire authority. Having considered the fat of the noble Lord's amendment put down on the Marshalled List, I am bound to agree with him that, where for instance, the proposed activity relates to a window cleaner's licence, it may seem wholly unreasonable to forward that sort of application to the fire authority.
The trouble with agreeing to the noble Lord's amendment is that it does not really give licensing authorities much help or guidance as to the criteria they should adopt, and in an important matter such as fire prevention it is extremely important that there should be criteria which are clearly laid down and understood by all. I am not at all persuaded that the words "where appropriate to" are in fact appropriate to the difficulty which we are trying to get over. If the noble Lord would in effect leave it with me and agree to withdraw his amendment for now, I will take the whole matter back and re-examine it, to see if it is possible to limit the duties of licensing authorities in this respect, probably, I suspect, by referring to activities,
"wholly or mainly carried out on the premises forming part of the building".

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We get on to this form of words in, I believe, Amendment No. 20. I think that this is something we could use as the basis for limiting the duties of the licensing authority in this respect. In effect, I will give the matter further consideration.
Lord Ross of Marnock: I am very glad of that, but, as the noble Earl the Minister of State will appreciate, he has got to give the matter further consideration, because, if he turns his eye to page 87, he will find in paragraph 8(3)(a), in relation to a temporary licence, the words,
"shall consult the chief constable and the fire authority".
In paragraph 8(3)(b), he will find the words,
"may grant it",
and, in paragraph 8(3)(c),
"shall not grant it if there are any objections from the chief constable or, in a case where the fire authority have been consulted, the fire authority".
Paragraph 8(3)c, states,
"in a case where the fire authority have been consulted",
but paragraph 8(3)(a) says that they have got to be consulted. There is a bit of nonsense there somewhere, is there not?
I shall be quite satisfied if the Minister looks at this and finds more appropriate words than those which I seek to put in, and I shall be happy to leave that at this stage. But there has been a lack of checking from page to page in this particular schedule in respect of what is being done and what is being said. The noble Earl will appreciate that this will also arise in the next section. I think I have four or five amendments but this amendment is not yet in the Marshalled List and so it may well be that the Scottish Office has not yet seen it. But the 50 or so amendments which I have put down and delivered this morning will be in print and you shall see them by the time we consider this next Tuesday. However, it is not a case of the Minister having a look at this—he has got to have a look at it if he is going to make sense of paragraph 3 of the schedule. That being so, I am happy to withdraw the amendment.
Lord Harmar-Nicholls: I should like to add my voice to that of the noble Lord, Lord Ross of Marnock. I hope not only that this will be looked at but that it will be looked at with sympathy, with the intention of arriving at something like the wording of the amendment. I do not know how many noble Lords are aware of this, but the interference of the rigidities of the fire precautions investigations today may serve a very good purpose in theory, but in practice it perhaps does more harm than good in the way that it is applied, in slowing up actual developments and improvements that ought to take place. I should have thought that the words used by the noble Lord in his amendment were fair enough, and if the amendment is to be looked at again, I hope it will be with a view to strengthening rather than weakening the intentions behind the words in the amendment.
Lord Stodart of Leaston: I believe this is the first time in some 25 years that I have found myself in agreement with the noble Lord, Lord Ross of Marnock. It is a unique occasion and I am wondering what celebration we might have afterwards. As soon as I saw
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this amendment I pencilled against it "window cleaners?". My mind really does boggle at the thought of fire stations having their offices filled with files of applications for window cleaners' licences. Therefore, I would add my voice to those of other noble Lords who hope that my noble friend can accept this amendment.
Lord Hughes: I hope that my noble friend is not deterred from well-doing by this belated repentance of the noble Lord, Lord Stodart!
Amendment, by leave, withdrawn.
Lord Ross of Marnock Lord Ross of Marnock had given notice of his intention to move Amendment No. 15:
Page 82, line 35, after ("owner") insert ("and the occupier").
The noble Lord said: With regard to Amendment No. 15, in this case the applicant has got to send copies of his application,
"to every occupier and every person appearing from the valuation roll to be the owner of other premises in the building".
It may well be that the occupier is already covered but I wanted to make absolutely sure that the occupiers of the premises, who are probably much more in touch with what is happening and much more directly affected by what is happening with an application for a licence, should certainly receive it. If my second-thought suspicions are right, then I will not move the amendment. I take it that that is so, and I will not move this amendment.
[Amendments Nos. 15 and 16 not moved.]
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 17:
Page 83, line 16, after ("publication") insert ("timeously").
The noble Lord said: In paragraph 2(5), it states:
"Public notice of an application shall be given for the purposes of sub-paragraph (4)".
That is what the licensing authority has to do in respect of giving notification to the public about what licences are going to be considered for grant or renewal. I merely wish to insert the word "timeously", (a) because I like the word, and (b) because the Minister of State dearly loved the word when we dealt with the last Bill, and here is a chance to get it in so that we get it into the minds of the draftsmen that wherever possible we should be able to use this fine, fine word. I beg to move.
The Earl of Mansfield: I may be out of order, but I must tell the noble Lord that after our brush over this word in the last Bill I went straight to the Oxford English Dictionary and rejoiced in the fact that we were both right, and I have no doubt that he did too. Nevertheless, attractive as we all find the word to be, I do not think that it would add anything significant in practice. Under Clause 3 of the Bill, as we have already discussed it in Committee, the local authority is under a duty to consider applications within a maximum time which is specified and laid down. The period of objections or representations provided for later in the schedule is determined ultimately by the date of publication of the advertisement rather than the receipt of the application. So I may perhaps

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refer the noble Lord to paragraph 4(2) of the schedule, where it says:
"A licensing authority shall not reach a final decision upon an application for the grant or renewal of a licence until at least 7 days after the last date under paragraph 3(2) above for lodging any notice of objections to or representations about the application".
So the noble Lord will see that the amendment does not add anything other than a generalised statement of intent so far as the paragraph is concerned. As the noble Lord has, quite rightly, been concerned to cut out surplusage in the Bill wherever it occurs, I hope he will not on this occasion insist on this particular amendment, attractive though the word is.
Lord Ross of Marnock: Since I gave way on the noble Earl's "without unreasonable hesitation or delay" he should surely accept this single and well-intentioned word. But if he has hardened his heart against the word, having looked in the dictionary—I may say that I did not require to look at the dictionary to see what it meant, but then I have a different attitude to words; he, after all, is a lawyer—I will not press it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.22 p.m.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 18:
Page 83, line 25, leave out sub-paragraph (6).
The noble Lord said: I just want information about this one. It is to leave out sub-paragraph (6):
"The licensing authority shall be entitled to recover from the applicant the cost of giving public notice under sub-paragraph (4)(a) above of his application".
That is to say, if they decided to publish it in newspapers by way of advertisement, then they would be entitled to recover the cost from the applicant. They do not need to but they are entitled to. Bearing in mind that it is a very expensive matter nowadays to publish such an advertisement even in local newspapers, I was wondering whether this was fair. It is really to apprize other people of what is happening so as to allow them to exercise their rights. Why should it be wished upon the applicant? Is it done elsewhere?
I can remember that, when it comes to the question of renewal of a liquor licence, you get whole pages of the local newspaper taken up by the proposals and letting people know what is likely to happen. Are they charged in that way? Is the cost of that passed on to those applying for liquor licences, and, if so, is that the precedent for this? Or is this something new? That is all I want to know. I beg to move.
The Earl of Mansfield: This provision was part of the consultation document and it was not objected to, and that is the reason why it finds itself in the Bill. It is different, of course, as the noble Lord has inferred, from the liquor licensing provisions. I think I am prepared to accept the amendment if the noble Lord wishes to press it. I should say, because I do not want to deceive the noble Lord, that, if one looks at paragraph 16 of the schedule, which relates to fees, the costs of advertising as a whole could be reflected in the fees charged under that paragraph of the schedule. So it would be a matter
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for the licensing authority to charge such reasonable fees as they in accordance with paragraph 16(2) determine. On that basis, if the noble Lord feels that this would be oppressive or onerous or in any way unfair on applicants, I am prepared to accept the amendment.
Lord Ross of Marnock: I am very glad of that; it may speed up our discussion, because I think my Amendment No. 44 deals with paragraph 16(2). I think it would be worth while leaving it out here. There is no point in being able to cover it twice.
On Question, amendment agreed to.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 19:
Page 83, line 28, leave out sub—paragraph (7).
The noble Lord said: I beg to move to leave out sub-paragraph (7). I do this to draw attention to something that is very important and was referred to by the noble Lord, Lord Campbell of Croy—and mistakenly in respect of what it really meant by the noble Lord, Lord Drumalbyn—at an earlier stage of our discussion. Here the Secretary of State takes power to,
"prescribe a class or classes of licences for the purposes of sub-paragraph (4) above, and in that sub-paragraph 'prescribed class' means such a class so prescribed".
What troubles me about this is that here we are giving a power to the Secretary of State, and, if I am reading sub-paragraph (4) right, along with this power to the Secretary of State the licensing authority can ignore it altogether. Is not that the meaning of paragraph 2(4)(b), which states that the licensing authority,
"may, if they think fit, cause public notice to be given, in accordance with sub-paragraph (5) below, of any application for the grant or renewal of a licence which is made to them hut which does not fall within a prescribed class"?
What happens with the Secretary of State? He takes power to prescribe a class or classes not presently prescribed and it becomes so prescribed. But, despite that, in respect of those that are outside the ambit of his prescription the local authority can apply this requirement of public announcement. Why is that? We have given this power to the Secretary of State to prescribe classes for the purpose of the notifications; virtually, he says, "These are the ones in respect of which notice shall be given"; and yet we give the local authority power to go outside it. It does not quite make sense. I wonder whether the Government do appreciate that.
I think that one of the difficulties about this business of the structure of this Bill is that within the schedule we give quite a number of powers to the Secretary of State that people will know nothing about, because they are in the schedule; people tend to read the Bill rather than the schedule. We tuck away powers to the Secretary of State. Here is one we are tucking in, and it is an important one, because, if he prescribes a class, they have to go through the hoop in respect of the notification, and in respect of that they are going to be charged later on, or could be. Yet the local authority can even step outside that. Despite the fact that the arbiter in respect of the forms of application for licence which have to be so widely publicised, restricts it to what he prescribes, the local authority can step outside that. It is rather strange. I beg to move.
Lord Underhill: When the Minister replies, I wonder whether he could give some indication of his view on the point which I raised on Second Reading? I referred to the fact that there were 1,500 taxi licences in Glasgow and 2,500 taxi-driving licences in Glasgow. Are we to have some guidance as to whether that will be covered by sub-paragraph (7) or could the local licensing authority find itself advertising not only 4,000 applications but 4,000 renewals of applications?
The Earl of Mansfield: I wondered when the noble Lord, Lord Underhill, was going to rise to his feet. The noble Lord, Lord Ross, did not move Amendment No. 16. I am not blaming him for that but it would have led us gradually into this part of the schedule. What sub-paragraph (4) says, in effect, is that where you have a prescribed class of applicant the licensing authority shall cause public notice to be given of every application; where you have an application which does not fall within a prescribed class, then the licensing authority may, if they think fit, cause public notice to be given. Then we go on to sub-paragraph (7) where it says in effect that the Secretary of State in his discretion is the authority who prescribes a class or classes of licences for the purposes of sub-paragraph (4) which I have just gone through.
If the noble Lord had moved Amendment No. 16, which he did not, I would have told him that he was making what we consider to be a good and flexible system into a totally unnecessary and rigid one, because what he attempted to do in Amendment No. 16 was to prescribe that all applications—including all those of the thousands of taxi-drivers referred to by the noble Lord, Lord Underhill—should be publicised as well. However, we thought that that was wrong and I would have said so.
Therefore, what we have done is to lay down, in effect, that there should be power to make advertisement compulsory where applications are received in respect of what I might call certain types of bad neighbour applications—that is to say certain, types of public entertainments licence or possibly late hour catering establishments' licences. And subject to the views of the convention, which we shall be taking into account, the Secretary of State will prescribe compulsory advertisement for these types of activity under sub-paragraph (7). So the point of the whole paragraph is to provide, as I have said, useful flexibility and it is really the best guarantee, I think, that there will be publication of applications in cases where, in the public interest, it is desirable that they should be made.
I come back to the noble Lord, Lord Underhill, and his taxi—drivers. I personally do not contemplate that they would come under that type of activity of which I provided examples a few moments ago. I should have thought that the Secretary of State would be unlikely to make applications by taxi-drivers the subject of a prescribed class order, as it were, under sub-paragraph (7). However, reverting to the amendment of the noble Lord, Lord Ross, I hope he will see that this is, in fact, a desirable way of going about the publication of certain types of licences and if so he might see fit to withdraw his amendment.
Lord Ross of Marnock: The noble Earl will appreciate from what he has said that it is the intention of
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the Secretary of State not to include taxis or taxi-drivers—
The Earl of Mansfield: I have not said that.
Lord Ross of Marnock: No, the noble Earl rather thought not to include them within a prescribed class. Am I wrong in assuming that?
The Earl of Mansfield: Perhaps I can interrupt. I said that we would want to consult the convention, and that is absolutely right, and they may very well have ideas of their own. But I did give examples of the sort of activities which the Government feel, as of this moment, are right for advertisement, because it could have certain undesirable consequences upon people occupying premises near or adjacent to where the activity which is to be the subject of the licence is taking place. That is not to say that the convention, for all I know, may come down one way or another so far as taxi-drivers are concerned. But, speaking for myself, I should have thought that they would not fall into that class.
Lord Ross of Marnock: Let us suppose that, according to the Secretary of State, they did not fall into that class. By subsection (2) they could still be put into that class—
The Earl of Mansfield: It is paragraph (b)?
Lord Ross of Marnock: Yes, (b)—by the licensing authority. It is rather questionable as to whether it is worthwhile for the Secretary of State himself to take over this power of prescribing. He might as well leave it with the local authority if he is going to leave them with the ultimate power of going beyond the list that is put down by the Secretary of State.
I deliberately did not move Amendment No. 16 so that we could have this argument much more succinctly, I had hoped, in conjunction with considering the powers of the Secretary of State. I do not think that the situation is entirely satisfactory but I hope that the flexibility that we hoped for will not lead to a certain measure of annoyance as different licensing authorities adopt different procedures. It is quite open to them to do so. It may be that a licensing authority will consider that something not on the prescribed list should be advertised.
I am going to move amendments later in respect of many other matters that I consider come under the heading "bad neighbours". There is a type of shop in respect of which I see protests being made in Paisley, Glasgow and elsewhere, and I may try to persuade your Lordships that the power should be given for them to be licensed and for the licensing authority to make the decision about them. It may well be that the Secretary of State will not put them on the prescribed list, but that many local authorities would love to have not only the power to license them but to make fairly widespread the information that these people have applied for a licence. Let us take as an example a sex shop in the middle of a Borders town. Do your Lordships not think that it would be a good thing for the local authority to have the power to say "No"? They do not have that power at present. All these possibilities are opened up by the Bill.

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I am going to give the House an opportunity to discuss these things and it may well be that we shall find a solution to matters which are creating problems in England. If the Secretary of State does not put these kinds of things into a prescribed list, I am glad that the local authority will have the power to ignore the list of the Secretary of State and not to consider that it ties them down. I am glad that they can go beyond the list. It may well be—and I am just warning the Government—that with this power we may get a different approach to different problems in different licensing authorities. So long as the Government know that and are prepared to accept that and say, "Well this is local choice", then I am prepared to support them.
Therefore, on the understanding that now we know the meaning—and even the taxi-drivers, although they are not in the list, are not necessarily safe because the power is given to each individual licensing authority to act as it sees fit in respect of requiring public notice to be given and then charging the people, one way or another, for that—I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.40 p.m.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 20:
Page 83, line 39, after ("and") insert (",where premises are involved,").
The noble Lord said: Once again, this raises the question of information to the fire authority. Can I take it that what the Minister said on the previous amendment applies in this case?—namely, that he is looking at this and will look at all the other amendments with regard to seeing what are the right words to include. If that is so, then I beg leave to withdraw this particular amendment.
The Earl of Mansfield: This is a rather different matter from the previous occasion when I said that I would take it back and look at the drafting. Whether the noble Lord wants it or not, the effect of his amendment would be to return to the position in this clause as drafted in the consultative White Paper. As I said before, of course, I am sympathetic to the desire to reduce paperwork and, as I said, I am prepared to consider the possibility of limiting the duty of licensing authorities as regards notification about licence applications.
However, even if we amend to provide for some such limitation as regards notification, we must still safeguard the right of the fire authorities to object in all cases when a licensing authority consults a fire authority informally in, for instance, a case where the interest of the fire authority might seem peripheral but turns out to be considerable. I can give the noble Lord the example—and I am not being facetious—of the case of a mobile "fish-and-chipper", which are very common, certainly in my part of Scotland, and I rather imagine in the noble Lord's too.
Lord Ross of Marnock: No!
The Earl of Mansfield: The suburbs where I live are perhaps not so desirable as the noble Lord's area.
Lord Ross of Marnock: Scone Palace is very different from the part of Ayr where I live.
The Earl of Mansfield: We have mobile fish-and chippers, and a horrible noise they make with their chimes. But I am concerned about the highly combustible equipment that they use in order to prepare the fish and chips. If this was not written into the schedule, the fire authority might not be in the position to give the advice which it should when the mobile trader's licence is being applied for. That is my point. Therefore, I maintain that it is desirable for the fire authority to be empowered to object and to be publicly heard in a case which might involve risk to the public as well as to the operator of the mobile fish-and-chipper.
I know that these cases are probably rare, but IL think that there must be a failsafe. I think that there must be an unqualified right for fire authorities to object to licence applications, and that this right should be retained. That is why I wanted to tell the noble Lord that what lies behind this amendment is very different from what lay behind his last amendment, when I undertook to consider the wording.
Lord Ross of Marnock: Far be it from me to do anything that might endanger Scone Palace and the right of those living therein to object—because this is what we are dealing with—to this kind of licence for the mobile chipper. I shall certainly have another look at this between now and the next stage of the Bill. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Ross of Marnock Lord Ross of Marnock had given notice of his intention to move Amendment No. 21:
Page 83, line 43, leave out from ("activity") to ("premises") and insert ("consisting of or including the use of").
The noble Lord said: I do not think that I shall move this amendment. I was so horrified at the spelling of the word "carried" that I hurriedly wrote down some words that do not entirely make sense. That being so, I do not propose to move this amendment.
[Amendment No. 21 not moved.]
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 22:
Page 84, line 11, at beginning insert ("(i)").
The noble Lord said: We can take Amendments Nos. 22 and 23 together. This is an effort to try to break up into two the indigestible dollop of prose in order to make it easier to read. Having done so, I then discovered that it had already been done in two parts in the draft Bill. Once again, victory is in sight; I can see the gleam in the Minister's eye. I beg to move.
The Earl of Mansfield: The noble Lord is perfectly right to try to achieve what he seeks to achieve. The trouble is that he is not going about it in a manner which harmonises with the drafting convention, which avoids the use of lower case letters followed by small

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Roman numerals. The difficulty is that the noble Lord's Roman"(i)"and Roman "(ii)" would relate, in fact, to "(c)"if he used them in that way, and "(c)" is on its own and the subsection then runs on. However, having said that, I am quite at one with him that it needs redrafting. As regards both these amendments, I would ask him to withdraw them and I shall ensure that the sub-paragraph is redrafted in, I hope, a much better way.
Lord Ross of Marnock: So long as I have the solemn promise of the noble Earl—after all, I helped Scone Palace in the last amendment so he should help me in my efforts to study the Bill and know exactly what it is all about—that he will do this, then I gladly withdraw this particular amendment.
Amendment, by leave, withdrawn.
[Amendment No. 23 not moved.]
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 24:
Page 84, line 28, leave out from ("at") to ("the") in line 31.
The noble Lord said: This is an effort by me to shorten the Bill without any tremendous power to the Secretary of State or clarity of information to the people involved. Therefore, it will read thus:
"(c) by leaving a copy of the said notice for him at the address specified as his address in his application".
That would leave out a full line and a half. In fact, in the way it is printed it amounts to more than that—to some quite unnecessary prose. I beg to move.
The Earl of Mansfield: Again, I sympathise with the noble Lord in what he is trying to achieve and, again, I shall undertake to take this away. I say that immediately. It is only right that the explanation which the draftsman has given to me should at least be put before the Committee. It was thought that the expression "proper address", which the noble Lord seeks to omit, is a convenient label, although it does not have any other legal significance. When used both in line 26 of sub-paragraph (3)(b) and in line 28, it is a device for avoiding repetition in each of those lines of the rather lengthy meaning given to the expression in lines 30 and 32; that is, the address specified as the applicant's address in his application.
Any other suitable adjective could have been used as "specified" or "chosen", but "proper" is the one normally used in this context. An example is Section 234(3) of the Local Government (Scotland) Act 1973, where the frequently occurring "proper officer" is stated to mean "in relation to any particular purpose the officer appointed for that purpose by the local authority". Having said all that, I shall take it away and see whether we can achieve something which will be more satisfactory so far as the noble Lord, Lord Ross, is concerned.
Lord Ross of Marnock: That being so, I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Ross of Marnock Lord Ross of Marnock: moved Amendment No. 25:
Page 84, line 42, leave out sub-paragraph (5).
The noble Lord said: I shall try to deal with this fairly quickly. Paragraph (5) deals with frivolous or
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vexatious objections to applications. There are two points within paragraph (5). One is that they are so, and have been made, and the other is the question of whether an agent makes an objection which he has no authority to make. It would have been far better to separate them.
What worried me more than slightly was that the licensing authority is given power here virtually to fine the persons involved and then to leave it to the sheriff court to collect the money. This is something the sheriff has nothing to do with at all. This is a decision by the licensing authority, and then it hands over the collection of the monies involved to the sheriff court. I was wondering whether it was wise to bring the sheriff into this when he has nothing to do with the decisions about whether it is vexatious, or whether someone has been misrepresenting someone or other in objecting to some application, and wondering whether this was the best way to deal with it.
If it was so obviously vexatious and frivolous I should have thought that no expense would have been involved. The thing just would not be heard. The support that the Secretary of State has, by the way, in respect of frivolous objections is that he can just dismiss them out of hand. I think I am right in that, and that probably applies to something just as important as this, if not more important. I just wanted to hear the thinking of the Government in this respect. I beg to move.
The Earl of Mansfield: This sub-paragraph has an eminently respectable provenance because it follows the line of the provisions in the Licensing (Scotland) Act 1976, and more especially Section 16(6). It is in no sense a power of administering a fine to be exercised by the licensing authority. What it does is to enable the licensing authority to charge frivolous, vexatious or unauthorised objections for the time and expenses incurred by the authority in disposing of the objections. It enables the authority to recover the cost by bringing a civil action in the sheriff court.
I should have thought that it is both useful and well precedented. I do not know whether the noble Lord thinks that there never will be frivolous or vexatious objections, or whether if there are the frivolous and vexatious objectors should not be made, if I may use the expression, to pay for their fun; or whether he thinks that the licensing authorities are going to be onerous in the way in which they mulct the frivolous and vexatious objectors in respect of the costs. In any of those three instances I should have thought that one could leave it to the good sense of local authorities and trust them to be reasonable about this. If the noble Lord really thinks there is room here for unfairness, for injustice, because I appreciate that there is no right of appeal—and I say that bearing in mind that we are talking in de minimis terms; there are not going to be many cases; the amount of costs that would be occasioned by frivolous objections is going to be very small—I shall take it back and have a look at it.
Lord Ross of Marnock: I think that the noble Earl should take it back and look at it. If this behaviour is all that important, it should be made an offence. Then it should be a matter for the courts, and let them deal with it rather than let it be dealt with by a licensing

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authority virtually having the power to fine them. To do that and then pass it to the sheriff court for them to collect the expenses is just a bit much. I am grateful that the Minister is prepared to have another look at this.
Amendment, by leave, withdrawn.
Lord Ross of Marnock Lord Ross of Marnock had given notice of his intention to move Amendment No. 26:
Page 85, line 30, at end insert—
("(i) take into account any objections or representations made in accordance with paragraph 3 above;
(ii) make such reasonable inquiries as they think fit.").
The noble Lord said: In the interests of speed I shall not move this amendment.
[Amendment No. 26 not moved.]
[Amendment No. 27 not moved.]
Lord Denham: I think this is probably a good time, unless the noble Lord would find it more convenient to do a couple more—
Lord Ross of Marnock: I am prepared to withdraw the next two, if that is all that is wanted.
Lord Denham: That would be very helpful.
Lord Ross of Marnock: It would bring me to a particular point that would suit me.
[Amendments Nos. 28 and 29 not moved.]
The Parliamentary Under-Secretary of State, Department of the Environment (Lord Bellwin): I beg to move that the House be now resumed.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Rent Assessment Committees (England and Wales) (Amendment) Regulations 1981
5.57 p.m.
Lord Bellwin: My Lords, I beg to move that the Rent Assessment Committees (England and Wales) (Amendment) Regulations 1981, laid before the House on 10th November, be approved. These regulations are concerned with the procedures followed by rent assessment committees. Committees are drawn from 14 regional rent assessment panels, and their task is to fix fair rents in those cases where either landlord or tenant has objected to the fair rent registered by the rent officer. The regulations do not in any way affect the independence of rent assessment committees from central Government, nor affect the basis of assessment of fair rents. Their objective is to streamline procedures and to reduce delays without prejudicing the rights of either landlords or tenants. The proposals flow from the recommendations of the Working Party on Rent Assessment Panel Procedures, whose report was placed in the Library on 10th November.
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Rent assessment committees have received 12,000 cases in the first nine months of this year. This is more than 50 per cent. up on the equivalent period last year, and they are to be commended on the improved productivity that has been achieved. The working party's report, however, has identified ways in which we can look for still further improvements so that landlord and tenant can get a speedier service, and so that the cost per case can be kept down. Most of the working party's recommendations concern administrative arrangements in panel offices, and can be implemented without regulations. Others concern rent tribunals, and are the subject of separate regulations that do not require affirmative resolution. We are concerned in this debate only with those proposals which require statutory amendment to rent assessment committees procedures. There are two such proposals, the first dealing with time limits and the second with the giving of reasons for decisions.
Under the rent assessment committee procedures there are two principal time limits. When a committee receives a case, it must serve a notice on the landlord and tenant asking whether they wish to request a hearing or to make written representations. At present the committee must give at least 14 days to the parties to respond to this notice. We propose in these regulations that the period should be seven days. If a hearing is requested, the committee must then serve a further notice giving at least 14 days' notice of the date when it will take place. We propose that the period be either 10 or seven days. The lower seven-day limit would apply only in those cases where the earlier notice to which I have referred—the one asking the parties whether they wish to request a hearing—told the parties in advance the date the hearing would take place if one was requested. They will therefore already have noted this date.
These shorter time limits would help to reduce delays in getting hearings, and speed is important to both landlord and tenant. An objection to the rent officer's registration in itself extends the period of uncertainty for landlord and tenant as to what the fair rent will be, and they are entitled to expect the rent assessment committee to resolve the matter speedily. I note that the working party quote the Lord Chancellor's words:
"Where there is delay, the whole quality of justice deteriorates"
Seven days has proved to be a quite adequate time limit on other analogous circumstances; for example, it has been the standard limit for rent officer proceedings since 1965. Moreover, rent assessment committee hearings are likely to raise issues which have already been considered by the parties in the course of the rent officer's determination, so the facts and arguments should already be familiar to them. In addition, the shorter limits will be accompanied by other administrative changes which will enable the parties to begin to prepare their cases or take advice before the time limits commence. In future, the rent officer—to whom all objections are addressed in the first place—will write to the parties explaining how the case will be dealt with and warning them of the action that will be required of them, even before he sends the papers to the assessment committee. And time in the post will be excluded.

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The Council on Tribunals have been consulted on the regulations. While they have said that they would have preferred longer time limits, they acknowledge that the points I have outlined provide some off-setting safeguards for the parties. They have however particularly asked that the proposed new limits should be minima that can be extended administratively in particular cases on good reason being shown. I assure your Lordships, first, that the legislation is so framed that the limits can be extended administratively, and, secondly, that panels will be asked by my department to allow extensions whenever the parties can show good reason for that. They will in particular be asked to establish whether either of the parties will be away—for instance, on holiday—and to make appropriate allowance for that. In that way the majority of cases can be dealt with more speedily without leading to injustice in those cases which specially merit longer periods.
The second proposal covered by the regulations relates to the giving of reasons. The regulations remove the requirement, first introduced in 1971, that rent assessment committees must give reasons for their decisions in all cases, whether requested by the parties or not. Instead, committees will simply be governed by the general requirement of the Tribunal and Inquiries Act 1971 that reasons must be given where requested by either landlord or tenant. Under that provision, the parties will be able to request reasons either before the notification of the decision or during a reasonable period thereafter. This absolute right to reasons will he made clear to the parties in simple language in the literature they receive, both at the outset of the case and at the time they are given the decision. If they ask for reasons, they will get them. Where there is no such request, the time saving will mean that committees can issue decisions much more quickly and deal with more cases per day.
Although the Council on Tribunals favour the giving of reasons in all cases by tribunals, whether or not requested, the Working Party have argued convincingly in their report that a different approach is justified in the particular case of rent assessment committees. Indeed, they point out that the Franks Committee, whose report in 1957 led to the creation of the Council on Tribunals and the current legislation on the giving of reasons, themselves recognised that the position of rent-fixing tribunals is somewhat different from that of other tribunals; they are making an expert judgement of value, rather than simply applying stated law to proven fact.
Experience of statutory rent-fixing since the Rent Act 1965 does not provide any evidence that where the giving of reasons has been obligatory rather than contingent, this has resulted in a higher standard of decision-making. Rent tribunals, who fix reasonable rents for restricted contracts, have never been required to give reasons for their decisions where they have not been requested. Prior to 1971, rent assessment committees themselves were not required to do so. None of this experience suggests that decisions without reasons are worse in quality or more criticised. In making decisions, committees will of course always need to bear in mind that reasons might still be requested by one of the parties when he or she receives
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the decision. There is therefore no sense in which the absence of a mandatory requirement to give reasons will in any way reduce the intellectual discipline required for reaching a decision on the rent.
I do not believe it is reasonable or justifiable—especially with a rising caseload and the need for economy in all areas of the public service—for rent assessment committees to continue to have imposed on them the time and expense of formulating written reasons, which in practice often run to several pages, which neither of the parties may want. The resulting delays can only be to the detriment of those who wish to have the decision on the rent itself as quickly as possible.
The proposals in these regulations are aimed at enabling the landlord and tenant to have a full and fair opportunity to put their case according to the rules of natural justice without procedures becoming so prolonged as to create a different kind of injustice—that of delay; and without detracting from the informality and accessibility that is one of the great strengths of rent assessment committees. It is a difficult balance, but I believe the working party got it right in their recommendations, and I commend these regulations to your Lordships' House.
Moved, That the draft regulations laid before the House on 26th November be approved.—(Lord Bellwin.)
6.6 p.m.
Baroness Birk: My Lords, I thank the Minister for explaining the regulations, and while I am not particularly happy about them, they are not on a par with matters such as the compulsory sale of council houses and other issues on which there have been some very strong arguments between the Government and these Benches. I must say at the outset that I am not very happy about the reducton in time. I take the noble Lord's point that one should try to speed up these issues, not just in the interests of economy and time but because it is obviously an advantage to the applicant—to the tenant, the landlord or both—to have the matters dealt with as expeditiously as possible.
We must look very carefully at the same time at the disadvantages as a result of shortening the times in question and compare those with the advantages of a quicker hearing. For the unrepresented tenant, for example, the reduction of the period in which a decision whether to ask for an oral hearing or make representations could prove a grave disadvantage. It could be a burden also for the represented tenant or represented landlord in that the shorter time could lead to them being hard pressed, particularly when they need legal or other opinion to support them; it might be difficult for them to get that opinion organised within that time.
Under the Labour legislation of 1960 the time was shortened, but it was extended in 1980 by the present Government. The Minister gave the reasons, but they did not seem to get to the heart of the reason why they have now gone back on that. I was impressed by the view of the Council on Tribunals on this. Although they took into account very much what the working party had said, in the end they came down to arguing against the curtailment of time. That being the case—it is a legal and not just an administrative act—it is important to ensure that the matter

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receives very careful consideration before being accepted.
Like the Minister here, the Minister in another place spelt out, though in a little more detail, the safeguards envisaged. Perhaps when he replies the Minister can assure me that there has not been any change in the safeguards, or can make some other comment on them. The first safeguard was that in future the rent officer to whom all objections to a fair rent are addressed in the first place, instead of just acknowledging objections, should write to the parties explaining the rent assessment procedure and indicating that they would be allowed to choose either an oral or a written hearing. I very much welcome that safeguard, and I believe it is most important that people should have the procedures explained to them.
However, I ask the Minister whether he will use his influence and good offices to ensure that the explanation is couched in easily understood, readable, and simple English, so that people know exactly what it means. Unfortunately, especially in the area of rents and entitlements, some material that is issued, and which people have brought to me to try to elucidate, is extraordinarily difficult to understand. There should be simplicity of language. Very often people who draft the documents-this is not a criticism of them-themselves know the subject so well that they find it difficult to believe that everyone else is not as cognisant of them as they are. Such material needs to be worded in simple English.
In addition, it would be helpful if the whole method of assessment could be explained, too. I think the Minister is aware that this point was raised by a Government supporter in another place, and it seems to me to be a very good suggestion. So, not only the procedures, but also the method of assessment, should be explained.
As the minister pointed out, the first notice sent should, wherever practicable, give the actual date on which any hearing is to take place, so that the parties can provisionally note it. I hope that in practice this does not prove inconvenient to the parties in the sense that they might feel that there is no alternative date. People who are not used to receiving official communications can often find them rather frightening, and unless it is made absolutely clear, they might not realise that if the proposed date is inconvenient or impossible for them, they can ask for another date.
Obviously if it is hoped to expedite matters, there will be an inclination to adopt the shortest procedure, involving the seven-day limit. That would expedite dealing with cases. The Minister gave a figure of 12,000 cases last year, and if the number of cases is on the increase, I can see that there would be a preference for the shorter time period. But it is very important that people should not be pressured into it, only to be told later that they can ask for a longer time period. I am sure the Minister would agree that if that happened, the benefit sought by trying to proceed on the shorter time basis would be lost, because there would be more correspondence and even more delay.
I am pleased to see that the statutory time limits are exclusive of time in the post, which is an extremely important factor nowadays. I understand that the Minister in another place undertook that the documents
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would all be sent by first-class post. This might seem a small detail, but it makes a considerable difference if correspondence is received within a few days, rather than taking much longer to arrive.
I am also pleased that the limits are the minima, so that they can be extended. This is very important, and tenants and landlords should be made aware of it. It should be publicized—and in simple language, since I fear that not everybody understands exactly what "minima" means. I should like to see it explained quite simply.
I turn now to another point that the Minister himself made. The committees will be asked to establish whether at the time of a first notice either of the parties were intending to be away from home for whatever reason in the following few weeks. I welcome this proposal, too; it is absolutely right. However, there is a further type of case which I believe should be covered in this part of the regulations, rather than merely come under a general heading. Many people will have to make arrangements to take time off work so as to be present when their cases are heard. I should like to see this point written into the safeguard, rather than be covered merely under the phrase about "any other reason, or a good reason". This is a very important point, and it will probably apply more often than will instances of people being on holiday or otherwise away from home. I hope that the Minister can satisfy me on that particular aspect.
I turn to the question on the giving of reasons. The Council on Tribunals was not happy about the removal of the automatic giving of reasons in these cases, which is to be replaced by a provision for reasons to be given if asked for. First, with respect, I do not believe that the comparison here with rent tribunals is completely sound. I do not think that there is a complete analogy because basically the rent tribunals, while they can of course fix rents, have had the primary function of giving temporary periods of security, and since 1974 this has essentially been to tenants of resident landlords. These are therefore discretionary decisions made on the facts of the case. Thus they are more subjective decisions, and so in these cases there is less value in having written reasons. But with rent assessment the reasons would have to be more objective, since the factors that prevail are the condition of the property, the size of it, the amenities, the terms of the tenancy, and the service provided, and in some cases outside London and the major conurbations there is also the scarcity factor.
The rent tribunal is a body to which one applies, but the assessment committee is really an appeal body from the rent officer. Therefore, I believe that there are stronger grounds for a rent assessment committee, as compared with a rent tribunal, having to give written reasons.
Furthermore, there is the situation of the individual tenant, and possibly the individual landlord, too, since we are not necessarily talking about landlords who have a great deal of property and who know all the ropes. Certainly many of the tenants do not know all the ropes, either. As we have seen in so many other social and housing fields, people are often reluctant to take the initiative in these cases and decide to ask for all the reasons, which at the moment are given automatically.

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There is another strong factor to be considered in pressing for the retention of automatic giving of reasons. We need to have available a body of previous decisions, and the provision under which reasons are to be given only if asked for will mean that the available body of opinions on previous decisions will be substantially reduced. It could also mean that the rent officer would be without the benefit of having the details of many of the decisions of the rent assessment committee, which are a tremendous help and back-up when he is himself making decisions.
As I have said, many people simply will not ask for the reasons, and I wonder whether the Minister can tell me how many people asked for reasons from the rent tribunal during, say, last year. That would be a fair period of time to consider. The 1971 regulations made rent assessment committees give reasons in writing for their decisions, whether or not they were asked to do so. I wonder whether there is any other reason, which perhaps I did not quite understand, or any other explanation or motivation for what the Government are doing, except this question of expedition. Here, I think I am more concerned about this proposal than I am even about the cutting of the time. I have mentioned the question of objections and also about explaining the methods of assessment. I think this also cuts across both party and professional lines; and, as I have said, there are so many people who are not generally cognisant of these niceties.
Finally, I would ask the Minister whether he could give me answers on the following points. First, it will be possible to establish at the time of the first notice that people will be aware that getting leave of absence from work will be included in the safeguards—and here I should like it written in. Secondly, the method of assessment should be explained. Thirdly, since I am certainly not going to divide the House on this order (so presumably it will then go through unless some of the Minister's noble friends object to it, which is fairly unlikely, I would have thought), I should like him, if he would, to undertake that, preferably after six months but certainly not longer than after a year, we shall be given the numbers of landlords and tenants who have requested reasons. I would ask him to give some report on how that proposal is working out—that is, not giving written reasons automatically but only on request—so that we have some idea of the situation in different parts of the country; and also on how the question of cutting the time is working out, both on the question of expedition and on whether in fact some of the points I have raised have meant that there is cancelling out, if there has to be a certain amount of correspondence or communication in order to try to arrive at a convenient date between the various parties.
Further, I think we should be told whether or not the procedure is working satisfactorily. In asking for this, I am of course assuming that if the Government found it was not working as well as it should—not just because these matters were not being dealt with fairly quickly, but because it was not to the benefit of either the tenants or the landlords, or both—they would reconsider it in the light of the experience of either six months or, at the most, a year.
6.24 p.m.
Lord Bellwin: My Lords, I shall try, if I can, to answer the points that the noble Baroness has made, but I would preface my remarks by saying that of course the observations made by the Council on Tribunals, an important and knowledgeable body, were considered very carefully in this respect, as indeed was the report of the working party, which I am sure the noble Baroness would agree with me consisted of some extremely knowledgeable people in this field. It was a question, at the end of the day, of striking a balance—not always the easiest thing to do. I understand when the noble Baroness says she is not happy about the reducton in the time, but perhaps I should explain first why it is (she asked me the question) that we seem to have, as she said, gone back on what was put into the Act.
The fact is that the changes in the 1980 Act were made at the request of the Council on Tribunals in the first place, but since then the experience of panels is that they have in fact given rise to delays, especially on rent tribunal cases, and made it more difficult to cope with the increased case load following the introduction of the 1980 Act. At the time of the 1980 regulations the council were made aware that all panel procedures were about to be reviewed, and that the 1980 regulations were merely a holding measure related to the Housing Act; and the proposed new changes to rent assessment committee time limits stem from an overall examination of procedures, and are part of a package of recommendations designed to make more efficient use of the time during which cases are before a committee.
The noble Baroness then asked—I am trying to cover as many of her points as I can—whether I would ensure that the explanation is in simple terms, in simple language. This, I entirely agree with her, is very important. I know from much experience when I was on the Francis Committee that this whole field is a complex one, and this was the cause of great concern. So I say, Yes, I entirely agree with her. It has to be simple language, and the Government are revising all the forms with a view to this. A leaflet will be given to parties at the beginning which will explain procedures and the criteria that the committee will use in fixing the rent—and, I repeat, it will all be in very clear language.
Baroness Birk: My Lords, may I intervene briefly there? There was something I forgot to say when I was speaking. I know the Minister is very busy—I am sure he is as overburdened as everybody else is—but I have noticed that when he explains these and other matters himself in his own words it comes over very well and sounds extremely simple. Will he undertake to have a look himself at the explanation which is given? Because it really is a matter of communication.
Lord Bellwin: My Lords, I am grateful to the noble Baroness for that. Yes, I will give an undertaking. I am extremely interested, as it happens, in this particular field. Yes, I will do that, and I will communicate with the noble Baroness. We will look at them together when they come out.
The noble Baroness asked me how many people requested reasons from rent tribunals in the last year.

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I am informed that, in fact, in less than 10 per cent. were such requests made. As to whether we shall look at this again in six or 12 months' time, I am sure we will monitor it very carefully, and if the noble Baroness cares to put down a Question or to raise the matter in some way within that time I shall be very pleased to try to give her the answers to that. The noble Baroness then asked if she could be told whether or not it was working satisfactorily. Yes, we will try to assess that as we go and tell her what she wants to know about that.
On the matter of the post, we are asking rent assessment panels to use first-class post. I can confirm that we are doing that. The matter of taking time off work is more difficult. Panels will consider any reasonable argument that longer time limits should be allowed, but I think it is not possible to lay down firm rules about particular points such as these. I am hoping that what comes through from the statement and, indeed, from what I am saying now is a genuine wish to try to be helpful in this whole matter. It is a case of getting a balance in coping with the situation. I will not say it was unexpected, because the decontrol of the 1956 Act was bound to lead to many more applications, as indeed was the alteration in the rule from three to two years. Nevertheless, here is a situation which calls for action. There are two points. As long as the people retain the right, if they wish, to have written reasons—and that is absolute—then I think that is a safeguard; that is, as long as it is clearly understood, and I take that point. The other point about time we will watch carefully. I think that this is a constructive proposal that we are making. It will be interesting to see how it works out in practice.
Baroness Birk: My Lords, I am sorry to pursue this; but there does not seem to be a great difficulty when putting this out in guidelines and circulars to include the words "being at work". His honourable friend in another place said when he introduced the order:
"Finally, committees will be particularly asked to establish at the time of the first notice whether either of the parties intend to be away from home for whatever reason in the next few weeks and to fix the date of any oral hearing accordingly".
With respect, I would have thought that in that paragraph, in which, I take it, all these safeguards will be publicised and issued as guidelines, the words, "or making arrangements to be absent from work", could be included. I am sorry to press this, but it is important. There are a number of housing organsations which feel strongly about this. The only other thing that the Minister has not done is, as well as explaining the procedures, also to explain the methods of assessment. This was raised in another place.
Lord Bellwin: My Lords, on these latter points I do not think that the noble Baroness is suggesting that should now give details of the methods of assessment. I think she is asking whether we will take steps to make it clear what the methods of assessment are at the time. As to that, and on the earlier point, I will think about what she says. How far it is practical, I am not sure. We will read what she says and look at the points. We are anxious to avoid anything that will cause delay. One of the two objects of this exercise
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is to avoid delay. We must not do anything adversely to affect that. I will read what the noble Baroness has said and write to her.
On Question, Motion agreed to.

Transfer of Undertakings (Protection of Employment) Regulations 1981
6.32 p.m.
Lord Lyell Lord Lyell rose to move, That the draft regulations laid before the House on 26th November be approved.
The noble Lord said: My Lords, I beg to move that the transfer of undertakings (Protection of Employment) Regulations 1981 be approved. They implement a European Community directive on the approximation of the laws of member states relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of businesses. They are made under the enabling power contained in the European Communities Act 1972 and they have been a long time in the making, and implementation of the directive is now overdue. The first draft of the regulations was in fact published under the previous Administration in June 1978.
The regulations do two main things: first, when there is a change of employer they provide for an automatic transfer of the employees along with the business. I emphasise, "where there is a change of employer", because this we take to mean where the identity of the employing company changes. The regulations do not apply to a change of ownership where only the controlling shares in a company change hands. Your Lordships will appreciate that at present if a business is sold as a going concern the contracts of employment are normally brought to an end. No longer will this be so. Secondly, the regulations provided for recognised trade unions to be given information concerning the transfer both by the buyer and the seller, and to be consulted about any measures that the buyer or seller intend to take in connection with the transfer.
Perhaps it might be helpful if I went through each regulation in turn. Regulation 1 provides that transfers taking place on or after 1st May 1982 will be covered. But, as the information and consultation requirements relate to a period prior to each relevant transfer, they will be brought into operation three months earlier on 1st February 1982. Regulation 2 dealing with definitions, is important because the House will see that regulations following the directive do not apply to undertakings which are not in the nature of commercial ventures.
Regulation 3 defines the scope of the regulations and makes it clear that they do not apply where all that is being transferred is the shareholding in a company. They only apply where there is a legal change of employer and where, immediately before the transfer, the undertaking is situated in the United Kingdom.
Regulation 4 is the product of a great deal of discussion and deals with the subject of "hiving down". A receiver or liquidator appointed to handle the affairs of a company will obviously consider whether a part of the concern might be viable. If he does reach that conclusion, he will often transfer the viable part to a wholly-owned subsidiary of the company with a

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view to its sale as a going concern. Essentially, the liabilities remain with the original company and a clean package free from liabilities can be offered to a potential purchaser. The employees continue to be employed by the original company, but their services are hired out to the "hived-down" company; and if it is sold, the employees are dismissed by the original company, and the purchaser of the "hived-down" company offers re-engagement to those whom he requires.
One can see the problem that would have arisen had a hiving-down transfer been regarded as a relevant transfer within the meaning of the regulations, and thereby caught by them. Liquidators would have had to comply with all the obligations of the regulations when there might have been only a small chance of disposing of the subsidiary company at the end of the day. So a solution was found; and Regulation 4 treats the "hiving-down" operation as a suspended transfer, which becomes a transfer for the purposes of the regulation only when a purchaser has been found. Immediately before a purchaser takes control of the "hived-down" company (either by buying the company or by buying its shares), the operation becomes a transfer caught by the regulations. The employees' contracts are automatically transferred and the information and consultation provisions also come into operation.
Regulation 5 provides that the contract of employment of the employee is automatically transferred from the buyer to the seller. All rights, powers, duties and liabilities under the contract or in connection with the contract are transferred to the new employer—except for criminal liability and liabilities for occupational pension rights, which I will deal with when I come to Regulation 7.
Regulation 6 provides that a collective agreement made by the transferor with a union will have effect as if made by the transferee. But, as the regulation is made without prejudice to Section 18 of the Trade Union and Labour Relations Act 1974, which provides that a collective agreement will be presumed not to be legally binding unless the parties specify that it should be, there is in fact nothing to prevent either side renegotiating or ceasing to observe any such agreement.
Regulation 7 follows the directive by excluding occupational pension schemes from the regulations. Employees' rights established up to the point of transfer are protected to some extent by existing legislation which is the responsibility of the Secretary of State for Social Services. Regulation 8 provides that, where the transfer or a reason connected with the transfer is the reason or principal reason for dismissing an employee, that dismissal shall be deemed to be unfair. The normal provisions governing unfair dismissal, qualifying periods, etc., continue to apply in cases where employees are dismissed because of the transfer. This, however, does not apply where the dismissal is due to an "economic, technical or organisational reason" entailing changes in the workforce of either the transferor or the transferee before or after a relevant transfer: in these cases the dismissal will be regarded as having been fair. The employer, however, will still have to satisfy the tribunal that he acted reasonably in treating this reason as a sufficient reason for dismissal.
Regulation 9 provides that a union recognised by
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the transferor is recognised by the transferee but makes it clear that the transferee is in exactly the same position as the transferor and any recognition agreement may be Varied or rescinded.
Regulation 10 places a duty on the employer to inform and consult, and paragraph (2) says that he has to inform the union representatives of the legal, economic and social implications of the transfer for the affected employees. "Union representatives" is our interpretation of "representatives of the employees provided for by the laws or practice of the member states That is the rather long quotation which is found in Article 6. Furthermore, the words "legal. economic and social implications" come straight from Article 6.
Regulation 11 enables trade unions to present a complaint that they have not been informed or consulted; and where it finds the complaint well-found. the industrial tribunal will make a declaration to that effect and may order compensation to a maximum of two weeks' pay to be paid to the affected employees. Any more would provide a very substantial burden on an employer with a greater number of employees, particularly as compensation may be awarded to all affected employees, not just those who are being transferred.
Regulation 12 provides that any agreement that proposes to exclude or limit the operation of the regulations shall be void. Regulation 13 deals with people working abroad and also dock workers. Regulation 14 makes some consequential amendments to the relevant employment legislation in the United Kingdom. Your Lordships will not wish me to go into further detail on those three last regulations.
In conclusion, may I summarise the main changes. At the moment, when there is a transfer of business, an employee's contract of employment is normally brought to an end. From 1st May 1982 it will be automatically transferred to the new employer. It is a major change in principle; but in practice it will not be anything like as far-reaching as some have assumed. In reality, it will matter little where the responsibility for the employees' contracts of employment lies, since any shift in that responsibility will be reflected in the purchase price paid for the business.
It will usually be the intention of the new employer to re-engage the old workforce. If the new employer is of the opinion that he will not require the whole workforce and will have to make some redundant for "economic, technical or organisational reasons" he will pay less for the firm than otherwise he would have been minded to do. Alternatively, the original employer will have made some employees redundant before the transfer to make the business more saleable. He will get more on the sale, but will have had to spend more money in order to get that greater sum. Really, it is as broad as it is long looked at from a businessman's point of view; but looked at from an employee's point of view, he is assured that in normal circumstances he is not going to be separated from a company with which he has perhaps been associated for many years because of a transfer.
The other main change is to require employers to give trade union representatives certain information connected with the transfer—and further to consult the trade union representatives about any measures that

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may be taken in connection with the transfer. There is understandably anxiety about placing an additional statutory burden on employers at this time. However, in the interests of good industrial relations, many employers contemplating a transfer of business will already be doing something along the lines that I have mentioned. I beg to move.
Moved, That the draft regulations laid before the House on 26th November be approved._(Lord Lyell.)
6.45 p.m.
Lord McCarthy: My Lords, I should like to thank the noble Lord for giving a faithful account of the reasons which the Under-Secretary of State in another place gave on Monday. Indeed, it is quite clear that they read the same brief with a similar lack of enthusiasm. The Under-Secretary of State in another place in the middle of a counter-attack by the Neanderthal men on the Back-Benches of his party, blamed the Labour Government for this nasty little thing because he said that a Labour Minister signed this directive in 1977.
The fact is that this is a progressive and radical directive and it is understandable that when the Under-Secretary of State was recommending it to his colleagues in another place, when, as I say, he was in an altercation with his own Back-Benches, he forced himself to say at column 679 of Hansard of 7th December: Yes, I am recommending them with remarkable lack of enthusiasm. So we know the attitude which the Government adopt towards these directives and regulations.
Of course this is a very limited directive because it applies only to asset mergers, whereas in this country the great majority of mergers are share mergers; and also because it comes from the European Economic Community it is shot through with the competitive assumptions of the European Economic Community. Thus it allows dismissals, as the noble Lord has said, for economic, technical or organisational reasons which entail changes in the workforce. So it is a progressive and in some ways radical directive, but it is not a very far-reaching or far-sweeping directive all the same.
Unfortunately, the regulations which are actually proposed by the Government arising out of this directive do not fully embody the principles of that directive. The fact is that the Government have given in. The Government have given in to pressures from the CBI, pressures from the small employers, and the kind of pressures which the Government usually gives in to. The noble Lord said in his opening speech that this regulation had been unduly delayed. Whose fault is that? The last Labour Government presented the incoming present Government with a draft regulation. That draft regulation was much closer as I intend to show to the 1977 directive and to the spirit of that directive than this little thing that we have here today.
The first question therefore which I wish to address to the noble Lord—and I hope that he will have a reply to this—is: Why this delay? This is especially so since this delay was the reason given by the Secretary of State in a letter to Mr. Lionel Murray of the TUC as an excuse for the fact that there have been virtually no consultations with the TUC over this directive. The Secretary of State said:
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"We would like to have consulted further on these regulations but the Commission were pressing us hard to implement the directive. We therefore had no alternative hut to lay the draft before Parliament without further delay".
Therefore my question is: Why has there been such delay? Is it not self-evident that that delay has been the Government's delay? It ill-behoves the Government to say that they cannot consult with the trade unions because they are now being pressed by the Commission.
My second question is this: In any case, why have we gone back on the 1978 draft in a number of respects, and, in particular, why have we gone back in respect of the substantive rights of trade unions? The directive speaks, it is true, of
"a right to inform and consult",
but it also goes on to say,
"with a view to reaching agreement".
I would repeat those words:
"with a view to reaching agreement".
That phrase was in the 1978 draft at Regulation 8(4). The Government merely repeat the formula in the EPA that—
"the employer will give reasons and listen to objections".
But they take out the words:
with a view to reaching agreement".
Therefore my second queston is: Why? I take it they know why they are doing this and that they appreciate that here is the Commission attempting to introduce something analogous to the United States concept of bargaining in good faith. But it means much more for a trade union if the employer has some kind of legal obligation not simply to inform but to take views into account and maybe occasionally even to move and adjust as a result of what the trade unions say. Therefore, I ask: Why in this respect should we move away from the 1978 draft?
My third question also involves a move away from the 1978 draft, because this 1981 draft refers at Regulation 2(1) to the exclusion of any undertaking—and I quote:
"not in the nature of a commercial venture".
This is a vague and strange term to English law and I am told it is bound to lead to dispute and litigation. The approach in the 1978 draft was a very considerable improvement on 2(1). At Regulation 3(4) it spelt out the actual exclusions which were to count as a noncommercial venture: for example, charitable bodies, government departments, local authorities and so on. The implication—I would say this was fair enough and I should like the noble Lord to tell me why it is unfair—was that, if one did not specify in the draft what was a particular non-commercial venture, then the worker got the benefit of the doubt. If it was not there, then the chances were that it was covered by the regulation; and in any case one was not going to have an endless legal debate about the meaning of profit and the limits of commerce and so on. Therefore, my third question is: Why have we in this respect gone back on the 1978 draft?
My fourth question also refers to the 1978 draft. It refers to the exclusion of protection on grounds of unfair selection for redundancy. The 1978 draft said at Clause 6(2)(b) that, despite the fact that you could

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dismiss, as the noble Lord has said, for economic, technical and organisational reasons—one cannot complain about that; it is in the directive—it would still he unfair if one were unfairly selected for redundancy upon the provisions specified in the EPA. This is now replaced by the gobbledegook of the new Regulation 8(2)(b). I should like the noble Lord to tell me what the gobbledegook of 8(2)(b) means. My question is: How does the new 8(2)(b) protect against unfair selection for redundancy? Or perhaps it does not. Perhaps it does nothing at all. In any case, why not use the simple words of 6(2)(b)?—unless the Government want to welsh on their obligations under the directive.
It is late, and one could go on giving many more examples of this directive. One could say, for example, that it does not apply to single ships and it says nothing about pension rights, and so on. I want to fasten on to one more case where it is inferior to the 1978 draft, and this brings me to my fifth question. The 1978 draft said at Regulation 4(1)(b) that the regulation covered any other contract—and I quote:
"which is connected with that person's employment"
That was intended to cover any other rights, one might say, that could be laying around: common law rights for unlawful dismissal, equal pay rights, non-discrimination legislation and so on-all those rights which are, in the strange ways of English law, embodied by implication. Therefore, there might be some debate about whether they were entailed as a result of the draft, and so the phrase
"which is connected with that person's employment"
was put in to make sure—another small benefit of the doubt given to the workers. I should like to know why that simple phrase has been exluded from the 1981 draft at Regulation 5(1), because 5(1) is the 1978 draft's 4(1)(b) without that phrase. I ask, why? Why has that been done?
That brings me to two final questions which are perhaps the most important of all. The noble Lord has spoken about the new paragraph 4 and how it seeks to deal with hiving down—the liquidator's or the receiver's famous neat commercial package, whereby he can save something from the wreck, often at the expense of the employees. This is the practice of hiving down which has been generally condemned as part of the unacceptable face of capitalism, and indeed it was involved in the famous Lonrho case. It is unclear how far the Government really seek in this regulation to protect workers in circumstances of hiving down. It is doubtful how far existing employee rights are protected and how far this part of their regulation is in conformity with the EEC directive.
The Under-Secretary of State has said, and the noble Lord has said this again today, that it does do something by treating hiving down as a suspended transfer where, if a purchaser is found, the contractual and other rights are inherited by the purchaser. But it is unclear, and I should like it spelt out to me why this happens in terms of the actual words used in Regulation 4(1), because 4(1) concentrates on holding back a transfer. It does not specify precisely what rights may he transferred. We are not told whether there is any necessary right to re-engage, for example, as a result of these provisions. We are certainly not told
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about how others will fare when hiving off takes place. We are not told who is engaged, why they should be engaged, or the criteria on which they will be engaged. I think there is a sense in which this is in direct contradiction to Article 3(3) of the directive which says, and I quote:
"Member States shall adopt the measures necessary to protect the interests of employees and of persons no longer employed in the transferor's business at the time of the transfer within the meaning of Article 1/".
I suggest there is there a general obligation to do something, not simply for those who go into the hiving down but those who do not. Therefore, my question is this: Is that what the Government intend, and, if so, why do they not say so?
The point could be put another way round. In the well-known article on hiving down in the Industrial Law Journal of 1980, Davies and Freedland suggested that one could deal with hiving down by a simple provision: where hiving down occurs the obligations to the employees could be transferred to the transferor. They could be inherited in fact. My question is: Is this the case? Is that what the Government have tried to do? If not, is it not what the directive suggested they should do? If so, how can one reconcile this with the Secretary of State's letter to the Trades Union Congress, or rather the addendum to that letter, when he said:
"I do not agree that this practice acts against the interests of employees. On the contrary, it enables jobs to be saved (through the preservation of viable businesses) which would otherwise be lost on the winding-up of insolvent companies".
He went on to say:
"Regulation 4 is the result of informal discussions"
I am told that they were extremely informal and very long—
"with officials of the European Commission, and we have no doubt that it protects the interests of employees. At the same time, we are confident that it fully implements the intentions of the Directive"
I do not see how that can be the case, in the light of those passages in the directive which I have quoted.
My final question, question no. seven, relates to the question of compensation where there has been a failure to inform or consult a trade union. The noble Lord said that, in general terms, these regulations, from the point of view of employers in British industry, are as broad as they are long. But, if they are as broad as they are long, how can the noble Lord defend this pitiful compensation because the employers cannot afford any more? The noble Lord cannot have it both ways. This cannot be as broad as it is long from the point of view of inducing changes and mergers and hiving down. The noble Lord says that in order to reassure his own Back Benches and, at the same time, says," Of course, we could not possibly give any more than this pitiful amount of two weeks, which we then deduct from anything else which one gets".
Once again, the 1978 draft is the moral one. In Regulation 9(6), the 1978 draft said:
"'Appropriate' compensation means … such sum as the tribunal considers just and equitable, having regard to the ability of the employer to comply with his duty and any loss sustainable".
That is not a revolutionary phrase. That is the time-honoured formula, including the need for the employer actually to show that there has been loss and, pre-

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sumably, to seek to mitigate loss. But the 1981 draft, in Regulation 11(11), limits this compensation to two weeks' pay—although it is as broad as it is long. Why two weeks' pay? And worse, Gradgrind is personified in what follows. In regulation 11(7)(a), we are told that what is obtained in this way goes to discharge any protective award made as a result of the EPA, relating to the absence of notification of redundancy or liability for breach of contract during the period of a protective award.
My final question is: why should this be? There are different liabilities here. There is a failure to inform on the transfer of an undertaking which need not involve redundancy. If it does, this is a separate issue. The truth is, of course, that this is one more example of the sense of equity and justice of these committed Europeans. The fifth directive is not even discussed any more. No one proposes any statutory rights at board level. The draft directive on consultation, which has been discussed in this House, is attacked and is clearly designed to go the same way. This directive is written down in all the ways I have specified, in any way it can be, to produce a regulation; and, of course, this regulation is kept until the EEC demands that something be done about it. Yet, at the same time—as Shakespeare would say, in another part of the forest—if the European Court takes decisions which can be used as a pretence to legislate further about the closed shop, we get immediate legislation.
If, next year, the Secretary of State in another place tells us, as he undoubtedly will, that the trade unions of this country are in a privileged position, because their rights take the form of immunities against actions in tort, no doubt we shall he told yet again that, in some way or another, they are better off than their European counterparts. The fact is that now in most European countries, on the whole, there is, from the trade unions' and workers' point of view, a better, a more expansive, a more substantial and, a more firm framework of individual and collective rights. The committed Europeans cannot give us any of these rights, not because trade unions are too powerful, not because giving them these rights would make them too powerful but because it is an essential part of the Government's policy to try to destroy any rights that they have.
So I finish by asking again, so that there shall be no misunderstanding, my seven questions to which I hope the noble Lord will be able to supply me with answers. First why the delay and lack of consultation? Secondly, why no inclusion of Regulation 8(4) with a view to reaching an agreement? Thirdly, why did the Government not spell out the meaning of "noncommercial" in Regulation 3(4)? Fourthly, why was there no protection given for unfair selection against redundancy in Regulation 6(2)(b)? Fifthly, why is there no equal right, as in 1978, in Regulation 4(1)(b)? Sixthly, on Regulation 4 on hiving-off, why not the formula of Davies and Freedland? Seventhly, why this pitiful compensation, and why should we pass these regulations?
7.6 p.m.
Lord Wedderburn of Charlton: My Lords, I apologise to the noble Lord the Minister for missing part of his speech, which was caused by the failure of an under-
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taking to transfer me here through the traffic. But my noble friend Lord McCarthy has encouraged me in what he has said, and, from what I have been told about that part of the Minister's speech which I missed, that which I wished to say in this debate has not yet been fully dealt with.
This is not a matter which can simply be regarded as a small, end of the day, after-school activity. This is a matter which illustrates, first, how regulations of this kind have profound constitutional dangers by amending the laws of the United Kingdom by orders which are not amendable, not open to the normal processes of Parliament, on a question which is absolutely fundamental. No doubt, the noble Lord the Minister does not appreciate that that is so, but perhaps I could explain why I think that.
These regulations include, as their central idea, the transfer of a contract of employment by law without consent. It is perfectly true that that is done under the directive and the regulations, in the avowed interests of working people where there are transfers; and there can be no doubt at all about the intention of the directive in that respect, if one reads it. Nevertheless, we are offering to the law a principle which detracts from the notion, which Lord Atkins said in 1940 was fundamental to our law, that, without consent, a servant or employee should not he transferred from one employer to another, because that is what divides the employee from the serf.
Here the regulations transfer him in his own interest. That is the theme of the directive, but it is not the theme of these regulations. It was the theme of the 1978 regulations. The Government have mangled and mauled the regulations drafted in 1978 in a way which, at every single point, detracts from workers' rights and, at one point, makes clear that they are increasing employers' rights. They snatch away the rights which were intended by the directive, like some bicycle thief snatching purses in the night.
I ask your Lordships to take consultation and information, to which my noble friend has referred. If the employer fails to consult, what is the remedy?—two weeks' pay. But only the good employer will have to give two weeks' pay. The really bad employer, who has dismissed an employee wrongfully and has failed to consult on proposed redundancies under the 1975 Act, will not have to pay anything at all. There is no extra obligation on him, because those sums which he has to pay go to diminish—as my noble friend suggested they do—the compensation which he otherwise might have to pay under Regulation 11, with the absurd maximum of two weeks' pay.
There are two other ways in which this regulation is defective, under the heading of consultaton. The directive requires that the employer shall inform the employees in good time before the transfer is carried out—Article 6. That clearly envisages time for negotiation while the transfer is at the proposal stage. Indeed, the Government have said many times that their model for these regulations is the pattern laid down by the Employment Protection Act 1975, where the employer must consult about proposals for redundancy. But these regulations say that, long enough before the transfer to enable consultations to take place, the employer shall inform the trade union of the fact that the transfer is to take place. That is not

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the language of negotiations about proposals. Or if it is, why does it not say "about the proposed transfer"?
It is a scandalous violation of the intent and perhaps the letter of the directive to say in Article 6 that the employer must consult with the trade unions in good time. The directive says, "with a view to agreement". The 1978 regulations also said, "with a view to agreement". Why have the Government dropped the obligation on the employer to have a view to agreement? Because elsewhere they are going to say, as they have always said over the last months, "We are only enacting the words of the directive". Some of the paragraphs and regulations which are gibberish are gibberish because the Government could not be bothered to translate the words of the directive. Euro—jargon sometimes goes well into the law of France and of Germany. It rarely goes well into English law. That is not a point against the directive or the Community. It is just a simple matter of fact. Any lawyer knows that simply to take the words of a directive and put them into an English Act is extremely dangerous. Whether or not that is true, why have the Government dropped it?
If this House accepts these regulations, as I am told that, according to procedure, it must—an illustration of the way in which the function of this House is pretty meaningless on these occasions, but I am going to make the points I want to because they should be on record—then it is accepting a deceitful sleight of hand, a breach of the treaty obligations. Why? Because it does not enact the directive. As one goes through it, one sees how much that is true. As my noble friend has suggested, there is a feeling that the directive is in a sense misdirected in England because more of our mergers take place by way of takeovers of shares than by way of takeover of assets. Elsewhere the proportion is not the same. Therefore to leave out takeover of shares is to leave out the Prince of Denmark in the play.
But having found that the arrangement might be called a bit of a nonsense in Britain, nevertheless the 1978 regulations tried to make the best of it. These regulations do not. As my noble friend said, they exclude undertakings which are not in the nature of a commercial venture. I repeat his question to the Minister: why was the very careful definition in 1978 of undertakings not of a commercial nature dropped from these regulations? The Minister might also like to answer this question: is the London Passenger Transport Board, or the London Transport Executive, as it now is, a commercial undertaking? Or do we have to wait for Lord Denning or the noble and learned Lords in the Appellate Committee to tell us? We should like to know the answer to these questions, together with answers to all the other questions which the TUC has raised. For instance, is the ordnance survey outfit a commercial venture? Why could not the Government be bothered to define something, as was done in the 1978 regulations?
Regulation 3(4), in a long series of words, speaks about the transfer, in two or more transactions, of an undertaking, or a part of it. I should like the Minister to tell me—I can think of one—how many instances he can think of where there are two or more transactions where each does not transfer one part of the undertaking.
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This is a new regulation. Why is it there? And why is it in the form that it is? I understand it for two transactions for the whole undertaking, but two transactions transferring one part is very difficult to understand. It will give rise to litigation. It is not made at all clear whether the part also is to be a going concern. These matters were debated around the 1978 regulations which, in my view, were defective and needed amendment. They had not been finalised. The Government had the advantage of the discussions which went on at that time and I am sure that the noble Lord read them carefully.
In regulations which purport to transfer obligations of the employer and employees' rights from transferor to buyer, the directive requires—this is a fundamental point—that the rights concerned arise from a contract of employment or from an employment relationship. The conjunction is all from an employment relationship —Article 3. But the regulations do not do this. The 1978 regulations on this were not perfect. Regulation 2 that we are being asked to consider defines a worker only in relation to contracts of service or apprenticeship. This leaves employment relationships outside the contract of employment, except apprenticeships. Why? That violates the directive. Even for employees, the regulations contain an absurd ambiguity. At Article 3 the directive speaks throughout of "employment relationship but Regulation 5 of these regulations transfers rights and duties,
"under or in connection with the contract of employment".
It is the plain intention of the directive that all workers'
rights which are within the employment relationship should be transferred.
This matter has been raised again and again with the Government. Some statutory rights are plainly not under a contract of employment. That is, workers' rights under safety legislation are statutory and do not come within the contract of employment area, so these will not get transferred. Why not? Some are within the contract of employment. Rights under the Equal Pay Act are, by statute, within the area of contractual rights. There are others—rights to redundancy and unfair dismissal in particular—where in the last few years the employment appeal tribunal has left the law, unhappily, rather in doubt. In one case in 1977 they spoke of unfair dismissal rights as arising,
"altogether outside the existing contractual relations between employers and employees",
whereas in another case in 1978 the employment appeal tribunal, speaking of the rights to unfair dismissal said:
"The rights, though creatures of statute, in our judgment depend on, or arise from the contract just as do … common law rights".
There is an ambiguity in the law and very important rights are at stake.
Why did the Government not make it clear? It is not clear in the language used. I know of no lawyer in this area who thinks that the language is clear. I know that there are others who hold a different opinion, but that is just good for litigation, not for law. Why did not the Government make it clear and say that the rights arising from the employment relationship under statute were to be transferred, too? This is yet another example, as is the regulation dealing, as my noble friend mentioned, with the exception from

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the rights of workers not to be unfairly dismissed. They not only are not automatically to be unfairly dismissed but the employer has to give a substantial reason for dismissing them when he dismisses for economic, technical or organisational reasons entailing changes in the work place.
It is the Government's case that they must enact that Euro-jargon. I say to them that it is a perfect example of what, over the last three years, most people have come to understand should not be put on the English statute hook. It will give rise to a line of obscure judgments and considerable litigation. Although the Government are right in saying that these are the words of the directive it is the job of the Government, faced with the directive, to make sense of it in their own jurisdiction. It is slovenly and it is idle simply to take the words from the directive and put them on the statute book.
If one looks at the recognition of trade unions—my noble friend did not deal with this point, so I will, though I shall omit some of the points with which he did deal—one finds that the regulations pick and choose between the various possible ways of enactment in such a way that workers' rights are to be put aside and industrial relations left to flounder. Under Regulation 6 there is to be a transfer of collective agreements. With that, under Regulation 9 there is to be a transfer of recognition arrangements with trade unions. At first sight this may sound fine. The directive requires that there should he transfer of collective agreements and transfer or recognition, but what does the Government intend should come from that?
In another place three days' ago the Minister said that his right honourable friends need not worry about this (cols. 679 to 681, Hansard, 7th December) because the collective agreement was not legally binding, and so it could just be ignored if they could get away with it; and on recognition after the 1980 Act, which repealed the powers of ACAS in such situations as gave rise to Grunwick, there is no legal obligation to recognise and he could of course revoke recognition anyway if he could get away with it.
So really the right honourable gentleman suggested that the directive in our case of the regulations did not change anything at all. That is a very shocking argument, because the directive means to change something and most certainly it is wrong, because very often the collective agreement will be incorporated into contracts of employment and those contracts of employment will contain collectively agreed terms. Those cannot be put aside if the contract of employment is transferred. I ask the noble Lord the Minister whether he does not accept that Regulation 6 could have been improved if it was made clear that it allowed for the normal case of the incorporation of collective terms into the individual contracts which are being transferred.
I must add—because it is necessary to say it and I doubt whether the noble Lord the Minister said this, and I know that my noble friend has not—that these regulations are typical examples, also, of introducing more and more confusion into labour laws. This is an extra reason why the matter should have been dealt with by a Bill. It should not have been dealt with by regulations. They have the right to deal with it
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by regulations, but that gives them the argument they have used extensively; that is, we cannot do more than we are obliged to do by the directive. Once it is done by regulations, Parliament cannot amend it and the Government always have the answer when one asks, "Why did you not put in this to make sense of it"? They answer, "In a regulation, under the 1972 Act, we can put in only what we are obliged to enact", and so Parliament gets the worst of both ends of the stick, and so does industrial relations.
If I may give an illustration of this, there are at the moment three different definitions which one has to look at if one is concerned with the transfer of business. There is one under the 1978 Act which concerns redundancy rights. There is a slightly different definition concerned with continuity of employment in the same Act and schedule. There is a different definition for the successor employer for various purposes relating, for example, unfair dismissal, in the 1974 Act. We can just about get by with those, although they are in a bit of a mess and they need consolidation. But these regulations add yet a further concept of the transferee of a business, which no one has even bothered to relate in a sub-paragraph, which could be very easy to draw up, to any one of those definitions. We do not know exactly how they overlap and when they do not.
There is one place where the Government took time. My noble friend has said something about this, but I wish to support him with a few words. It is, of course, hiving down; the practice which has mushroomed, whereby the business or a part of it is sold to the wholly—owned subsidiary but the employees remain with the parent company until it is profitable to those who are buying, and in some cases those who are selling, to transfer them or not transfer them as the case may be. Regulation 5, if unamended, would have forced their transfer on to the purchaser. I can quite see that the complications of hiving down may well demand some special consideration of the regulation. But Regulation 4 is doing nothing but weeping crocodile tears for the concern of workers' rights. This regulation allows with only marginal greater difficulty the hiving down operation still to do what the Employment Appeal Tribunal in 1978 so severely criticised.
I am sure that the noble Lord the Minister will have in his papers the judgment of the Employment Appeal Tribunal in the Brentford Nylon case in 1978. The Employment Appeal Tribunal very gently, and with some hesitation, suggested ways in which workers' rights should be protected. Would the Minister deny that the proposals and safeguards even made there hesitantly by the court and made by others such as Davies and Freedland, which my noble friend cited, are not in the regulations? Would he deny that it is only marginally more difficult now, by dismissing or arranging to dismiss workers rather earlier than in the normal hiving operation, for their rights not to be safeguarded by these regulations? Would he deny that it was the intention of the directive to protect workers' rights in a manner which the regulations singularly fail to do? The one place where they have really gone to town with new law is on hiving down. It does not benefit the workers, and that is true of the rest.

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These regulations do not satisfy the directive. They invite litigation in the European Court. They create a nightmare of confusion in various areas—in more than I have cited. In employment and industrial relations law, they restrict the rights which the 1977 directive expressly wants to give workers. They are put forward in a manner either of ignorance or effrontery or both, because, on the basis of four years' study and the 1978 regulations draft, which is not perfect, the Government could have produced a reasonable document, even allowing for their own constituencies and preferences. They have not done so and these regulations are hopelessly mis-titled as being concerned with the protection of employment.
7.27 p.m.
Lord Lyell: My Lords, I am sure that your Lordships' House will be very grateful for and fascinated by, if I can so put it, two 20-minute tutorials explaining the very close details of the regulations that I have attempted to present to your Lordships tonight. Even with the relationship that the noble Lord, Lord McCarthy, and I enjoyed 21 years ago, I hope that he will bear with me when !attempt to answer as many of the points as possible made in what he generously described as seven questions. f just wish that the noble Lord had been here yesterday to hear about things known as multiple independent re-entry vehicles, because the noble Lord attached five or six separate points to each of his individual questions to me. Nevertheless, I shall attempt to take those questions in order. Certainly so far as some of the questions which have been raised by the noble Lord, Lord Wedderburn of Charlton, are concerned I shall do my best to take some of them, but I hope he will forgive me because at least three went over my head. We shall have to study his remarks and I hope that he will, in his usual courteous way, allow us to be in touch with him later.
The noble Lord, Lord McCarthy, started by blaming what he called the Neanderthal man or Members of another place who sit on various Benches—I assume on all sides—who dare to blame the labour Minister for the delay in implementing the directive and bringing in these regulations. Indeed, the gist of the remarks made by the noble Lords, Lord McCarthy and Lord Wedderburn of Charlton, was to highlight the differences between the 1978 draft regulations and the regulations which we are discussing this evening.
If I may take the first question put to me by the noble Lord, Lord McCarthy, the delay in presenting the regulations which we see before us tonight was for the one very good reason that the previous Administration did not hand the present Government the final draft. The delay before that was due mainly to further consideration of the 1978 regulations and, of course, the particular problem of what we still believe to be the valuable practice of hiving down. I would say further that the 1978 draft is dated June 1978 and, as your Lordships will be aware, an election followed in May 1979. If the Administration which was supported by both the noble Lords who have spoken this evening believed that this was of the paramount importance which both noble Lords have indicated, I suggest to them both that it behoves them not to cast aspersions on this Government for failure to implement the 1978
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draft agreement with all its imperfections. I believe this Government have fulfilled their obligations under our European commitments. We have come up against one or two problems; and I freely admit that in regard to hiving down, which does have very great advantages to workers who might otherwise be unemployed, we have had problems.
The noble Lord, Lord McCarthy, raised the problem —Regulation 8(2)(b)—of what he called economic technical and organisational reasons. This is taken straight from the EEC directive and certainly it covers redundancy, and the employees' usual rights to redundancy payments will apply in this particular case.
Lord Wedderburn of Charlton: My Lords, may I ask—
Lord Lyell: Well, my Lords, may I attempt to finish with the points that have been raised by the noble Lord, Lord McCarthy? I hope the noble Lord, Lord Wedderburn, heard those points in spite of the vagaries of the London Passenger Transport Board. I fear that we shall be here much longer than we would want to be if I deviate from the track I am attempting to follow in trying to answer Lord McCarthy's questions. Some of the answers may cover points raised by the noble Lord, Lord Wedderburn. If he could wait until I have covered Lord McCarthy's questions we might obtain clearer answers, and. I would hope, save a little time. I hope the noble Lord will bear with me.
The noble Lord, Lord McCarthy, raised the point of why we have a change in the definition of undertaking "and why we are excluding those undertakings not in the nature of a commercial venture. I hope this might also go some way to helping Lord Wedderburn in regard to whether various organisations are covered under this particular definition. Regulation 2 follows the EEC directive, which applied to all activities of a commercial or economic nature. I scarcely need remind the two noble Lords that the effect of the 1978 draft was similar, since Regulation 3 then contained provisions excluding undertakings which were carried on "otherwise than with a view to profit" by government departments and local authorities as well as charities. Since then we have been advised that all activities of a non-commercial nature are outside the scope of the directive.
The noble Lord also raised the question as to why the definition of "the employee" and the "contract of employment" are different. The directive covers "employment relationships"—that is how it is mentioned in the directive—as well as "contracts of employment". These wider definitions of "employee" and the "contract of employment" are to embrace the wider concept of what appears in the directive as "employee relationships". I would stress that the 1978 draft, admitted by Lord Wedderburn to be not entirely perfect, certainly did not cover this particular point to any great degree.
The noble Lord, Lord McCarthy, made reference to "a view to seeking agreement". In Regulation 10 we have dealt with what is classified as consultation under the regulations, in just the same way as consultation was dealt with under the redundancy handling provisions of the Employment Protection Act 1975.

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I am sure that will be more familiar to the two noble Lords than to many others in your Lordships' House. This particular Act of 1975 implemented the Community directive on collective redundancies. These were introduced by the previous Labour Administration.
Lord McCarthy: My Lords, is the noble Lord really suggesting that two wrongs make a right?
Lord Lyell: My Lords, I would never for one moment suggest that. But the noble Lord's Administration brought this in in 1975. It may be there were some imperfections. Well, they had every reason and all the time in the world to correct them. Above all I would stress that the Employment Protection Act 1975 implemented the Community directive on collective redundancies. This particular directive required that consultation should be "with a view to reaching agreement". I think that is a very important point. Doubtless it will be fastened on to by the noble Lord, Lord Wedderburn. I dread to think of it being fastened on to outside this House and bandied about in law journals. But I understand that the Community directive on collective redundancy mentioned "reaching agreement", not "seeking agreement". This particular phrase "reaching agreement" does not appear in our redundancy handling provisions, but instead Section 99 of the 1975 Act sets out some guidance as to what consultation should at least consist of.
We have taken an entirely similar approach in these regulations as the previous Administration took with the redundancy handling provisions. We share with the previous Administration the view that,
"agreement with a view to seeking or reaching"
is unnecessary. If the previous Administration took that view, and presumably they were satisfied with that section of the 1975 Act, we would be happy enough with it as well.
The noble Lord, Lord McCarthy, further asked me about the transfer of employees' rights. We certainly do not think there is any room for doubt that the statutory rights—such as equal pay and rights relating to sex discrimination—will be transferred by virtue of paragraph (2) in Regulation 5, since such rights are covered by the wording,
"in connection with any such contract of employment".
The provision in the 1978 draft about joint and several liability was omitted because it was thought that such a provision would be ultra vires the enabling power in Section 2(2) of the European Communities' Act 1972. The enabling power only permits implementation of an obligation under the directive. The second limb of Article 3, para. (1) does not create an obligation, and therefore this particular provision would have been null and void.
The noble Lord, Lord McCarthy, in his comments on Regulation 4, dealing with hiving down, believes that it fails in several instances to implement the directive. That was among several criticisms that he expressed. I would remind him and his noble friend, and indeed all your Lordships, that the transfer to the hived down subsidiary is only significant if the subsidiary is sold, in which case of course the regulations apply in full.
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Both noble Lords mentioned this and clearly appreciated that the regulations apply when a subsidiary is sold and when there is in fact a different employer. But if no purchaser is found, of course the employees' jobs will inevitably be lost. They will be protected by the redundancy payments provisions and indeed the insolvency provisions of current employment legislation. But without the provision that we are introducing in Regulation 4, hiving down—the practice which noble Lords who have spoken seem to find so objectionable—would cease.
However, I would remind them—and they have great responsibilities since they wish to criticise this particular practice—that, if this process of hiving down were to cease, there would be a consequent loss of jobs. Solvency practitioners are convinced of that and, indeed, the whole practice of liquidators and receivers is bent to seeing that, so far as possible, the business can be continued in fresh hands. Above all, if the business can continue, then those employees' jobs would be saved which would otherwise have been lost.
The noble Lord, Lord McCarthy, continued his attack upon Regulation 4 and he even mentioned that it was a bad practice. Certainly the noble Lord, Lord Wedderburn of Charlton, suggested that I should consult the judgment in the Brentford Nylon case. Certainly we have looked into this matter and the judgment very carefully. But I would reiterate that hiving down saves jobs by keeping going the viable businesses which otherwise would be wound up. Of course receivers and purchasers of the hived down business will not be able to avoid their responsibilities under the directive, and the employees are protected both under the regulations and, I stress, under the existing employment legislation. There would be no point in trying further to protect employees if the result was that no hiving down took place and they simply lost their jobs. That is why we believe that Regulation 4 and the practice of hiving down is very valuable as far as the employees are concerned.
The noble Lord, Lord McCarthy, raised a point—and I think he used some quite colourful language—about the compensation which we find in Regulation 11, paragraph 11, which, as we can see, is up to two weeks' pay. We have found that tribunals, above all industrial tribunals, needed clearer guidelines on which they could base compensation. We think that the amount which we have specified now draws the right line between providing sufficient additional compensation for the employees and placing too great a burden on employers, especially in cases where many employees are affected.
The noble Lord, Lord McCarthy, also mentioned a Paul Davies article in the Industrial Law Journal, with which I have to admit I am not familiar. I am sure that your Lordships will forgive me. I try to keep up with some law but not necessarily with specialist articles in the Industrial Law Journal. I understand that the article in question, far from being entirely critical of our treatment of the technique of hiving down, contains some useful comments which accord with the drafting and the principles of Regulation 4.
I can say quite definitely that I have gone as far as I can in answering the seven main questions which were fired at me by the noble Lord, Lord McCarthy.

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But I would stress to him and indeed to your Lordships that everything that he and his noble friend have said tonight will be very carefully studied and if I have missed some points—as I undoubtedly must have done—we shall do our very best to give them full satisfaction probably in writing.
I turn next to the noble Lord, Lord Wedderburn of Charlton. I am sure that your Lordships were fascinated by the additional critique, indeed I would call it a free tutorial. The noble Lord raised the problem of "Euro-jargon"—it might even be attributed to him not just in your Lordships' House but in law journals and in other learned organs of communication. "Euro-jargon" is uncomfortable but certainly we have made the very greatest efforts to equate our own regulations with the directive both in content and in clarity of expression. Indeed, the noble Lord may have his own opinion about what he described as and I think I quote him—"the deceitful sleight of hand". I do not think that that is a charge which will stick certainly on the Government in attempting to equate the directive with the regulations that are before us today.
One of the first points raised by the noble Lord, Lord Wedderburn, was that we are giving effect to the directive—and again I would quote him—"by order". He pointed out that orders were not amendable. I understand that this is the practice in your Lordships' House and I would give my humblest apology if he was not aware of that fact. But I understand that that is the custom and that it has been the practice for many, many years. So I hope that the noble Lord will bear with me on that particular line.
The noble Lord, Lord Wedderburn, raised one more point as regards Regulation 10, paragraph 2. He wondered whether mention of the word "fact" means that the transfer has to have been settled. Certainly an employer would not be able to argue that he had been unable to fulfil his obligations to inform and to consult because the transfer had not become an established fact. Certainly the trade union would be likely to complain if it is quite clear that the proposals had been around for some time. Indeed, I am sure that the noble Lord, Lord Wedderburn, would recognise that if this case came before any tribunal, that tribunal would take due account of that particular fact and what had been said and, indeed, the knowledge that a transfer was likely to take place.
The noble Lord, Lord Wedderburn, also raised a point—and again he used some fairly colourful language—about Regulation 3 paragraph 4. He spelled out his point of view and said that this covers transfer by more than one transaction. I would hope to try and assist him by mentioning that this was included to prevent employers from avoiding any of their obligations if they might wish to do so, by transferring their assets in small parts each of which in itself could not be considered to be an undertaking as defined in the regulations. I am a trifle surprised that the noble Lord should complain about this regulation which increases employees' protection in this particular way.
As far as Regulation 5 is concerned, the noble Lord, Lord Wedderburn, asked about the transfer of statutory rights. I am happy to confirm to him and to the noble Lord, Lord McCarthy—indeed to all your Lordships—that statutory rights are transferred. I
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think that the noble Lord, Lord Wedderburn, also raised the question of safety regulations. Clearly, he has in mind different regulations from what I understand to be the case, and I suspect the rest of your Lordships, in that it seems as plain as a pikestaff to me that safety regulations would not be transferred with the employee, but they certainly would exist at that place of work—wherever the employee went to work. The noble Lord disagrees with me. I have no doubt that he is right. I would defer to his great knowledge, but I would stress that the statutory rights about which he was asking, are transferred and certainly the regulations do not affect existing legislation. Above all I would mention paragraph 17(2) which he will find in Schedule 13 to the 1978 Act. That provides for continuity of employment for statutory purposes in the circumstances covered by the regulations. But I would stress that the regulations provide for contractual continuity as well.
The noble Lord, Lord Wedderburn, spoke quite strongly about Regulation 6. I would confirm to him that any provisions of collective agreements which related to individual employees will continue to apply, and this would, of course, include such things as disciplinary procedures, grievance procedures and so on, but not the agreements relating to pension arrangements, which your Lordships and, indeed, the noble Lord, Lord Wedderburn, w ill see are excluded under Regulation 7.
However, we would also stress that collective agreements are not normally—and the noble Lord w ill know this very well himself—legally enforceable in the United Kingdom. The regulations put the new employer in the same position as the old employer, so that he can withdraw from an agreement or he can renegotiate it at any time. I have attempted to cover the myriad of questions which have been asked of me by both noble Lords who have spoken. I have no doubt that I have missed one or two points: I crave the indulgence of your Lordships' House for missing the points. I would stress again that everything that has been said by both noble Lords will be very carefully noted, and, if I have missed any points, we shall certainly do our very best to cover them and, I hope, give some satisfaction.
Lord McCarthy: My Lords, before the noble Lord sits down, will he allow me to say that he has mentioned, though not answered, my questions one, two, three, six and seven, mainly by repeating the examples from his speech, but he has made no attempt to answer my questions four and five. Would he think again and give me answers in writing particularly to questions four and five? The noble Lord is very fond of referring to our long ago tutorials and the essays that he read to me. Perhaps he w ill recall that after he had finished reading an essay I sometimes said to him, "What did you read for that essay?". Well, he did not read the directive.
Lord Lyell: My Lords, I should like to thank the noble Lord very much for the spirit in which he has glossed over the errors and omissions that I made this evening. I also recall that the noble Lord very frequently said to me, "You have done a great deal of work, but you have not really answered the question".

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That might be true. I have certainly done much better than I used to 21 years ago. However, given that, I would thank your Lordships for your forbearance and tolerance for listening for so long this evening.
Lord Wedderburn of Charlton: My Lords, before the noble Lord finally sits down, as I restrained myself and did not interrupt him when he preferred to go through his speech, perhaps I could put to him a point of which no doubt he will want further notice. Could he perhaps in some way clarify the question which I understood my noble friend put to him when he answered a different question? In regard to Regulation 8(2)(b), he said that there was no question about compensation for dismissals by reason of redundancy. But that is not the point. The point is whether or not this regulation does implicitly what the 1978 regulations did explicitly, and that is safeguard the rights of the employee who is dismissed unfairly by reason of an unfair selection in a situation of redundancy. That is a totally different point—unfair selection in a redundancy situation and not dismissal by reason of redundancy. The 1978 regulations dealt with this. It is the view of many, many people that these regulations do not. I did not include that in my speech, but my noble friend did. I do not think that the Minister has answered the point, so perhaps he could give some undertaking to look at it again.
Lord Lyell: My Lords, I shall gladly give that undertaking. I repeat: I shall glean every word that has been spoken tonight; I would stress to your Lordships that the comments which have been made have been colourful and useful, and I shall gladly give undertakings to both noble Lords that, to the best of our ability, we shall answer their points.
On Question, Motion agreed to.