Lords Sitting of 2 July 1981

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

Civil Defence: Progress
Lord Clifford of Chudleigh: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they are satified with the progress towards civil defence since the appointment of a co-ordinator at the end of last year and the more recent Home Office memoranda on the subject.
The Parliamentary Under-Secretary of State, Home Office (Lord Belstead): My Lords, considerable progress has been made since the announcement on the home defence review by my right honourable friend the Home Secretary on 7th August 1980. The effort is continuing and much remains to be done. Air Marshal Sir Leslie Mayor was appointed as the coordinator of civil defence voluntary effort, an aspect of our planning to which Her Majesty's Government attach the highest importance. He is making good progress with his review of what is required and will be issuing further guidance to local authorities in the near future.
Lord Clifford of Chudleigh: My Lords, may I thank the noble Lord the Minister for that reply? May I ask him two questions: What steps are the Government taking to counter the misleading statements being issued by the CND and kindred organisations working against home defence? Secondly, what steps are the Government taking to ensure that local authorities fulfil their home defence obligations? For example, where they have decided not to continue with home defence planning or where, more money having been made available by the Home Office, cuts are being imposed by other departments.
Lord Belstead: My Lords, regarding the first point that the noble Lord put to me about those who do not believe in the need for civil defence, the Government have taken practical steps. We have made increased finance available. In publishing the booklet Protect and Survive, we have made the general public more aware of what they can do to help themselves. We are setting in hand the modernisation of the United Kingdom Warning and Monitoring Organisation, an acceleration of the construction of decentralised headquarters and the expansion of training facilities at the Home Defence College. All those things and many more we are doing as matters of practical steps. On the matter of encouraging and keeping in close touch with local authorities, another circular was sent out to local authorities on 20th March this year.
Lord Shinwell: My Lords, is the noble Lord aware that we are grateful for his language but not for the action of the Government? If he were able to say how many local authorities have plans in their possession and that these plans can be readily implemented, that would remove the apprehensions which exist among the general public. Is he aware that there is no evidence that the public are grateful for what has been done?
Lord Belstead: My Lords, I agree with much of what the noble Lord says in expressing his concern about these matters. But one of the most practical things that the Government could do at a time of severe economic cutback was to make available some more money. This is precisely what we have done. Supported by 75 per cent. grant, we have made it clear that the national civil defence expenditure will be increased by about 60 per cent. to £45 million annually by 1983–84.
Lord Renton: My Lords, owing to the important part which volunteers could play and are keen to play in our civil defence arrangements, and owing to the undertaking given about this matter by my noble friend's predecessor in looking after civil defence, Mr. Leon Brittan, as long ago as last autumn, could my noble friend say when we are likely to get the Statement affecting volunteers? Will the matter then be the subject of a Statement in both Houses of Parliament?
Lord Belstead: My Lords, I cannot give the exact date when the circular, to which I referred in my original reply, on the important activities of volunteers, will come out. I hope the very fact that the appointment of Air Marshal Sir Leslie Mayor has been made will indicate to my noble friend who is so closely involved in this work that the Air Marshal will not, as indeed he never has in the past, let the grass grow under his feet.
Lord Brockway: My Lords, may I ask the Minister this question: Is not scientific opinion increasingly coming to the conclusion that there is no civil defence against nuclear war? Has the noble Lord noted the background paper published this week by the British Medical Association to their inquiry saying that even deep shelters will not protect people from nuclear war? Would it not be much better to concentrate on getting world agreement to end nuclear arms?
Lord Belstead: My Lords, there is a distinction, of course, between protection against nuclear blast and protection against nuclear fall-out. The important efforts which are being made at the present time, both locally and nationally, are particularly geared towards trying to improve our protection against nuclear fallout.
Lord Shinwell: My Lords, is the noble Lord aware that we would all welcome world agreement to remove our apprehensions of the danger of another war? But the difficulty of obtaining world agreement is even more of an obstacle than the provision of civil defence.
Lord Belstead: My Lords, I am not going to improve on what the noble Lord has just said.
Lord Davies of Leek: My Lords, may I ask the noble Lord whether I am misreading public newspapers since I have been away? I understood—have the Government heard about it?—that the President of the United States has kindly reserved 120,000 beds for Europeans who may be radioactive if we had a nuclear war. Is there any truth in that report?
Lord Belstead: My Lords, I am not aware of any truth in that particular statement.
Lord Jenkins of Putney: My Lords, may I deny that any statements made by CND are false? May I also ask whether it is the case that there is no effective defence against nuclear war, and either we get rid of the bomb or the bomb will get rid of us?
Lord Belstead: My Lords, the defence against nuclear war is to be prepared abroad and to be ready and alert at home.
Lord Cledwyn of Penrhos: My Lords, could the noble Lord say more about the functions of the co-ordinator? Although the appointment is a very good one, could he say how much authority the co-ordinator has? What precisely does he do? Is he much more than an adviser?
Lord Belstead: My Lords, perhaps I may refer the noble Lord, Lord Cledwyn, to the circular which was sent out on 20th March, 1981, a copy of which is in the Library numbered ES1/1981. May I add that the important aspect in civil defence is that we do not have a form of inspection. What seemed important above all else was therefore to have a good system of co-ordination. The obvious appointment seemed to be the man who had until a few months ago been at the head of the Home Defence College at Easingwold, near York. That is why the appointment of Air Marshal Sir Leslie Mayor was made.

Hospital Admission Guidelines
3.9 p.m.
Lord Wallace of Coslany: 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 guidelines have been given to National Health authorities in order to establish the legal right of an individual to free admission to a hospital for treatment and care.
The Minister of State, Department of Education and Science (Baroness Young): My Lords, the general policy on who may receive free National Health Service hospital treatment is in a memorandum of guidance issued in 1963, with some later letters on the eligibility of European Community nationals.
Lord Wallace of Coslany: My Lords, is the noble Baroness aware that apart from the case of Mrs. Tissier reported in the Guardian of 22nd June, I have previously received representations from hospital staffs who found it extremely embarrassing to test doubtful cases vigorously? Secondly, she is aware of the racist undertones behind the Government's drive on alleged doubtful cases? In other words, the colour of a person's skin or doubtful command of English is most likely to arouse suspicion. Finally, what evidence do the Government have of wholesale abuse of the National Health Service to justify their action?
Baroness Young: My Lords, under the present arrangements, where the operation of checks on eligibility has been left very largely to local discretion, there have been a number of incidents reported in the press, and possibly others which have not attracted publicity, in which members of ethnic minorities have been asked to produce their passports merely because they have had foreign names. I do not, for one moment, condone this. I believe our new proposals will reduce that sort of thing. Regarding the other point raised by the noble Lord, which may well have been about complaints of discrimination at St. Stephen's Hospital, I should like to say that inquiries into these cases are still proceeding. I understand that the procedures at that hospital are under review.
Lord Wallace of Coslany: My Lords, I thank the noble Baroness for that remark, but is she aware that one of the ideals held by those of us involved in the provision of a National Health Service was the parable of the good Samaritan, which now seems to be being abandoned? Further, in view of the fact that the Government are considering imposing charges on people from abroad, would they now drop these proposals which are causing so much irritation?
Baroness Young: My Lords, in the first place, the operation of what has been called "the good Samaritan treatment" is still in force. In the second place, my right honourable friend the Secretary of State for Social Services made it clear last week that after this period of consultation on his new proposals about charging those who are not resident for the National Health Service, he will not lay regulations until November, when there will have been an opportunity to consider the evidence and the views of the working party who will be looking at the detail of how the scheme will work.
Lord Avebury: My Lords, when the Secretary of State announced the setting up of the working party to review the charging of foreigners who have been resident in this country for less than three years, and when he also announced that the introduction of these charges would be deferred, he did not say—did he?—who was going to be on this working party and how interested persons could make representations. Would the noble Baroness circulate in the Official Report or have published in some other form information which will enable community relation officers, community health councils, and so on, to provide advice to the Government in good time, so that a further deferment of the Government's plans may not be necessary?
Baroness Young: My Lords, I can confirm now that the working party will be under a departmental chairman and will consist mainly of NHS representatives of various disciplines. We shall also invite the medical profession, the Commission for Racial Equality and the Joint Council for the Welfare of Immigrants to participate.

The Queen's Flight
3.13 p.m.
The Earl of Kinnoull: 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 now consider modernising the fleet of aircraft of the Queen's Flight in conjunction with the needs of RAF Transport Command.
The Earl of Avon: My Lords, as my right honourable friend the Prime Minister announced in another place on 7th April 1981, she recently reviewed with the Ministers concerned the possibility of buying new aircraft for the Queen's Flight, but reluctantly came to the conclusion that re-equipment should be deferred for the time being.
The Earl of Kinnoull: My Lords, while thanking my noble friend for that reply, is he aware that this is a disappointing answer for those who are interested in British aviation when one sees the almost geriatric age of some of this highly prestigious fleet? Could my noble friend consider whether, if the Ministry of Defence are not able to provide the funding, it might be shared among other Government departments, in view of the responsibilities which the Queen's Flight carries out so splendidly each year?
The Earl of Avon: My Lords, I thank my noble friend for that interesting suggestion. However, although the Ministry of Defence's problems may have been highlighted recently, I think that whatever department was funding the Queen's Flight would have come to the same conclusion, as this is, of course, a Government conclusion.
Lord Beswick: My Lords, is the noble Earl aware that while there is immense and proper pride in serving in the Queen's Flight, the fact is that that name hides the fact that the aircraft are used for a wide number of people for whom time is important? Would the noble Earl say whether he agrees that it will be quite impossible for us to pretend to be a high-technology nation if we have these leaders of our country flying around in out-of-date aircraft?
The Earl of Avon: My Lords, it may be highly desirable on several grounds to replace the Andovers of the Queen's Flight, but they have an excellent safety record and many years of useful life ahead of them. In view of the many other pressing demands on the defence budget, the re-equipment of the Queen's Flight has, with reluctance, had to be deferred.
Lord Boyd-Carpenter: My Lords, can my noble friend explain what he means by "for the time being"? Does he appreciate that, as has been suggested by the noble Lord opposite, it is the worst possible public relations for the British aerospace industry to have both the Sovereign and her Ministers using aircraft so elderly that no other leading person in the world uses them?
The Earl of Avon: My Lords, I am sorry that my noble friend would not use one of these aircraft—
Lord Boyd-Carpenter: My Lords,—
The Earl of Avon: I should be perfectly happy to use one myself. My noble friend asked me about "for the time being". My noble friend is well aware that we have just had a defence review, which we are to debate in a week's time. Therefore this will have to wait until the next review. So far as his public relations comment is concerned, I shall certainly bring it to the notice of my right honourable friend.
Lord Glenarthur: My Lords, is my noble friend aware that helicopters of the Queen's Flight are unable to fly when icing conditions are present—that is to say, when it is raining or in cloud when the temperature drops below plus 1—and that that imposes severe constraints on the operation of these helicopters in the winter time? Would he also bear in mind that, now Westland are developing the first all-British helicopter for some years, there may well be opportunities here to replace the old Wessexes with the WG30?
The Earl of Avon: My Lords, I am indeed grateful to my noble friend for his advice and I will bring it to the attention of my right honourable friend.
Lord Derwent: My Lords, my noble friend said that these aircraft have many more years of useful life in them. If I were to put down a Question in, say, 15 years' time, would that be in order?
The Earl of Avon: My Lords, I should be delighted, if I am still on this earth, to answer my noble friend.

Warrington By-Election: Name of Candidate
3.17 p.m.
The Earl of Kinnoull: 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 whether the action of a candidate at Warrington by-election to change his name by deed poll to that of another better-known candidate is an acceptable practice or a matter that needs review to avoid public confusion.
Lord Belstead: My Lords, it would not be appropriate for the Government to comment on this matter while the by-election to which the noble Lord refers is in progress.
The Earl of Kinnoull: My Lords, while thanking my noble friend for that strict reply, may I ask him whether he is aware that there are two candidates in Warrington with the same name? Secondly, is he aware of how long it takes to change a name for such an occasion and how long it would take to change the name back again?
Lord Belstead: My Lords, I think I can quite safely say that I do not know the answer to any of the questions my noble friend has asked! My noble friend's original Question of course did not refer, if I may say so to him, to two people having the same name: it referred to somebody changing his name and doing it by deed poll. I think it is important that I should say that I am not aware of a case in which a name has been changed specifically for the purpose of contesting an election.
Lord Wigoder: My Lords, may I ask the noble Lord the Minister two questions about the returning officer's discretion: First, has he got a discretion, where a candidate offers himself in a particular name, to put on to the ballot paper, "Name changed by deed poll, dated so and so, formerly known as Joe Ramsbottom (or whatever it may be)"? Secondly, if a candidate by way of description wishes quite deliberately to misrepresent himself as being the official candidate of a party of which he is not the official candidate, has the returning officer discretion to refuse or accept that?
Lord Belstead: My Lords, the reason I originally said that this was not a matter for the Government to comment upon is that if the electorate has been misled in any particular case that would be a matter for the court. That is why I really think it is better not to pursue this in any greater depth at the present time. However, may I just add that, as I understand it, in the event of there being a genuine difficulty about this because people have the same surnames and Christian names, there is on the ballot paper also the provision that there should be addresses given. Although in the final analysis that may not be a very good answer, it does mean that some distinction could be indicated to the electors.
Lord Byers: My Lords, may I ask the noble Lord whether he does not feel that it is appropriate at this moment to answer my noble friend's question on the discretion of the returning officer? It is a very important fact. That is what we want to know.
Lord Belstead: My Lords, the returning officer, as I understand it, has no discretion to say that he will not accept the nomination for a candidate if he believes that, in some way, the candidate is not a suitable candidate; in other words, is debarred by law. As I understand it, however—and I must write to the noble Lord if I am wrong in this—there is a discretion so far as the name is concerned.
Lord Underhill: My Lords, is it not a fact that there have been instances, particularly in local government, of candidates with the same surnames and Christian names? Is it not also a fact that the matter
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has been surmounted in those cases by efficient election organisation? Is not the general question raised by the noble Lord one on which it would be unwise to take hasty action, as happened on a recent occasion, and, furthermore, is it not a matter that ought to have the closest review before there is any change in election law?
Lord Belstead: My Lords, I entirely agree with the noble Lord that probably it would be extremely sensible to look at this matter, if there is a point to look at, after the election is over, but not on a point which is referring to—
Lord Wigoder: No.
Lord Belstead: The noble Lord says, "No". I say, "Yes". My view is—and I put this on behalf of the Government—that it would be wholly wrong for the Government to continue to comment on this matter while the election is on.
Lord John-Mackie: My Lords, may I help the noble Lord on the time factor—
Lord Harmar-Nicholls: My Lords, is my noble friend aware that there is no need to be disturbed about this matter, as the candidate concerned is showing himself to be so inadequate? If he wants to use the dirty tricks department to reflect prestige and ability, why not use a name that would do that, such as "M.Thatcher"? This one does not do that at all.
Lord Belstead: My Lords, one thing I am absolutely certain about is that it is not for the Government to say whether they think that one candidate is either adequate or inadequate.
Lord John-Mackie: My Lords, may I help the noble Lord on the time factor? If he can find a good solicitor and a quick typist within five minutes of Bush House, the whole thing can be done in half an hour.
Lord Belstead: My Lords, the noble Lord left me when he crossed the border.
Lord Kennet: My Lords, would the House agree that there might be one subsidiary question from the party concerned? Is the noble Lord aware that when we are sitting over there and they are an unprecedentedly large opposition party over here, we shall show the greatest sympathy and understanding and, I hope, practical help to that party in its plight when one or two dozen "Margaret Thatchers" are down for election in Finchley?
Lord Belstead: My Lords, let us end this by saying: Let us see how this election goes.

Belize Bill
Brought from the Commons; read 1a, and to be printed.

Business of the House
3.23 p.m.
The Lord President of the Council (Lord Soames): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That Standing Order No. 43 (No two stages of a Bill to be taken on one day) be dispensed with for the purpose of taking the Representation of the People Bill through all its remaining stages this day.—(Lord Soames.)
Viscount Simon: My Lords, before we agree to this Motion, I wonder whether I may say this. I listened with care through the Second Reading of this Bill, and it did not seem to me that the noble Lord, Lord Belstead, who spoke for the Government, made out a case at all for the urgency of the Bill. That question was put by several speakers from this side of the House, and I thought that when he came to wind up he would deal with that matter; but, unless my memory has failed me, I do not think he did deal with it. He certainly did not leave it in my mind that he had dealt with it. It seems to me extremely important that this House should not pass a Motion of this kind—which, of course, the Government of the day can carry through if they wish—unless we are really satisfied that there is a reason for this urgency. It was agreed on all sides of the House that this was a difficult Bill and that it was a Bill with considerable constitutional implications. I must say that I do not myself remember whether, at the time the Bill was introduced, there was any indication that it was going to be pushed through in this way. I just wonder whether it is right for us to pass this Bill without hearing from the Government what is the real urgency for passing it in one day.
Lord Mishcon: My Lords, I wonder whether I may repeat a protest in support of the noble Viscount, Lord Simon, which I endeavoured to make on Second Reading. This is a Bill which was described by the Minister of State in another place as certainly a Bill which gives rise to unusually important issues. It came to this House on 26th June, we had the Second Reading on 30th June and we are asked to deal with the Committee stage and all other stages two days later. And this is supposed to be a revising Chamber. I add my protest to that of the noble Viscount, Lord Simon. I feel that it is an affront to this House.
Lord Soames: My Lords, it certainly is not designed in any way to be an affront, if I may make that totally clear to the noble Lord, Lord Mishcon. As to the point which the noble Viscount, Lord Simon, first made about the urgency of the matter, there is, of course, a constituency which does not have a Member. A writ has to be moved. We do not want that constituency to remain unrepresented for any longer than necessary. So, as far as the timing is concerned, the point is specifically that here is a constituency which is unrepresented, awaiting the moving of a writ. On the next point, as to the timing, I take what the noble Lord, Lord Mishcon, said. This is not something which the Government like to do—to rush legislation
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through either House. But I would only point out, perhaps in mitigation, first, that in this instance there is the pressure of time, to which I have referred; and, secondly, that I did not think we were doing things timing-wise that would fail to be understood in your Lordships' House, in so far as in another place, equally, they were rushed and they had two days to go through all the proceedings on the Bill.
That does not mean that it follows that this House should have only two days—of course not. On the other hand, this is a particular Bill the application of which will have more effect upon the other place than upon your Lordships' House. To put it no higher, I think it would be not unreasonable to suggest to your Lordships that we should not require more time to debate it in your Lordships' House than was taken in another place.
Lord Hylton: My Lords, is it not the case that many constituencies have gone unrepresented for many months, for all kinds of reasons, in the past? Is there not a maxim, that if one legislates in haste one often repents at leisure?
Lord Soames: My Lords, on the other hand, you could repent very much if you did not legislate quickly.
On Question, Motion agreed to.

British Nationality Bill
Lord Belstead: My Lords, with the leave of the House, I do not propose to move the Motion standing in my name on the Order Paper today. I will table another Motion to take account of discussions which are presently being held through the usual channels and upon which I am sure agreement can be reached.

Betting and Gaming Duties Bill [H.L.]
The Lord Chancellor (Lord Hailsham of Saint Marylebone): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill. I must apologise for this. It had been my intention to move, That the Order for Commitment be discharged, but, unfortunately, there was a technical hitch and I have to move the ordinary Motion in the ordinary way. I beg to move.
Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
The Chairman of Committees (Lord Aberdare): I understand that no amendments have been put down to the Bill this afternoon. With the agreement of the Committee, therefore, I will now put the Question, That I report the Bill to the House without amendment.
On Question, Motion agreed to.
House resumed: Report received.

Transport Act 1962 (Amendment) Bill
Bill read 3a, and passed.

Social Security Bill
3.41 p.m.
The Minister of State, Department of Education and Science (Baroness Young): My Lords, I beg to move that this Bill be now read a third time. There are only two points which I should like to make. First, may I repeat the assurance that when it comes to making good any future shortfalls in pensions which may occur we shall be no less assiduous than we have been on this occasion. Your Lordships will by now be thoroughly familiar with our pledge that we as a Government are fully committed to maintaining the level of pensions and other associated long-term benefits in line with inflation and to improving them beyond that level when economic circumstances permit.
Secondly, I should like to thank those who have supported me on the Bill and who have made contributions to our debates. In particular may I thank my noble friend Lord Cullen of Ashbourne and my noble friends Lord Boyd-Carpenter and Lady Faithfull. I beg to move that the Bill be now read a third time.
Moved, That the Bill be now read 3a.—(Baroness Young.)
Baroness Jeger: My Lords, the House has dealt very thoroughly with the Bill and I do not propose to take up your Lordships' time on it. I shall speak only for a moment so that silence does not imply consent to the Bill. There are parts of it which we welcome. We welcome especially Clause 5 which alters the number of days which people have to be away consecutively. We know that this will help in particular people who are on dialysis treatment and other disabled people who need short periods of assistance.
Of course we are glad about the reciprocal agreements entered into with countries outside the United Kingdom. We welcome the tidying up of certain difficulties regarding members of the former Indian and Burmese armed forces. Finally, we very much appreciate the undertaking which we have been given that future shortfalls will be made up—we hope as vigorously and as speedily as last winter's shortfall was deducted. However, we must make it clear that Clause 1 of the Bill is deeply offensive to this side of the House. We felt that this should go on the record.
Lord Banks: My Lords, may I join the noble Baroness, Lady Jeger, in making it clear that we on these Benches also dislike Clause 1, which is the only controversial clause in the Bill. We regret that it was not amended during the Committee stage. However, we welcome the repetition of the pledge with regard to long-term benefits and the making good of shortfalls relating to them which the noble Baroness has given this afternoon. We regret, however, that that pledge does not apply to short-term benefits.
Baroness Young: My Lords, may I thank both the noble Baroness, Lady Jeger, and the noble Lord, Lord Banks, for their comments. I recognise that we cannot expect all-party support for Clause 1. However, I was very glad that the noble Baroness commented on two provisions which I think have received a great deal of support: first, Clause 5 which provides for a relaxation of the qualifying conditions for incapacity benefit payable to certain haemo-dialysis patients and, secondly, Clause 7 which extends the statutory war pension appeal rights to British officers serving with the former Indian and Burmese armed forces.
I should also like to place on record that I welcome the concern that every effort should be made to ensure that people claim the benefits to which they are entitled, a point to which the noble Lord, Lord Wallace of Coslany, drew attention, and also my noble friend Lord Campbell of Croy. Like previous Governments, we have found the disappointing take-up of certain benefits to be a problem which is not susceptible to easy solutions. I can assure the House that we constantly re-examine our publicity arrangements in an attempt to improve the take-up of those benefits in particular. Nevertheless, it is quite right that from time to time your Lordships should remind us of our responsibilities in this area, and I am very pleased that later in the Session the noble Lord, Lord Wallace of Coslany, will be asking a Question about this matter.
Bill read 3a, and passed.

Representation of the People Bill
3.37 p.m.
Lord Belstead: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee—(Lord Belstead.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
Clause 1 [Disqualification of certain offenders for membership of the House of Commons]:
Lord Jenkins of Putney Lord Jenkins of Putney moved Amendment No. 1:
Page 1, line 7, leave out ("elsewhere") and insert ("in the Channel Islands, the Isle of Man or in any British dependent territory").
The noble Lord said: This is an amendment which I feel confident will have Government support and immediate acceptance. My reason for such confidence is that when I asked the noble Lord, Lord Belstead, what was the meaning in the Bill of "elsewhere" during our Second Reading debate he said in effect that it means the Channel Islands, the Isle of Man or any British dependent territory—that it does not mean elsewhere, but that. Since "elsewhere" does not mean "elsewhere" but means the Channel Islands, the Isle of Man or any British dependent territory, I think we should say in the Bill what is meant, not what is not meant. Therefore, I suggest that we substitute

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for the word "elsewhere" the words of my amendment. I hope with some confidence that the noble Lord will indicate to us the Government's acceptance of this clarification. I beg to move.
Lord Belstead: There is one fundamental point which I should like to make in reply to the noble Lord, Lord Jenkins of Putney. The Bill is not concerned with people who are qualified to stand who are in prisons outside the British Islands or the Republic of Ireland. The Government accept that it would be offensive to public opinion if, say, a British subject who was in prison in a dictatorial country for, let us say, political offences lost the civic privilege in this country of standing for Parliament. Such people would not be returned to serve their sentence in this country or in the Republic of Ireland. This Bill cannot apply to them. That is not the point of the noble Lord's amendment, but I thought it right to make this fundamental point clear at the beginning of the Committee stage. The persons to whom this Bill must apply, in all equity, are those who are convicted and who serve their sentences either here or in the Republic or who are transferred as a matter of routine to British prisons.
The amendment of the noble Lord, Lord Jenkins of Putney, identifies persons who are convicted in the Channel Islands, the Isle of Man and the British dependent territories. The noble Lord recognises that it would be anomalous to exclude them, but I must plead guilty, in that when I replied to the noble Lord at the Second Reading my indication of whom it was to which "or elsewhere" applied was not exhaustive. The list which I gave, and which the noble Lord opposite has repeated in moving his amendment, was not comprehensive. The list of persons transferred would also include British subjects sentenced to courts-martial under the provisions of the various Service Acts and transferred after sentence to serve their terms in British prisons. Another effect of the noble Lord's amendment would be to exclude prisoners convicted in the Republic of Ireland and serving their sentences in that country. That was, of course, an absolutely basic point put into the Bill in the other place as a result of representations which were made in the House of Commons. The Government believe that it is better to cover all these categories in one form of words rather than specify, and in doing so the noble Lord, Lord Jenkins of Putney, can be assured that the rights of any persons qualified to stand are not adversely affected.
Lord Jenkins of Putney: I am grateful to the noble Lord for that explanation, but I am still a little worried at the use of the word "elsewhere". The noble Lord has explained that in this case "elsewhere" does not mean elsewhere, and that what it means is not precisely what I have said it means or what the noble Lord said it means; but that it means something different from what the noble Lord has said it means. If the Government were to say, "We recognise that the word "elsewhere" is altogether too wide and we will institute a form of words other than "elsewhere" which will mean what we say it means", then I would be very happy not to press this amendment. Can the noble Lord say that?
Lord Belstead: No, my Lords.
Lord Jenkins of Putney: Then I wish to move my amendment.
On Question, amendment negatived.
3.42 p.m.
Lord Mishcon Lord Mishcon moved Amendment No. 2:
Page 1, line 12, at end insert—
("A person shall not be disqualified under this section until after the determination by any competent court of appeal in the United Kingdom or elsewhere in the British Isles or in the Republic of Ireland of any appeal entered by any such person within the statutory time limits against any conviction sentence or order as is mentioned above.").
The noble Lord said: I believe it might be for the convenience of the House if instead of repeating speeches which roughly have the same theme, I were to speak to Amendments Nos. 2 and 4 and then, if your Lordships seem as though they are with me on this Division of votes, I would seek (for a reason that I am going to give) to ask the House to vote on Amendment No. 4—unless, of course, my pessimism is misplaced and the Government decide to accept one or both of these amendments.
We are dealing with a very important constitutional issue in both amendments. The situation at the present moment in regard to our law is that somebody who is serving a prison sentence, be it for more than 12 months or less than 12 months, can validly stand for election. If he is in fact elected, it is for the other place to decide whether or not it will expel that person. One may have views about the Government's purpose in this, but in dealing with this amendment and with the other amendment one should simply state the Government's purpose and accept it. The purpose of the Government is to alter the present position and to have an enactment that does two things. First, it would revert to the law as it was before 1967, as the Government say. In my view, it does not completely do that, but I am not going to weary your Lordships with that point at this moment. This will therefore see to it that a person who is serving a prison sentence of more than 12 months is disqualified from being elected to the House of Commons. The Government are seeking to do something in addition to that which has never been part of our electoral law at any time; namely, to stop matters at the nomination stage. Therefore, anyone who is serving a sentence of more than 12 months in one of our prisons in the United Kingdom is to be disqualified from standing.
As I have said, I am not going to complicate the argument by dealing with the issue as to whether or not the Government are correct in the view that they hold. At Committee stage I want to assume that the Government view is correct. What I am appealing to your Lordships' House for is that justice should operate to this extent; that in the case of somebody standing for election and also in the case of someone who has been appointed by the people to be a Member of the other place, there shall in both cases at least be provision for the matter to be put right if the person so convicted and sentenced appeals and the appeal is either successful on sentence, in order to reduce the sentence to less than 12 months, or is successful against conviction. There has been such a case, for

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example, in another place. I do not consider that it would be appropriate to mention names, but there has been a case in recent history where a Member of the other place was convicted and was sentenced for more than 12 months and who, on appeal, was completely acquitted of any suggestion of guilt by the appellant court. Indeed, there were statements made in sheer fairness on that occasion that a conviction should never have taken place.
Amendment No. 2 deals with this question of the nomination stage, and indeed of the election of a person not yet elected to another place. Amendment No. 4 deals with the situation of somebody who has already been elected. If I may say so, there are slightly different arguments which apply in each one of these cases. If I may take Amendment No. 2 first, it deals, as I have said, with the nomination and election stage of a Member of the other place. I should like to express my indebtedness, in that I have used very substantially in these amendments the wording of an amendment that was put forward in the other place by the honourable Member for Grantham, who bears the name of Mr. Douglas Hogg—a name not unknown in your Lordships' House. That amendment was moved in the other place by a distinguished member of the Government. He moved the amendment in regard to the situation of somebody nominated for or first elected to the House of Commons; the question of disqualification at nomination stage or at election stage was what the Member of the other place was dealing with in moving that amendment. The answer that was given to that amendment is of some interest in that it was dealt with by both the Minister of State, Mr. Mayhew, and by the Home Secretary himself, Mr. Whitelaw.
If your Lordships will permit, I should like to quote from the comments made by Mr. Mayhew in the House of Commons on 25th June. He said:
"I turn to the high water mark of the case so attractively made by my honourable friend. In the case of someone who is sitting as a Member of the House, the penalty is more dire".
As I said, I shall be quoting the rest of what he said when I deal with the question of the election to the House of somebody who is already a Member and then will be disqualified. This is what he went on to say:
"One has to acknowledge, facing the situation in Northern Ireland, that it is not possible, while seeking to remedy an abuse of the nature of that with which we are dealing, to serve completely the interests of justice and, at the same time, to serve completely the interests of practicality and the interests of speed".—[Official Report, Commons, 25/6/81; col. 445.]
I am ending the quotation there and your Lordships will not be surprised if I make the immediate point that this is meant to be legislation not for Northern Ireland and not only to deal with the tragic events of this time in Northern Ireland. This is meant to govern the whole of the United Kingdom and it is meant to be legislation of a permanent nature. Therefore, it is somewhat surprising that the Minister limits himself to the argument that, because of the urgent situation in Northern Ireland, the interests of justice have to give way to the necessity for speed. One knows what the necessity for speed is because indeed we heard the noble Lord the Leader of the House on that matter when he moved his Motion earlier today.
Later in the proceedings, after a member of the Government had said—and I am paraphrasing—that he supported the Bill on Second Reading with reluctance because he distrusted rushed legislation, the Home Secretary, Mr. Whitelaw, said:
"I reinforce what my honourable and learned friend the Minister of State said. Of course, I shall consider the points that have been made on this issue. It would be possible to make a change in another place, and I shall consider this, but I must do so at this stage without commitment. I undertake to consider what has been said ".—[Official Report, Commons, 25/6/81; col. 471.]
What had been said by the honourable Member for Grantham in another place was that it was transparently unjust for somebody who was exonerated on appeal to have the disqualification of not being able to stand for the election or, if this disqualification arose between nomination and election, of not being able to be a Member of the House although elected. Therefore the answer depends on the question of speed, and I have ventured to alter the wording of the amendment as tabled by the honourable Member for Grantham because the argument on speed was deployed in this way—and I am paraphrasing what the Minister said. One need not necessarily appeal within the statutory time. One could go on and, if one wanted to delay the matter, petition the court, asking for leave to appeal out of time. So, bearing in mind that an election cannot stand still, I have specially put the words in this amendment that the appeal has to be entered within the statutory time-limit, which is four weeks.
In those circumstances I should have thought that this would be an opportunity such as the Home Secretary himself thought was available—namely, for this place, having considered the matter, to alter the Bill in order to provide this cover of justice to what is otherwise a very severe disqualification clause.
So that your Lordships are not burdened with two speeches of mine on this issue, I promised that I would deal in the same speech with Amendment No. 4, which covers a different situation—namely, that somebody is already sitting as a Member of the House. Let there be no misunderstanding about this—and if I am wrong, I know that with his usual courtesy and his usual firmness the noble Lord, Lord Belstead, will correct me. As I understand it, the position before 1967 was that, if you were a Member of the House and you were disqualified, should you be unfortunate enough, or wicked enough, to be sentenced to a term of imprisonment of more than 12 months, you were disqualified from sitting and disqualified from voting but, unless another place by resolution expelled you, your seat was not declared void. Therefore, there was no question of your automatically finding yourself disbarred as a Member of another place. I believe that that was the situation.
Under this Bill, which not only seeks to reimpose the situation as it was before 1967, I understand that what will happen to a Member of another place if he is sentenced and is serving a term of imprisonment of more than 12 months, is that he will cease to be a Member of another place. That of course goes very much further and, in going further—and even if I am wrong and it does not go further—it must be a complete and absolute injustice, if an appeal is entered and is successful, if the Member of another place, properly elected

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by the people, has not the right to resume his seat with the power to sit and the power to vote.
It was conceded at the Committee stage in another place that this was indeed a matter of very hard law, and hard cases were referred to in the argument. Therefore, what I would seek to do now is to quote in full what I was endeavouring to quote before from the speech of the Minister of State in answer to this amendment when it was moved in the other place. He said:
"In the case of someone who is sitting as a Member of the House, the penalty is more dire. He is tipped out of his seat. He is tipped out of his job. It can be said that the consequences affect more people than are affected by the application of the Bill to somebody who is seeking to be nominated or elected. That has to be faced. It is not, however, all one way. The Forfeiture Act 1870 presented exactly that pattern. Disqualification under the 1870 Act, to the extent that it disqualified from sitting and voting in this House and being elected to the House, operated straight away upon conviction ".—[Official Report, Commons, 25/6/81; col. 445.]
I have ended the quotation and your Lordships will see that certainly in the mind of the Minister of State was the fact that, pre-1967 and taking into account the provisions of the Forfeiture Act, the situation was that there was disqualification from sitting and voting, not an automatic voiding of the seat and not an automatic expulsion from membership of another place.
The last argument that I wish to burden your Lordships with is the rather theoretical argument that has been advanced, which is that the principle of our law is that until you are convicted you are innocent and after you are convicted you are deemed to be guilty. I wonder whether I can ask your Lordships not to be adjudicating upon some strange person, some third party who might be a colleague in another place. I wonder whether any one of us would not feel a sense of the most dreadful injustice if, by some mischance, it happened to us. It has been said before, and instanced only recently: the judges are but human, juries are but human and expert witnesses are but human, and some people have been convicted of the most serious offences and it has been found afterwards that the conviction was completely misplaced. As I said, Nye had an instance of it only over the last week or so.
Suppose it happened to one of us and we were disgraced and sent out from another place, or indeed from this place—although the Forfeiture Act indeed dealt with this House while the present Bill does not, and possibly because it is a Representation of the People Bill one can understand it. But can one imagine the sense of abhorrent injustice if it happened to us—any one of us—and we were completely exonerated on appeal and we had no right to go back to the seat to which we had been properly elected in a democratic assembly by a democratic vote; we had been expelled, we had been disqualified, the seat had been voided, even though on appeal all was well and we were acquitted.
It cannot be argued in the second case that there is such a hardship upon the electors who had appointed that Member, that for some period of time they were unrepresented. Have we so little confidence in our appeal administration as to think that a case of this kind, an appeal of this kind, would not be expedited? Of course it would be. Have we not all experience of constituencies that are not represented for some time,
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because of illness and other matters? Arrangements are made, quite obviously, for the constituency to be looked after in the meantime.
We are dealing with a matter of great constitutional importance. I beg of your Lordships not to be misled, as I respectfully say the Minister of State was misled, into arguments about what is happening at the present moment in Northern Ireland. This is not a Northern Ireland Bill; it is a United Kingdom Bill. It is a permanent Bill. As was said by the Home Secretary, there could be an opportunity in this place to put this matter right.
Only so that the noble Lord, Lord Belstead, may know what my intentions are because it is only right that he should, may I say that I believe that the proper way of expressing the opinion of this House, in a Division as against a verbal vote, if I may put it that way, would be to take the case of a Member of another place which is, in my view, the harder case of the two. I therefore would propose, unless the Government can accept this amendment, to divide on Amendment No. 4, but I hope your Lordships will be sufficiently vocal on Amendment No. 2 to make it completely plain that "the Contents have it". I beg to move.
Lord Rawlinson of Ewell: If I may—
Lord Hampton: If I may, I wish to speak only quite briefly. I find the noble Lord, Lord Mishcon, very persuasive and I should support him in the event of a Division. I cannot accept quite everything that he says, but those points may have to be taken up later. It seems to me the Government have been accused, rightly or wrongly, of rushed legislation today, and here is a case of not only rushing legislation but rushing one stage further. The statutory time is four weeks, as the noble Lord, Lord Mishcon, has said, and when it is a case of a man appealing against forfeiture of nomination for election to another place, or of being disqualified, I cannot see that this is not a reasonable step to take. I would support the noble Lord.
Lord Rawlinson of Ewell: I start by apologising to the noble Lord, who, of course, should have had precedence; I am only sorry that I did not see that he had risen. I apologise to him and to the Committee. We are dealing here with the Representation of the People Bill, and while I fully accept that it is the right of this House, and indeed on occasion I can fully understand that it might be the absolute duty of this House, to play a very strong part over a Bill which deals with election to the House of Commons, nevertheless I suppose we should take into account that this is a Bill which deals solely with election to the House of Commons on which the House of Commons have exercised their vote and their decision. I think it is something that we should take into account.
We have to be realistic. While I listened with great pleasure, as I always do, to the noble Lord, Lord Mishcon, I think we have to be realistic about why this Bill is before this Parliament at this particular time. For us to try to deal with it in a vacuum would, I think, be totally absurd. It is, of course, persuasive to say that normally one would try to wait until all the appeal procedures had been completed, which, of course, goes beyond going to the Court of Appeal;

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it would include coming to your Lordships' House, to the Judicial Committee. Although that might be expedited it might take a very considerable time. We have to be realistic, in that we have to face the situation in which what happened in the by-election when the late Mr. Sands was duly elected was, in my view, one of the most serious propaganda defeats for this nation.
The desirability of this Bill, I believe, is felt by everybody. It is offensive to the general public, and it must be particularly offensive to those citizens of the United Kingdom in Northern Ireland, that there should arise a situation where a person can be nominated for election to the British House of Commons who is in the position of a convicted terrorist. The consequences of that situation, for instance in the United States of America and elsewhere, were very grave indeed. I believe that it is right for the Government of the day to take upon itself the duty and the responsibility of seeing that that situation does not arise again, because it was a situation which I believe gravely offended the general public in this country.
The conviction of a person of a crime creates a situation where the press and public speak of a "convicted person"; the person's history is given, which it has not been before. Reflect, if your Lordships would, on the recent cases which have been in the public press. Someone has been convicted, and though an appeal may be pending nevertheless that person is treated as a convicted person. Being treated as a convicted person, none of the laws of contempt apply and he can be called what he is: a convicted murderer, a convicted terrorist. I appreciate from what the noble Lord has said that, of course, there must be conceived the situation whereby on appeal that verdict is reversed and the convicted murderer, the convicted terrorist, then has that conviction quashed. But we have to look to the consequences upon our institutions, and upon this Parliament, which we all serve, if in elections to the House of Commons, where there is the representation of the people, there can be nominated to serve there a person who has been convicted of terrorism or of murder or of any of those serious offences.
While, of course, the noble Lord is right in saying that this Bill deals with the whole of the United Kingdom and is, on the face of it, a permanent Bill, nevertheless we must sec it in the context in which it was introduced into Parliament. We must see it in the context of that situation and of the possibility of it arising again. What are the public to say of a Government and a Parliament which let such a situation arise again?
Therefore, I believe that it is right that we should do that which we set out to do. We set out to do it on conviction because I believe that, if we delayed it for a time and provided for the time when it goes to appeal to the Court of Appeal and then up to your Lordships' House, the objects and purposes of the Bill would be defeated. In my view, this is a Bill in which we must take into account the balance—and I think that there is a balance here—between the public interest and the interest of the individual. I believe that the interests of the public demand and insist that no longer should it be possible for a situation to arise in which a person such as Mr. Sands could be elected to serve in the House
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of Commons. Therefore, I disagree with the noble Lord and I agree with the Bill as presented by the Government. I feel that we should maintain the clause as it is and reject the amendment.
Lord Renton: Since the time factor has been mentioned, I should just like to say that I am one of those who feel very strongly that normally we should take plenty of time on legislation, because legislation is so difficult. So frequently it has been shown that your Lordships' House, by exercising its powers of revision with great thoroughness and great care, has managed to improve legislation a great deal. But there are other occasions when the public do not expect us to tarry: they expect us to correct something which is plainly wrong. I would suggest that this Bill is one of those occasions. Perhaps that is irrelevant to the amendment moved with his usual clarity by the noble Lord, Lord Mishcon, and I should like, therefore, to turn to that matter.
I wonder whether it has occurred to the noble Lord, as it has to me, that his two amendments, if accepted, would confer a privilege upon Members of Parliament and people wanting to become candidates for Parliament—a rather strange privilege I concede—which is not available to other convicted people. Other convicted people, even though an appeal is pending and until it has been heard, normally have to remain in prison and cannot enjoy any civil rights such as, for example, voting. They have to live and work in prison. There are exceptions, but they are rare. Sometimes bail is granted pending an appeal, but that is a pretty rare occurrence. Sometimes for reasons of compassion a man may be released for a day from prison, in custody, to get married or even to attend a funeral, but those occasions are very rare. Normally, convicted people, even though they may have a splendid chance of succeeding on appeal, have to stay in prison.
Lord Mishcon: The noble Lord is always so courteous that I am sure he will not mind my intervening. No suggestion was ever made in this amendment or in any speech that I made in support of it that a Member of Parliament or a candidate should be exempt from serving his prison sentence pending appeal. He will be in prison and therefore he will be unable to sit and unable to vote.
Lord Renton: The noble Lord is perfectly right and it is obvious that I have not made myself clear to him nor perhaps to other noble Lords. I am saying that once one has been convicted, and even though an appeal is pending, one is deprived of one's ordinary civil rights which go with liberty. That is what I am saying.
Let me come briefly to my other two points. First, we do know and the noble Lord knows—although I am sure that he has never been guilty of delaying an appeal in any circumstances; it is unthinkable that he could have done so—that appeals get delayed, sometimes intentionally, sometimes inevitably and sometimes accidentally. However, if this amendment is accepted, there will be a very great temptation and a very strong motive for delaying appeal so as to try to hold the person still as a candidate for Parliament or as a Member of Parliament. The uncertainty that could be created by the simple fact that appeals so often are

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delayed, as my noble friend has suggested, would be surely against the public interest.
There is an even stronger short point that I would wish to make and that is to emphasise that the effect of these amendments would be further to disfranchise thousands of people in a constituency. They would be disfranchised in what I would consider to be an unnecessary and sometimes vain attempt to produce a form of special justice for the Member of Parliament or the candidate concerned, and I do not consider that constituents should be disfranchised in that way. Therefore, I hope that my noble friend on the Front Bench will oppose the amendment.
Baroness Wootton of Abinger: I think that, at the time of the 19th century legislation to which my noble friend Lord Mishcon referred, Members of Parliament were not paid. I wonder whether my noble friend would make it clear whether, in the case where a person has been convicted and is in prison pending an appeal, he would or would not, under my noble friend's amendments, be drawing his parliamentary salary? If he is detained in prison pending appeal obviously he could not attend this House; but would he retain his parliamentary salary pending appeal?
Lord Belstead: Like my noble and learned friend Lord Rawlinson of Ewell, I acknowledge on behalf of the Government that there is a balance to be weighed in this matter. The noble Lord, Lord Mishcon, certainly made a strong case in terms of justice and equity to the individual that there is a right that the penalty of disqualification from nomination and election to the House of Commons should not be incurred until an appeal within the statutory time limit has been resolved. In saying that, I am endeavouring to speak to the first of the two amendments with which the noble Lord has dealt.
The Government's case is that the possible risk of that feeling of injustice for the individual has to be weighed against injustice to a constituency which, if a Member were elected during an appeal period but was in prison, might go unrepresented for a considerable time. If I may say so, I really do think that my noble friend Lord Renton was absolutely right to point out that, under those circumstances, for a period of time which could be of considerable length—even allowing for the fact that in this amendment we are talking about an appeal made in the allowed period—people of a constituency, both those who have voted for the successful candidate and those who have voted against him, will all, in effect, be disenfranchised. The Government believe that the noble Lord's amendment on those grounds is not well-based, but we are also worried because I think that there are anomalies which could be created as a result of the first amendment and which would not necessarily remove the sense of injustice of a particular individual. I should like to refer to these anomalies as they occurred to me.
The noble Lord, Lord Mishcon, fairly said that the amendment is confined to the statutory period for an appeal. As your Lordships know, there are, quite rightly, extensive rights of appeal in the separate judicial systems operating in the United Kingdom. The statutory period to which the noble Lord referred is not, of course, the only right of appeal enjoyed by
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any individual. Leave to appeal can be sought in most cases at any time during sentence, but that is not, of course, covered in this amendment. This means that the noble Lord's amendment will not affect all appeals that may be fought or may protect the position of a person who believes that he or she has been wrongly convicted. This amendment would affect only a limited number, and it therefore can scarcely be said that this amendment rests wholly on a matter of principle, because under the amendment some appeals would delay disqualification and some would not.
Reference has, quite understandably, been made to the history of this matter. As I understand it, the position is as follows. The Forfeiture Act 1870 disqualified for election to or sitting and voting in the House of Commons persons convicted of a felony and sentenced to more than 12 months' imprisonment. No exception was made in the various subsequent Acts establishing our appeals procedures for those who had lodged an appeal. Nor does the Representation of the People Act 1969 make any exceptions in respect of the disqualification of a convicted prisoner from voting. As for other forms of disqualification they apply directly, without waiting for any chance of appeal. For instance, if a person is, on the day of nomination or election, a bankrupt or has been convicted of treason or certain electoral offences, his subsequent election would be void. However, I do not base the Government's case against this first amendment solely on the grounds of anomaly or history.
It was my noble and learned friend Lord Rawlinson who, in his speech, argued that it is essential to approach this Bill not in a theoretical, but in a realistic spirit. We must ask ourselves what would be the practical effect of allowing a period of grace during appeal. After all, on Second Reading the noble Lord, Lord Blease, referred to the prospective loophole in Northern Ireland, with a large number of prisoners there on remand because of the pressures on the courts. I think that this amendment would open a much wider loophole, because it would inject a degree of false uncertainty into the disqualification of prisoners—false uncertainty, because it is the law of the land that once convicted a person is guilty. He or she can be referred to in the press—as my noble and learned friend said—as being a guilty person and is treated in custody as being guilty. It would make the returning officer's job of disqualifying the nomination of prisoners convicted and serving sentences of more than 12 months more difficult, as the returning officer would have to receive information about the appellate position of the prospective candidate.
To put it in absolutely concrete terms, it would enable those who arranged the nomination and election of the late Mr. Sands to have an opportunity to select a recently convicted hunger-striking prisoner who, just at that time, had entered an appeal, however hopeless his appeal might be.
There is, however, the second amendment on which the noble Lord has warned that if the Government cannot meet his case, it would be necessary to divide. This amendment differs in one important respect from the other amendment moved by the noble Lord. The first amendment refers only to the suspension of the disqualification for nomination and election during

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the period of a statutory right of appeal, and then, of course, the appeal must be heard. The suspension during appeal provided in the second amendment for membership of the House of Commons, does not appear to be confined to statutory rights, but would extend to any appeal. I was a little surprised when the noble Lord, Lord Hampton, said that he felt that he would support the Opposition Front Bench in this matter. I wonder whether the noble Lord had quite taken on board that, as the amendment is drafted, this would mean that for a very long period of time it would be necessary to wait to see whether a Member who had been convicted for a period of more than a year would make an appeal. I repeat this because, of course, on conviction a person is found guilty and if in prison can no longer represent his constituents. But this is an amendment which would affect sitting Members of another place, and it is relevant that another place debated this and voted against the amendment.
I only say that because I do not find it surprising that even on this very sensitive issue affecting Members of another place, the House of Commons decided against this amendment. After all, until 14 years ago, the law was what the Bill now says it ought to be in respect of sitting Members. By that, I mean that the Forfeiture Act 1870, which was repealed in 1967, disqualified from sitting and voting in the House of Commons and from being elected to the House immediately upon sentence.
The noble Lord, Lord Mishcon, asked me a direct question about that. He said that he felt that that did not mean that the Member would then be disqualified by the old Forfeiture Act, which was the law of the land until 14 years ago. The noble Lord invited me to respond. Perhaps I might draw the noble Lord's attention to a case which I ventured to mention on Second Reading, which was the case of Arthur Alfred Lynch, who was adjudged guilty of high treason in March 1903. But, of course, high treason fell into exactly the same section of the Forfeiture Act 1870 as the position of those people who had committed crimes for which they had been convicted with sentences of more than 12 months. In considering the vacancy which was occasioned by Mr. Lynch's misdemeanour, in the House of Commons on 2nd March, 1903, at column 1121 the Attorney-General, Sir Robert Finlay, quoted, first, the relevant section of the Forfeiture Act 1870 and then he said:
"That express enactment renders it quite unnecessary for the House to pass any resolution stating that that is the effect of the judgment. Before that Act the practice had been established of having a resolution declaring that the judgment had the effect of disqualifying the person in question, and that practice survived in several cases after the statute of 1870;"
the Attorney-General continued:
"but I think the House will agree with me that in the face of this express enactment it is absolutely unnecessary to pass any resolution. That is a matter of clear law, and the only question that remains is, what shall be done with reference to the vacancy in Galway, which has been so created?".
My reading of that is that in 1903 the Attorney-General was saying that the 1870 Act in fact disqualified the Member of Parliament. Again, I do not find that surprising.
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Finally, may I ask your Lordships to consider the effect of the second of the two amendments in the name of the noble Lord, Lord Mishcon. In the event of a Member of another place being convicted and sentenced to a term of imprisonment of, let us say, three years or five years, under this second amendment everyone would have to wait for an indefinite period in case the Member were to appeal. I think that it would he most undesirable to disenfranchise the clectorate of the constituency concerned, pending an appeal made within the statutory limits, which is the effect of the first amendment; but to remove the right to have a Member of Parliament from a constituency, while an appeal was awaited out of time, from someone convicted and sentenced, which is the effect of the second amendment, really would be intolerable. I only venture to say that so trenchantly because that was the view of Members of another place, that these amendments should not be made, and I hope that your Lordships will take the same view.
Lord Mishcon: May I pay tribute to the noble Lord for a very powerful speech, but unhappy is the person who endeavours to debate with the Government Front Bench. I say that, because whichever way one argues, one will find that one cannot win. I shall instance this to the Committee in this way. In the other place, when almost the same amendment was moved by the honourable Member for Grantham, the argument against him was that in the case of someone who was nominated, it was very wrong, because of the time element, to approve of this amendment by virtue of the fact that the person concerned could appeal out of time and the whole thing could go on interminably.
Therefore I endeavoured to answer that argument in the case of nomination and election by saying, "Well, let us limit it to that category who do in fact comply with the rules and who appeal within the 28 days that are allowed". When I do that, I am told by the noble Lord, Lord Belstead, that I am guilty of arguing an anomalous position because I have taken one section only of those people who might appeal and I have discarded the rest. In such a debate nobody can win. Nevertheless, I shall struggle on.
I do not want to repeat the arguments I have advanced. The noble and learned Lord, Lord Rawlinson, will forgive me if I instance his speech which, as usual, was most powerful, but he talked about the circumstances in which this legislation was being put to the House. He talked about the scandal—and scandal it is—of what happened in the Sands election. I do not like the idea of Parliament being bombed into legislation by the IRA. I dislike it intensely. I dislike the fact that the whole time we have got in mind the Sands election. I dared to say at Second Reading that this will become known as the "Sands Bill", and I did not think he was entitled to that memorial.
I am trying to plead for people not guilty of terrorist acts; not guilty of treason. I am talking about the person who may be involved in business and, as a result it may be of the dereliction of fellow directors, finds himself on trial because his company has done something wrong. Then it is found that he should never have been convicted, by virtue of the fact that he did not have the knowledge and could not be

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impugned as a result of that. I am even talking about a person who, in spite of the fact that there is a breach of the law—and obviously a breach of the law cannot be condoned—may, for conscientious reasons which the electorate think were conscientious and they support him, find himself sentenced to more than 12 months imprisonment.
Our penal legislation these days goes very far. It goes very far in regard to all sorts of legislation that am not going to instance before your Lordships now. I cannot carry the argument any further than to say that it is not just the view of somebody on this side of the Committee, or this side of the Committee in another place; it was the view of a distinguished lawyer and member of a distinguished legal family that the appellate rights must be recognised, if not—and I say this; he did not say it—of the person nominated and elected, at least of the person who is a sitting Member in another place. As I said, I can carry the matter no further. I do not think there are any politics in this. Therefore I hope that those who do not feel the stinging impact of a Whip may feel fit to vote on this amendment when the time comes as something that is an intrinsic part of our justice.
On Question, amendment negatived.
On Question, Whether Clause 1 shall stand part of the Bill?
4.34 p.m.
Lord Mishcon: I apologise to the noble Lord that I did not give him notice of this question, and I shall well understand if he tells me that he is going to write to me about it, unless of course he can answer the question now. The Committee will be aware of the very short programme of time that we have for consideration of this Bill, and this thought occurred to me only this morning when I was reading Clause 1.
The clause refers to one or more offences, and then goes on to refer to an indefinite term in regard to detention or custody. It occurred to me that there is of course both criminal contempt and civil contempt, which can operate if the person concerned is convicted of it by the court's deciding that he shall be in custody for an indefinite period until he purges his contempt. "Offence" is not defined in this Bill, and I merely ask the Minister to consider—and not necessarily answer me now, because I have thrown this point at him—whether or not the disqualification provisions apply immediately to somebody who, on nomination day or indeed on election day, or indeed if he is a sitting Member, finds himself in contempt, for example in regard to an order made in the Family Division, and is therefore in custody by an order of the court—and an order is mentioned this clause—for an indefinite period, namely until he purges his contempt.
Lord Belstead: I am advised that the answer to the noble Lord's question is that Clause 1 only covers criminal contempt.
Lord Mishcon: If that is so, if it covers criminal contempt, although it is unusual for the court—and here I invoke the aid, if I may, of noble and learned Lords present in the Committee—and is not the practice of the criminal court to confine somebody to custody for an indefinite period, it is competent for a
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criminal court to do so, and indeed it has been done. I repeat, it is not the practice but it can be done in the case of criminal contempt. In those circumstances, I ask the Minister whether he would care to consider this. The situation would be extraordinary. If someone on nomination or election, or a sitting Member, was indeed in contempt of court and was therefore detained and it happened to be for 24 hours, but the order was that he be detained indefinitely, surely he would be caught by this.
Lord Belstead: Certainly I will consider what the noble Lord has said. I would remind the noble Lord of what I ventured to say to the Committee on the first of the noble Lord's two amendments which we have just been discussing. If on nomination day, for instance, a person has been adjudged a bankrupt, he is then caught. Therefore, although I realise that I am not comparing like with like, the fact that the time factor works in the way the noble Lord is putting it, I do not think is necessarily as unfair as the noble Lord appears to think.
Clause 1 agreed to.
Clause 2 [Effects of disqualification]:
4.29 p.m.
Lord Underhill Lord Underhill moved Amendment No. 3:
Page 1, line 15, leave out from ("void") to end of line 16.
The noble Lord said: Arguments in support of this amendment were included in the debate on the Second Reading. I am certain that most noble Lords who have read the Official Report will take the view that many of the arguments were not fully answered by the Government. The claim is made that the Bill, and this clause in particular, are to meet a particular Northern Ireland situation. This afternoon the noble Lord, the Lord President, said the reason is that a constituency is unrepresented. He also said that the effect was greater on another place than on this House, and that latter reason is why the amendment does not propose to deal at all with the first part of the clause, which concerns disqualification from membership of the House of Commons. However, the second part of Clause 2(1) says:
"if such a person is nominated for election as a member of that House his nomination shall be void".
That does not confine the clause to Northern Ireland. I will not deal with all the arguments put forward, even on the Northern Ireland question, on Second Reading, except to say that the clause would in no way debar from nomination a gunman or terrorist who had completed his sentence and was no longer detained in prison.
My main point is that the Bill, and this clause in particular, could affect any constituency and the electors of any constituency in the United Kingdom, so in that respect it is a fundamental constitutional change. Reference has been made, particularly on Second Reading, to the fact that the Bill seeks to restore the position to what it was prior to the passing of the Criminal Law Act 1967. In fact, the clause goes far beyond that; there has never been a situation where a person has been disqualified from nomination, though that is what the clause is proposing and what

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the amendment seeks to change. In other words, the clause would introduce something we have not had in our constitution for a century or more.
The electors of a constituency have always had the right to elect whom they wish, even if they wish to act irresponsibly. Numerous examples were given on Second Reading of such cases and I shall not weary your Lordships by repeating them; in fact, I shall credit all noble Lords present, and those who are interested outside, with having read the Official Report, and therefore they would have read the examples which were given at that stage. However, we also dealt on Second Reading with the possibilities of persons who could be covered by the clause, not just terrorists and gunmen but individuals who felt they should stand out on a conscience issue and who might find themselves acting contrary to the law and, as a result, imprisoned for a year or more. All those people, if still detained, could be debarred from nomination—the sort of people who in the past have stood for a constituency and about whom their constituents have said, "We admire what you have done and we shall elect you, even though we know you are not entitled to take your seat and vote in the House of Commons".
The amendment is designed to maintain the constitutional right of electors to choose whom they want. We have always stood for the right of constituencies to vote for whomever they want, and I hope noble Lords will appreciate that that is the principle of the amendment. I also hope noble Lords will remove from their minds the question of Northern Ireland; this must not he dealt with solely in the context of Northern Ireland because it is a great constitutional right. This House has always stood for the protection of constitutional rights. That is what the amendment is about and I hope noble Lords will support it.
Lord Hylton: I indicated on Second Reading that I supported the principle of this amendment, and I hope the noble Lord, Lord Underhill, will press it because in my view it is even more important than Amendments Nos. 2 or 4. My noble friend Lord Belstead on Second Reading indicated that the Government were anxious in the Northern Irish context to stop up certain loopholes. They may be doing so, but they had better he careful because they will find there are an enormous number of loopholes still open and usable which would be almost impossible to cure by any amount of legislation. I am thinking, for instance, of terrorists who have completed their sentences; of others who have been sentenced to terms of less than one year; and of the possibility of changes of name by deed poll, as was brought out—without reference to this Bill—in a Question in the House earlier today. In the past we have seen in other countries, particularly in the Commonwealth, many occasions when former terrorists have been negotiated with, been elected, become Prime Ministers and valued members if the Commonwealth. Can we sensibly say to a particular terrorist organisation, "You shall not try to make use of parliamentary and democratic procedure"? think we may be very unwise to do so.
Lord Belstead: The noble Lord, Lord Underhill, is of course entitled to ask what has prompted the
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Government to go beyond the provisions of the 1870 Act in putting this provision in the Bill—that disqualifications can extend to nominations—and the Government's answer to that is simple. The considerations really have changed in the intervening years. In more recent years the benefits accruing to candidates have increased enormously. I referred to some of them in moving the Second Reading; the free post facility, the free use of public rooms for election meetings and, most significant of all in the recent context, the many additional opportunities for coverage by the press and broadcasting authorities.
I am afraid we cannot put out of our minds what happened in Fermanagh and South Tyrone. The fact of the matter there was that those who put up a prisoner as a candidate in a parliamentary election gained by that act itself many opportunities, which they ruthlessly exploited, to spread their propaganda. It was against that background that we had to decide how we should respond in order to prevent that recurring. We decided that as imprisonment is a matter of fact, it should not be unreasonable to prevent the nomination of a prisoner disqualified from election under the Bill.
Incidentally, in suggesting, as has been suggested, that the provisions which the amendment seeks to remove would be a total constitutional innovation, that is not quite correct. Under the provisions of the Scottish local elections rules a returning officer could reject a nomination if he was not satisfied that the potential candidate was eligible to stand, for example on grounds of a prospective candidate holding a disqualifying office or because such a person was under the age for qualification, and the procedure embodied in the Bill is therefore not entirely new.
It was, I assure the House, a common theme of the many representations which the Government received about the election result in Fermanagh and South Tyrone that it should not be possible for a convicted terrorist to stand, let alone to be elected. The people who expressed that view were very much aware that it is not only the act of election but also the act of nomination and candidature during a run-up to the election which is objectionable. The effect of the amendment, if carried, would be that the matter of disqualification could not be resolved until after the election, probably on consideration by an election court of an election petition. Meanwhile, those who manipulated a hunger-striking prisoner, for example, whom they put up as a candidate, would be able to take full advantage of all the propaganda, all the distress, and all the disruption of the election process, and I do not think that is right. On those grounds the Government do not think the amendment is right either.
Viscount Simon: Towards the end of his speech the noble Lord spoke about the Scottish position, and if I understood aright, he said that the returning officer could refuse a nomination if the person was disqualified from standing. That is begging, the question, is it not? He cannot refuse a nomination because the person is disqualified from sitting. The Bill will require the returning officer to refuse a nomination because it is to disqualify the man from standing if he would be disqualified from sitting. I think that that is the point that the noble Lord, Lord Underhill, was

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making, and to that extent it is a new proposition. I am not at the moment arguing whether it is right or wrong, but it is a new proposition.
Lord Hale: I should like to add only a few words to what has just been correctly said, because there was a slight omission. In many circumstances the returning officer cannot know what is a disqualifying office. We have spent much time in passing Acts of Parliament to revoke discrimination against people who held tuppence ha'penny little offices. I am not speaking of them in a derogatory way, but they were offices of no great wealth. My noble friend makes a little signal to me which indicates that I can go a little further and say something that I was not going to say. Almost every day we have the privilege of seeing on the Front Bench a most distinguished Member who managed to disqualify himself quite unknowingly by having something to do with citrus fruits. A considerable number of Labour Members came into Parliament in 1945 and their disqualification was connected with accepting fees from a Government office, very properly, in the ordinary course of business. I do not think that that form of disqualification has very much to do with what has been said by the noble Lords, Lord Mishcon, and Lord Rawlinson of Ewell.
The noble and learned Lord, Lord Rawlinson, introduced the term "realistic". I do not doubt that the noble Lord knows most cases, but I wonder whether he knows of the case to which the noble Lord, Lord Mishcon, referred when he opened his speech. It is not now well known. It happened some time ago. The noble Lord, Lord Mishcon, stated the facts with absolute correctitude. I say that because I knew about the case; I had some connection with it. I knew the Member concerned. The noble Lord, Lord Mishcon, quite properly did not mention the name. The person ultimately retired from another place with the complete approval of his constituents and with their complete gratitude for his many years of service. He did not leave us so very long ago. He was a man of absolute probity. He was convicted by a British court of an offence that did not exist—an offence which had it been an offence, the court made quite clear he had no connection with, and no one could have believed it. I think that the use of the word "realistic" in connection with the law at all would have to be limited.
Viscount Massereene and Ferrard: Before my noble friend replies, may I ask what on earth would be the point of a candidate standing if he is disqualified from sitting? It seems completely nonsensical. My noble friend behind me said that it was unfair if a terrorist could not take advantage of the democratic process. My God! if he is a terrorist, he has no right to take advantage of the democratic process.
Viscount Barrington: I should like to say a few words in favour of what my noble friend has said. In reply to the noble Viscount, Lord Massereene and Ferrard, I would say that there is a difference between standing and sitting. It has been seriously suggested that certain noble Lords in this Chamber should be allowed to sit, but not allowed to stand up and speak. I would submit that these matters are quite different. Whether it is right or wrong to have sitting Peers
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who are not allowed to speak, or speaking Peers who are not allowed to sit, is an interesting question, but it does not alter the fact that sitting and standing are different things, which I think is what my noble friend was pointing out.
Lord Belstead: If I may reply to the noble Viscount, Lord Simon, I would say that the point that I was seeking to make during my remarks is that under the previous Scottish local election rules—and I think that by a slip of the tongue I said the present Scottish election rules—if a person was disqualified, a returning officer could have thrown out the nomination. It is that point which I believe is on all fours with what is being proposed in the Bill at present.
Viscount Simon: The noble Lord said, "If a person was disqualified"—but disqualified from what? Is he disqualified from standing or from sitting?
Lord Belstead: I do not want to make my speech all over again. I itemised the kind of ways in which the person could be disqualified, and perhaps the noble Viscount would care to glance through Hansard to see what I said.
4.56 p.m.
Lord Mishcon: It is an odd circumstance when former Scottish election rules are invoked so as to persuade noble Lords to do something by way of enactment in order to deal with a situation in Ireland. I hope that I am not being very insular when I say that this seems to be an odd geographical argument, to say the least. I want to add only a few words in answer to what the noble Lord has said. The arguments here have been very clearly expressed and there is no point in repetition. What is in issue here is as follows—and I beg of the noble Lord at least to listen to this argument. I was trying awfully hard to keep Ireland and Irish circumstances out of the argument, but if we are to legislate because of what is happening in Ireland, will the noble Lord consider what the situation is likely to be in regard to propaganda issued by those who are not disposed in a friendly way to this country's position in Ireland?
It is said that a person shall not be elected if he is serving a term of more than 12 months' imprisonment—and we have all been told that this is really all about the Irish terrorists who have been convicted and who are serving such sentences. In addition, we, the mother of democracy, not just the mother of Parliaments, say to the whole world that we go further than that. We are now preventing people who are in that position from being even nominated, and, in the language of the Minister, we are doing that because we do not want them at the cost of the state to be propagating in their literature and election addresses ideas that we abhor.
There immediately occurs to me the saying, which is often used, about hating opinions but defending to the death the right for them to be expressed. What we are saying at this moment to the whole world is that these people cannot be listened to because they have chosen the bomb instead of the ballot box. Public expenditure can be used by fascist candidates in this country in order to propagate racial hatred,
Clause 3 [Amendment of Parliamentary Elections Rules]:
Lord Underhill Lord Underhill moved Amendment No. 5:
Page 2, line 5, at end insert ("but notwithstanding anything in that Schedule, regulations shall be made to provide that the last day for an application for a postal vote shall be ten days before the day of the poll").
The noble Lord said: This is an amendment which strictly is not in any way associated with Northern Ireland; there can be no emotional arguments about this one. It is rather a technical issue affecting elections. The schedule of this Bill provides for the exclusion of Saturdays in calculating the days during the election period. It also provides for changes in the election timetable, for the last date of receipt of nominations and for polling day itself. The effect will be to change the last date for receipt of applications to be treated as an absent voter. The regulations as at present provide that this last date is 12 days before the day of the poll, excluding any excepted days.
If we take polling at a general election as normally being on a Thursday, then the last date for absent vote applications is the Thursday two weeks before. The changes in the schedule make this the Tuesday before then; that is, 16 days—counting all days—instead of 14 as at present. I have no doubt that the noble Lord the Minister will argue that under the schedule the period of the campaign from proclamation will be extended; but that is not the issue. Many noble Lords will have participated in elections and appreciate that work on the postal votes intensifies the nearer one gets to polling day. As canvassing increases, so the absent votes applications increase, particularly those for removals, which are usually found by canvassers as they are going around. To move the closing date for applications further away from polling day will be unwise, not only for those who are concerned with the democratic running of elections but also for the effect on electors.
I should like the noble Lord to confirm the information which I have, that this important change has been carried through without the normal type of consultation that there is with the political parties. I have never known in all my experience any amendment proposing absent vote changes—never mind other election law changes—to be made without consultation. It may well be that consultation might have led to rather a different provision in the schedule. It is the principle with which we are concerned and I hope that the Minister will find it possible to agree to this amendment. I beg to move.
Lord Belstead: On Second Reading, and again this afternoon, the noble Lord, Lord Underhill, has expressed concern that, as a result of the changes in the parliamentary election timetable, there will be less opportunity for electors to make postal voting applications, in that we may now only have a minimum of 16 "working days'" rather than 17 "working days'" notice of a parliamentary general election, while in the Representation of the People Regulations applications for postal votes have to be disregarded by the registration officer if they are received after the twelfth day before the date of the poll. May I say, in passing, that although I am a Member of your Lordships' House, I am very much aware, working on the opposite
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side in politics to the noble Lord, of the extreme importance of this particular provision in our law. Very often I have seen the date for the closing of postal votes coming towards me as I have gone rapidly from house to house. The noble Lord recognises that because Saturdays are no longer to be treated as "working days", we are in fact extending the normal calendar timetable of notice of a parliamentary general election by two days.
Before dealing with the substantive issue, I think I ought to draw attention to some deficiencies in the wording of the noble Lord's amendment. First it deals only with postal voting, but I am sure that the noble Lord would wish to apply the same rules to proxy applications if it was going to be written into law. Secondly, the amendment refers to "applications", although I assume that it is intended to refer to the receipt of applications rather than merely to the day on which they are sent. Thirdly, this Bill does not in fact confer any regulation-making power on the Secretary of State. Any new regulations to deal with postal voting, amending the 1974 regulations with which the noble Lord, Lord Underhill, is familiar, could fall to be made under regulation-making powers in the Representation of the People Act 1949. In fact the provisions in paragraph 2 of the schedule to this Bill dealing with the computation of time does not affect the Representation of the People Regulations 1974, in which there are specific computation of time provisions separate from those in the 1949 Act. If the Bill is passed, therefore, while Saturdays will no longer be working days for the purposes of nomination and other proceedings set out in the parliamentary elections rules in the 1949 Act, the provisions of the regulation under which application for postal votes may be made and received on Saturdays will not be affected. It does not therefore follow that on all occasions there will be less time for making and receiving absent voting applications. The amendment which is I am sure designed on the false assumption that Saturdays are not working days, does not seem at this stage, at least, to be necessary.
The Government accept, however, that to have two separate computation of time provisions, which will no longer be in parallel, may not prove to be satisfactory. It may be necessary to revise the Representation of the People Regulations to clarify the matter. As the noble Lord knows, it is the practice of the Government to consult ad hoc with the electoral registration officers' representatives and the political parties on changes such as this. If it is necessary, we shall certainly do so on this occasion. With that assurance, I hope that the noble Lord will feel able to withdraw his amendment. It has been valuable that we have been able to discuss this matter, which, as the noble Lord says, is really divorced from the rest of the Bill.
Lord Underhill: May I first accept what the noble Lord said about the drafting of the amendment. All I can say in excuse for myself is that this raises the very point which my noble friend raised, that these amendments had to be put in at such short notice, and this one was put in in handwriting at nine o'clock at night. I accept the corrections that the noble Lord has made.
I appreciate that there will be opportunities for

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consultation with the returning officers and also with the political parties. But that cannot affect this Bill, because this Bill is going to be passed through all stages today. Therefore, unless the noble Lord the Minister can possibly bring forward an emergency manuscript amendment, we have to approve the Bill as it is now, including the schedule. However, in view of what the Minister has said I will not press the amendment. I hope that possibly in the future there will be some amending regulation. I hope only that it will be kept in mind that the point I was making is not that there will not be the same amount of time to get postal votes but that the closing date for the receipt of applications will be moved further away from polling day, and the further it is moved away from polling day the greater the difficulty as far as the electors are concerned. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 agreed to.
Clause 4 [Citation]:
5.30 p.m.
Lord Mishcon Lord Mishcon moved Amendment No. 6:
Page 2, line 8, at end insert—
("( ) This Act shall remain in force until the expiry of the period of twelve months beginning with the passing of this Act and shall then expire unless continued in force by an Order made by the Secretary of State which shall be laid before and approved by a Resolution of each House of Parliament.").
The noble Lord said: The noble Lord opposite, who has much experience in matters of voting and Divisions, pointed out to me with a smile about 10 minutes ago that I had acquired far more votes when speaking briefly than when I had addressed your Lordships at some length. I hope to learn from the lesson! I merely have to commend this amendment, which your Lordships will see seeks to make this Bill one which will be in operation for 12 months and thereafter can be renewed by order of the Secretary of State, provided it has the approval of both Houses. A small point which I am sure your Lordships will appreciate is this. We have been driven, if I may use that word, into this Bill by events which have occurred in Northern Ireland, which all of us deplore. In my view, we have not really had an opportunity of doing more than saying we must pass this Bill as a temporary measure in order to deal with the situation in Northern Ireland. The Committee may well accept that as a proper Act. At this very moment in another place, I believe they are considering whether or not to prolong the legislation which deals with the question of terrorism in Northern Ireland, and your Lordships may think it appropriate that this Bill, if passed, shall be for a period of one year, and if indeed it is shown to be an enactment which has not the defects some of us feel it might have as a constitutional Bill, it can go on thereafter purely by order of the Secretary of State and approved by Parliament. But, if we find that it has not worked in the way we think it should, we have an opportunity then of bringing this measure to an end. I beg to move.
Lord Jenkins of Putney: My noble friend has been so brief that he renders it possible for me to add a few
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words in support without taking up more time than would be normally taken up by a single speech, because I shall emulate him in being equally brief. It seems to me that what he has said is very cogent indeed and I hope that the noble Lord will see his way to accept what my noble friend has said and to accept the amendment.
I think it is generally agreed on all sides of the Committee that this Bill is brought forward because of events in Northern Ireland. Therefore, we have a Bill of general application, because in the Bill itself there is no specific reference to Northern Ireland although we all know that is the causation of the Bill; and so we have the position where, because of a particular case, a general proposition is put forward. Where a general proposition or a general "cure" is put forward in order to deal with a specific case, this seems ideally suited for temporary legislation, and therefore I would have thought that my noble friend's argument is very persuasive and I hope that the noble Lord, Lord Belstead, will see his way to accept it.
Lord Hylton: I should like to support this amendment and I very much hope that my noble friend will feel able to accept it. He said on Second Reading at col. 143 on 30th June 1981:
"…the Bill is aimed…at those who organise terrorism,".
I think we all hope, regardless of party, of where we live or anything else, that terrorism will not be a permanent feature of the life of this nation. Therefore, this seems to me an extremely suitable subject for temporary legislation.
The only other point I would make is that the organisation known as Provisional Sinn Fein is a perfectly legal party. At some time they may decide to put up candidates who are convicted felons and sometimes they may decide to put up ordinary civilians. That is up to them. I do not think we should exercise a judgment by statute, and by permanent statute, on what sort of candidate a legal party may put up.
Lord Rawlinson of Ewell: I regret that I disagree with my noble friend. I think that this Bill is right in principle. I do not think it is right that anyone who, as we say, stands for Parliament or, as the Americans would put it, runs for office, who wishes to represent a constituency in Parliament and who has been convicted of offences and sentenced to a term of imprisonment for more than one year, should be allowed to stand. I do not think it is right that a person should so stand and therefore I believe the Bill is right in principle.
Lord Swinfen: I should like to support what my noble friend has just said because I also am not in favour of this amendment. If the other place had, in their own wisdom, thought it right that people who were convicted should stand for Parliament, they themselves would have brought forward this amendment. They are very careful and caring about their own honour and integrity, and I do not think it is right that we should disagree with them at this stage by passing this amendment. I therefore hope that it will be rejected.
Lord Belstead: I welcome the opportunity to make again a point that I have made before but which I think bears repeating. I do not think that the country will believe it to be right—this year, next year or the year after—that a prisoner serving a substantial sentence should be elected to another place because it is then impossible for such a person properly to represent all his constituents, including those who did not vote for him. The people of the constituency are in effect disenfranchised. Moreover, the candidature of prisoners who have been convicted of serious offences and people who, as we have seen in the recent election in Northern Ireland, have no intention or wish to represent anyone in Parliament and yet are still able to enjoy all the privileges of candidature really does provoke a feeling of outrage among the public and brings our electoral system into disrepute. The Government therefore have no hesitation in bringing forward this measure, and see no justification for constricting its operation by an arbitrary time limit.
Perhaps I might say finally that we believe that the disqualification of convicted prisoners, which is common to virtually every other democratic electoral system, is a desirable feature of our electoral law. Of course the Government cannot bind future Parliaments: they may take another view. But for the moment we believe that Parliament is ready to take a view on this issue and that the public expect us to pass this Bill without qualification.
On Question, amendment negatived.
Clause 4 agreed to.
In the Schedule.
5.40 p.m.
Lord Underhill Lord Underhill moved Amendment No. 7:
Page 3, line 40, leave out paragraphs 4 and 5.
The noble Lord said: This amendment seeks to delete two new rules in the schedule. Paragraph 4 gives the returning officer power to disqualify a nomination. Paragraph 5 is consequential and sets out the procedure to be followed in carrying out paragraph 4. I propose to concentrate my few remarks on paragraph 4, because that is the important amendment.
At present, a returning officer determines only the validity of nomination papers—I emphasise that—on two grounds: first, that the details of the candidates and others who subscribed to the paper are not as required by law; and, secondly, that the papers are not subscribed as required by law. There is no other reason. Up to now, the returning officer has not had any power or responsibility to determine whether a person is fit and proper to be nominated. The returning officer has adjudicated only on the completion of the nomination paper.
Again, we may be quoted past Scottish local election rules, but what I am saying applies to parliamentary elections throughout the United Kingdom, to parliamentary by-elections throughout the United Kingdom and also to local elections in England and Wales. Therefore, we are bringing in a completely new power for a returning officer.
At the moment, if there is any challenge following an election, the position can be dealt with either by a decision of the House of Commons, if a person is
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elected and it wishes to take action, or by an election petition. This issue again must not be considered in the context of Northern Ireland. It must be looked at only from the standpoint of extending election law to give an additional responsibility to the returning officer, which he has never had previously. Therefore, once again, a fundamental change is being made in election law.
Whatever other consultations there may have been, I can assure your Lordships that one important political party has had no consultation at all about this change in election law. Developing this power of a returning officer is surely an important change, on which there ought to have been consultation, and this Bill will now bring in this important change. As the proposed amendment moved by my noble friend Lord Mishcon was negatived, that means that there will be no opportunity to come back to this, unless at some time the Government introduce completely new regulations. Because of this change in election law, I beg to move.
Lord Belstead: I hesitate to cross swords with somebody with such experience of this whole subject as the noble Lord, Lord Underhill. But all the Bill is doing is imposing on a returning officer a duty to examine a candidate's qualification on the one ground alone; namely, that the candidate is not serving a sentence of imprisonment of more than one year. That will be a matter of fact, and if the returning officer is clear that the candidate is in prison for more than one year, it is on that one ground alone, as a matter of fact, that the nomination will be rejected.
Of course, as I was at great pains to try to say on Second Reading, if the returning officer is not sure and it appears to be a matter of discretion, then he will obviously use his discretion in favour of the candidate and the matter will go forward. Then, if it is found that the candidate is serving a period of imprisonment of more than one year, it will be a matter of voiding the election. This is perfectly reasonable, so far as returning officers are concerned. All the Bill does is to ask them to adjudicate on a matter of fact. On that ground, I hope that the noble Lord may reconsider his amendment.
Lord Underhill: It is correct that we are asking the returning officer to adjudicate on a matter of fact. Therefore, so could the returning officer be asked to adjudicate on every other matter of fact, dealing with every other type of person who could be disqualified. I shall not go into that now, but on Second Reading the Minister detailed all the categories of persons who are now disqualified from sitting or voting in the House of Commons. One could place all those responsibilities on the returning officer, as matter of fact. But we are not doing that. We are picking out just one, and we are extending that power.
In view of what the Minister has said, I shall beg leave to withdraw the amendment. But I hope that he and his department will give serious attention to this point, because the Bill is extending a power and I am certain that many people will wonder why there is this one extension of power. There could be a danger of

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extending a returning officer's power to adjudicate on an individual's qualifications, instead of on the completion of the nomination paper. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule agreed to.
Title agreed to.
House resumed: Bill reported without amendment.
Then, Standing Order No. 43 having been dispensed with (pursuant to Resolution), Report received.
Lord Belstead: My Lords, I beg to move that this Bill be now read a third time.
Moved that the Bill be now read 3a.—(Lord Belstead.)
5.47 p.m.
Lord Mishcon: My Lords, I had forgotten the rapid programme of this Bill when I addressed the House earlier, and asked the noble Lord the Minister whether he could deal with a point which worried me on Clause 1. I am now dealing only with a defect in the Bill. I am obviously not dealing with the policy of the Bill. I invited him, since I had taken him by surprise, and knew it, to write to me if he wished. But I had forgotten that, in spite of the rapidity of our Post Office, which we all know about it was wrong to expect that I would be getting a letter—when I invited him to do this only an hour ago—by the time the Third Reading of this Bill had been reached. I am worried and I do not know whether the noble Lord the Minister can carry this matter any further.
May I just remind your Lordships very briefly of what the point was. Clause 1 reads as follows:
"A person found guilty of one or more offences"—
and the noble Lord the Minister, in answer to a question that I put, said that, yes, it would be an offence if it were a question of criminal contempt—
"… and sentenced"—
that would not necessarily apply to criminal contempt on my point—
"… or ordered to be imprisoned or detained indefinitely"—
those were the words on which I concentrated—
"… shall be disqualified for membership of the House of Commons while detained anywhere in the British Islands or the Republic of Ireland in pursuance of the sentence or order or while unlawfully at large at a time when he would otherwise be so detained".
I conceded at once that it is not usual, so far as I know, that in a case of criminal contempt there is an indefinite sentence. As we know, that is very often the case in civil contempt, where somebody is imprisoned for breach of an order until the contempt is purged. But in criminal contempt, it is still possible for a court—and this has been done—to say to somebody "You have been in contempt of court. You will be detained indefinitely and I will make up my mind, very possibly, about the sentence when I know that you have apologised or behaved in a way in which you ought to have done". There are, therefore, cases that are quite possible, where somebody has been a Member of the House, or been a parliamentary candidate, and has offended a magistrate or a judge in that way and finds that on the very vital day—
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namely, the day of nomination or election, or subsequently, while sitting as a Member of the House—he has been ordered to be detained indefinitely. It is this which troubles me. It is a genuine point. It is not one that is meant to have any significance regarding the policy of the Bill. However, bearing in mind the rush that we are faced with, I am anxious that we should not do something foolish. That is my reason for raising the point. If there is a complete answer I shall retire, I hope gracefully, from the point.
Lord Hylton: My Lords, from what my noble friend the Minister has said several times during the course of the passage of the Bill, it is quite clear that its prime motive is an anti-terrorist one. It has been introduced because of the concern, anxiety and disquiet which have been expressed by many sides to the Government about abuses of the parliamentary process by terrorists. Can my noble friend therefore explain why it has been found necessary to tack on to the Bill certain matters which deal with the technicalities of all elections? The noble Lord, Lord Underhill, moved two amendments, one dealing with postal votes and the other with returning officers, which have absolutely nothing to do with terrorism. The course which the Government have adopted seems to be particularly strange because, as I understand it, a general review of electoral law is taking place in the Home Office. I should be grateful if my noble friend could answer this question—all the more so because we have had to consider the whole Bill in a mere 48 hours.
5.52 p.m.
Lord Jenkins of Putney: My Lords, the Bill is unique in at least two respects. The first is that the primary reason for the penalty which is adduced in the Bill—disqualification from standing for Parliament—is one which may be exacted in any country in the world. In other words, the guilt for which the penalty may be exacted may be found not only in this country but anywhere else in the world. The word "elsewhere" means "elsewhere". Therefore we in these Houses of Parliament are saying that, in determining the question of guilt, we shall allow the laws of any country to apply. As I said at Second Reading, this must be unique. I cannot think of any other measure which has ever passed through Parliament in which Parliament has said that we shall decide that the guilt determined in any country, whether we approve or disapprove of that country, whether it be a dictatorship or any other kind of country, will be the determining factor as to whether or not the penalty applies.
The noble Lord says, "Yes, but there is another qualification. He has not only got to be found guilty; he has also got to be detained in this country or in the Republic of Ireland". The Minister also says that the word "elsewhere" in the Bill—this is its second unique characteristic—does not mean "elsewhere". This is the only Bill I have ever known in which a Minister has said that a word does not mean what it says. The noble Lord told us what the word "elsewhere" means. I endeavoured in an amendment to the Bill to spell out what the Minister had told us at Second Reading is really meant by the word "elsewhere". The Minister told us earlier today that he

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was not quite right then: that its meaning was a little different, but he was quite unwilling to substitute for the word "elsewhere" what he says is meant by "elsewhere". In other words, he insists upon having in the Bill the word "elsewhere", which he says does not mean what it says, rather than that there should be put into the Bill the words which he says it does mean.
So in two respects the Bill is unique. It is unhappily unique, in the sense that it takes into account the question of guilt elsewhere in the world and also in the sense that it includes a word which the Minister himself says is not the word which is really meant. These are two things which these Houses of Parliament do not normally do. I am glad that they do not do it and I think that they ought not to do it in this Bill.
Lord Rawlinson of Ewell: My Lords, may I return to what the noble Lord, Lord Mishcon, posed as a question to my noble friend the Minister? It is very rash always to try to give answers to legal matters from the Back-Benches. It is easier to pose questions. However, it seems to me that in Clause 1 a person has to be found guilty of one or more offences. The word "offence" is the governing word. It appears to me that the offence can only be, in matters of contempt, criminal contempt. Criminal contempt is governed by the powers of the court to order settled terms of imprisonment. It is in civil contempt that indefinite orders are sometimes made. If somebody is in breach of an order of the court with regard to a matrimonial matter or a matter of property that is civil contempt, and it seems to me that in those cases it would not be an offence. This is my preliminary feeling about the very important and interesting question which has been raised by the noble Lord, Lord Mishcon: that where it is a civil contempt, where there may be an indefinite detention, it does not become an offence and therefore does not come within Clause 1 of the Bill. As I have said, it is a very rash man who gives an answer. It is a crafty man, though, who poses the question.
Lord Mishcon: My Lords, with the permission of the House and before the noble and learned Lord sits down, may I thank him very much for his intervention. It was very courageous of him and it was typically helpful. I did concentrate on criminal contempt and I took the precaution of looking up the authorities, which appear to say that a judge in a criminal court still has the right to impose an indefinite sentence and is not bound by statute to impose a fixed sentence, although it is the custom of the court so to do. That may he wrong and I may have misread the authorities. However, the rush that we are in makes it necessary, in my view, for me to raise the point. I have done it as a matter of conscience. If I am proved to be wrong hereafter I have wasted only a moment or two of the time of the House. If I am proved to be right, it is one of the reasons for saying that a Bill of this kind ought not to be rushed in this way.
Lord Belstead: My Lords, it only remains for me to say, as the House would expect me to say, that both my noble and learned friend Lord Rawlinson and the noble Lord, Lord Mishcon, are both right, speaking for the different branches of the law. I shall not say
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any more about what they have said. However, I think I am correct in saying that the Contempt of Court Bill which was the subject of further consideration yesterday in your Lordships' House, will remove the power of the court to imprison somebody for an indefinite period of time for either civil or criminal contempt. If I am wrong about that, I will most certainly write to the noble Lord, Lord Mishcon. However, although it is perhaps uncharacteristic of me to claim it, I believe that I am correct.
May I reply to my noble friend Lord Hylton? He asked me, perfectly reasonably, why the schedule is in the Bill. The schedule is in the Bill because it deals, among other things, with such matters as the rejection of nominations, which is an integral feature of the Bill, and the power of a returning officer to reject nominations. This is a necessary power, the Government believe, to be included in the Bill. It also deals with certain timetabling provisions which we have debated with the noble Lord, Lord Underhill. These are necessary parts of the Bill. I think I have already debated the point which the noble Lord, Lord Jenkins of Putney, raised. Therefore I hope that the Bill may now be read a third time.
On Question, Bill read 3a, and passed.

Business
Lord Denham: My Lords, with the leave of the House, and with apologies to the House, it may at this moment be convenient if I now do what I omitted to do at the beginning of business today. I should like to confirm that dinner will be available this evening at the usual time. The Report stage of the Transport Bill will be adjourned for a short period some time after 7 o'clock, and the Third Readings of the Indecent Displays (Control) Bill and the Countryside (Scotland) Bill will be taken during the adjournment. I must again apologise to the House for my previous omission.

Transport Bill
6.1 p.m.
Report received.
Clause 3 [Power of Secretary of State to give directions.]
Lord Underhill Lord Underhill moved Amendments Nos. 1 and 2:
Page 3, line 37, leave out ("(notwithstanding any duty imposed on them by section 3(1) of the Transport Act 1962)")
Page 3, line 39, at end insert (": Provided any such directions are not contrary to any duty imposed on the Board by section 3(1) of the Transport Act 1962).
The noble Lord said: My Lords, it may be to the convenience of the House if Amendment No. 2 is taken together with Amendment No. 1. During the Committee stage a number of noble Lords expressed concern about the general contents of Clause 3 in regard to the powers that it gives to the Secretary of State. The clause empowers the Secretary of State to give directions to the Railways Board, to establish subsidiaries, and to dispose of the whole or part of the undertaking of a subsidiary. I would draw your

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Lordships' attention to subsection (2), which reads as follows:
"It shall be the duty of the Board (notwithstanding any duty imposed on them by Section 3(1) of the Transport Act 1962) to give effect to any directions given under this section".
At a later stage, when speaking to another amendment, I will deal with the general question of the power of the Secretary of State to give such directions, but this amendment relates solely to the duties placed on the board by the 1962 Act.
I believe it would be useful if I explained exactly what Section 3(1) of the Transport Act 1962 says, and I quote:
"It shall be the duty of the Railways Board in the exercise of their powers under this Act to provide railway services in Great Britain and, in connection with the provision of railway services, to provide such other services and facilities as appear to the Board to be expedient, and to have due regard, as respects all those railway and other services and facilities, to efficiency, economy and safety of operation".
That is precisely what the subsection says.
At the Committee stage I proposed an amendment to ensure that any disposal of assets, or of a subsidiary of the Railways Board, should not relate to the establishment of a company to operate a particular railway line or network. The noble Lord the Minister assured me that such fears were unnecessary. I note from col. 1384 of the Official Report for 4th June that the noble Lord the Minister said:
"The board have a duty under Section 3(1) of the Transport Act 1962 to provide railway services and these disposal powers do not override that duty. If the board chose to sell part of the network as a going concern they would be in clear breach of that duty".
I now refer to the words set out in the amendment before your Lordships, namely:
"(notwithstanding any duty imposed on them by Section 3(1) of the Transport Act 1962)"
I ask the Minister to study those words carefully. In the light of what the noble Lord the Minister said at Committee stage—that if the Railways Board went against the powers of the 1962 Act they would be wrong—I cannot see how we can now give powers in this clause to the Minister to direct the board to do things notwithstanding the powers placed upon them. It seems that one or the other of those statements is contradictory. What the two amendments seek to ensure is that the Secretary of State shall not give directions irrespective of the powers given to the Board by the 1962 Act but instead that any direction he gives shall not be contrary to those powers. It seems to me that those two amendments are very reasonable and would be fully in line with what was said by the noble Lord the Minister at Committee stage. I move the amendments.
The Deputy Speaker (Baroness Wootton of Abinger): Does the noble Lord, Lord Underhill, wish the two amendments to be moved en bloc?
Lord Underhill: Yes, my Lords.
Viscount Simon: My Lords, I should like to support these amendments, but before doing so may I humbly suggest to the noble Lord, Lord Underhill, that he made a slip of the tongue. He spoke about the "powers" of the Railways Board but I believe it is the duties of the board which we are concerned with
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here. It seems to me that if the board has these duties and if the Minister has said that the board would be failing in its duty to adopt these other duties, then it is quite incredible that the Minister should have power to instruct the board to do something that it is not allowed to do under the Act. I do not believe there is anything more I wish to say. I fully support these amendments, although when the time comes I would actually prefer Amendment No. 4 to these amendments.
6.6 p.m.
The Parliamentary Under-Secretary of State, Department of the Environment (Lord Bellwin): My Lords, I do not wish to explain at length at this point the philosophy underlying Clause 3 because I think that the proper place to do that will be when we come to discuss a later amendment which seeks to delete the whole clause. I merely wish to repeat a point that my colleagues and I have made on many occasions already: that the Government are proceeding with the agreement of the Railways Board, and that they are in the lead. However, having allowed the board to take the initiative, it is surely reasonable that the Government should protect its position by having reserve powers—powers of last resort—to direct the board in carrying through the policy. By now your Lordships may be a little weary of hearing me say that these are "reserve powers", but this is such an important and fundamental point that I must emphasise it again here before passing to the specific amendments.
Powers for Ministers to give direction to nationalised industries are common enough in existing legislation. In quite a few cases these powers enable a Minister to direct an industry to dispose of assets or to cease a particular activity. Both sides of the House have promoted legislation of this kind when in government and I will give examples of that when we debate Amendment No. 4. However, I believe it is common ground between us that it is necessary for Ministers to have certain powers to direct nationalised industries. I believe that both sides of the House would also agree that where powers of direction exist, they need to be clear and effective. There is no point in enacting powers which are ambiguous and which are therefore open to legal challenge. Such powers are generally unusable and there is simply no point in putting them on the statute book.
This brings me to the purpose of subsection (2) of Clause 3, and particularly to the words between brackets which are at issue here. But before I explain their purpose I should like to point out that subsection (2) in its present form is the result of an Opposition amendment which the Government accepted at Committee stage in the other place. There it was suggested that the original drafting, which referred to the board's duties under "any other enactment", was too wide, and we accepted that a specific reference to Section 3(1) of the Transport Act 1962 should be substituted. The purpose of subsection (2) is to place the Railways Board under a duty to comply with any direction given under Clause 3. This is a necessary and conventional provision. The words in brackets provide that the board's duty under this subsection shall override their duty under Section 3(1) of the Transport Act 1962. This is essential to avoid any

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ambiguity and to ensure that if it is necessary for the Secretary of State to give a direction it will be clear beyond all doubt that the board's duty under this Bill is the one that it must follow.
I agree that this is an unusual provision, but then the circumstances are unusual. The point is that the board's main statutory duties under Section 3(1) of the 1962 Act are drawn very widely. They are:
"To provide railway services in Great Britain and, in connection with the provision of railway services, to provide such other services and facilities as appear to the Board to be expedient"
It is in effect the board itself that determines the extent of its statutory duty. Although this is similar in some respects to the duties of the other boards set up under the 1962 Act, it seems to have no parallel in other nationalised industry legislation.
Your Lordships will, I am sure, see that, if these amendments were accepted, the Government might find themselves in the position in which the board went back on their undertaking to introduce private capital into, let us say, Sealink and, on receiving a direction to dispose of a controlling interest in the company, claim that they regarded it as expedient to continue to provide shipping and harbour services as an adjunct to the railway, and that therefore they were under a statutory duty to do so. This would probably frustrate the Secretary of State's purpose in giving a direction.
So these amendments are, in practice, wrecking amendments so far as Clause 3 is concerned. If they were carried, the Government's position would be undermined as surely as if the whole of Clause 3 were deleted from the Bill. For that reason I have to say that they are not acceptable to us and, in view of the rather detailed explanation I have given, I hope the noble Lord may feel able not to press the amendments.
Lord Underhill: My Lords, I am grateful to the noble Lord the Minister for his detailed reply, but it does not help me at all; perhaps it is because I am dense. It is suggested that we must avoid any ambiguity, but frankly any ambiguity must be in existence when one says that a board must adhere to the duties and powers placed upon it by an Act but then goes on to say that the Minister can give powers notwithstanding those obligations. That seems to me to create ambiguity itself and that is what the Bill is doing. The question of the reserve power is completely irrelevant at this stage. As the noble Viscount, Lord Simon, said, that is something that we can discuss when we come to other amendments.
The reference to Sealink is very interesting, and maybe I can quote that when we come to Amendment No. 3, which is a rather important one. It is clear that the Government and I do not see eye to eye on this question. I will read very carefully what the Minister has said to see whether or not there is still so much ambiguity that we may have to come back at Third Reading, but at this stage I beg leave to withdraw the amendments.
Amendments, by leave, withdrawn.
6.13 p.m.
Lord Underhill Lord Underhill moved Amendment No. 3:
Page 3, line 39, at end insert—
("( ) In the event of the Board being of the opinion that any directions which are proposed to be given or are given in accordance with subsections (1) and (2) hereof are contrary to the best interests of the Board or are not in accordance with its duties under section 3(1) of the Transport Act 1962, the matter shall be determined by an enquiry. Any such enquiry shall be conducted in accordance with regulations to be made by the Secretary of State by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.").
The noble Lord said: My Lords, this amendment continues the consideration that we have been giving to the power of the Secertary of State to give directions to the Railway Board. I must point out that the clause says that he can give such directions to the board to act in a specified manner. At the Committee stage the noble Lord, Lord Bellwin, stressed that it was not expected to have to use these powers, but it was reasonable that, if necessary, the Secretary of State should have such powers. The noble Lord emphasised, as he has again tonight, that these are only reserve powers.
At the Committee stage various other noble Lords stressed that there were no criteria in the Bill for invoking these provisions as a reserve. It was suggested, also, that there should be provision for some form of inquiry or arbitration should there be disagreement between the Rail Board and the Secretary of State. Naturally, if both the board and the Secretary of State are in agreement, there is no need whatever for the Secretary of State to give directions. Therefore, the use of what is called a "reserve power" would be only when the Secretary of State considers that the situation is such that he has to direct the board. So the amendment seeks to make provision where any directions by the Secretary of State are considered by the board to be contrary to their best interests, or they consider that such directions are not in accordance with the powers placed upon them by the 1962 Act.
The noble Viscount, Lord Simon, has referred to "duties". The Act says,
"shall be the duty of the Board in the exercise of their powers under this Act",
and the side heading refers to "duties and powers of the Railway Board"; therefore I take it that it refers to both duties and powers. The amendment seeks to provide that where any directions by the Secretary of State are considered to be contrary to their best interests or contrary to the provisions of the 1962 Act, the question shall be determined by an inquiry. The amendment goes on further that any such inquiry shall be conducted in accordance with the regulations which shall be made by the Secretary of State. Again, this seems to be a reasonable amendment. We are saying, "All right, reserve powers the Government feel that they must have; therefore if the board considers that these are against its interests or against the provisions of the 1962 Act they should have opportunity to make representations". We are suggesting that these should be made by some form of arbitration or inquiry and that such inquiries should be conducted in accordance with regulations made by the Secretary of State himself. I beg to move.
Lord Bellwin: My Lords, I made the point when we were discussing the last pair of amendments that, if there was to be any point in taking powers of direction, the powers needed to be as clear as possible. If there is ambiguity about the way they are drafted or if the uses to which they can be put are uncertain, the powers are not worth having. The powers are wanted to ensure that the Government's policy of privatisation can be achieved—it is not an appropriate role for an independent inquiry to examine the merits of declared Government policy. For that the Secretary of State is answerable to Parliament. When, during the Committee stage of the Bill, the noble Viscount, Lord Simon, originally suggested the possibility of arbitration or an inquiry to settle differences of view between the board and the Government, the noble Lord, Lord Mishcon, said:
"Arbitration or an inquiry on a matter of this kind may be difficult ".—[Official Report, 3/6/81; col. 1409.]
Clearly, he did not convince his noble friend Lord Underhill, but I think that Lord Mishcon's first reaction on that occasion was right, because this proposal is full of difficulties. Clearly the Secretary of State would not in normal circumstances need to give the board a direction to do something which they were prepared to do of their own volition. If a direction were given, it would be to an unwilling board who would not regard it as being in their best interests. So an inquiry would not be an exceptional happening, used to marshal the arguments in some particularly knotty case. On the contrary, it would presumably be necessary in every case and such a system would be unprecedented.
There are numerous powers for Ministers to direct nationalised industries in existing legislation and in no case are these subject to this kind of provision. In all other cases Parliament has given the last word to the Secretary of State. He is charged with oversight of the industry and, where he considers it necessary to give a direction, he will take account both of the interest of the industry concerned and of the wider national interest. He is accountable to Parliament for the way in which he uses his powers. An inquiry would merely go through the same processes of weighing all the factors that the Secretary of State must himself go through before giving a direction. It could not be asked to interpret the law because that is a matter for the courts and it should not be asked to consider whether the policy is right because that is an issue for Parliament. It is not necessary and, to the extent that it would create uncertainty and give scope for delaying tactics, it would be positively undesirable in a reserve power which we have made clear will be used only in circumstances where the board and the Secretary of State do not see eye to eye on their objectives.
I hope the House will agree that the Secretary of State has been quite open about his intentions towards the board's subsidiaries. He has told Parliament which businesses into which he wishes private capital to be introduced and has given notice that there are some other areas which, in his view, may benefit from private capital but for which there is at present no settled policy. He has undertaken to report any significant extension of the policy to Parliament. He is
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content for the board themselves to take the lead in implementing the policy, leaving them a large area of discretion as to how to do this but he wishes to have reserve powers to safeguard his position. It is after all a joint policy and both parties need the power to ensure that it is implemented. The board themselves understand and accept this. In view of what I consider to be the eminently reasonable and responsible attitude that the Government have taken, we do not feel that there is any need for this amendment.
Viscount Simon: My Lords, I feel that we shall really want to discuss the broad matter on Amendment No. 4. I wanted to ask one question. He did say that the directions given by the Minister would be subject to Parliament, but, with respect, that does not appear to be in the Bill; he merely gives the direction. I admit, of course, that Members of Parliament can then ask the Minister why he has done it, but the directions are not subject to parliamentary control.
Lord Bellwin: My Lords, surely in all situations of this kind all matters that would indicate a deviation from anything which has been said as regards the general policy are normally reported to Parliament. It was in that sense that I said that Parliament would then be able to have its say. It was in that sense I meant it rather than the wording of the Bill.
Lord Underhill: My Lords, my noble friend Lord Mishcon did say it might be difficult to have an inquiry but he did not say it would be wrong to try to have an inquiry. We do not avoid things that are difficult if they are desirable and necessary. In moving the amendment, I did so because I thought it was desirable. I am inclined to agree with the noble Viscount, Lord Simon, that we can dispose of this possibly far better by dealing with the whole of the provision, Clause 3. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.22 p.m.
Lord Underhill Lord Underhill moved Amendment No. 4:
Leave out Clause 3.
The noble Lord said: My Lords, as I have said already, I regret that the Minister has not seen fit to accept what from these Benches we regard as very reasonable amendments to ensure that any directions given to the board shall not be contrary to the provisions of the 1962 Act and provide for an inquiry where the Minister may consider the reserve powers are necessary. Therefore, I think there is no alternative but to move the amendment to leave out the entire clause. Extreme arbitrary powers are given in this clause to the Secretary of State. He can give directions, and frankly that means instructions, to the board to establish a subsidiary. We all know that the purpose of giving such an instruction to establish a subsidiary is for the purpose of eventually disposing of that undertaking. Or he can give instructions to dispose of the whole or part of any undertaking. He can also direct the board to carry this out in any manner that he shall prescribe.
Admittedly the clause says he has to consult the board, but that is all he has to do. He can consult the board, but if the board says, "Sorry, Minister, we do not

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agree", he can still give them instructions to carry it out.
We have been told time and time again that it is the purpose of this Government not to interfere with the general management of nationalised industries. We have this power here for which there is no criterion for the reserve power. That is why I proposed the amendment for some form of inquiry. The Minister has repeatedly said that this is a reserve power, that I can trust the Secretary of State. But I remind your Lordships, as I said on Committee stage, that whatever may be the merits of the present Secretary of State he may not always be there; other Secretaries of State might like to use this power, and instructions can be given under this clause which are not necessarily a reserve power. The claim that a thing is a reserve power when there are words in the Bill which do not make it a reserve power is surely something your Lordships must consider.
Time and time again it has been said, and I have always been told this when I have been dealing with resolutions and what is in a constitution, it is what is written down that matters, not all the speeches, not all the assurances. In this Bill quite definite powers are given to the Secretary of State which we regard as completely excessive. In the light of these points, in the light of the failure of the Government to agree to reasonable amendments, I move the amendment to delete the entire Clause 3.
Viscount Simon: My Lords, I should like to support this amendment. I do not particularly like doing it. I appreciate it is part of the scheme which the Government have thought out, and as the Bill has been given a Second Reading we must try and help it to work. But I really feel that the power given to the Secretary of State to interfere in these matters of detail—not merely to tell the board what to do but to tell them how to do it, to tell them to dispose of things, even what price they are to get for them and so on—really involves the Minister in far too much interference. The noble Lord says—and I cannot challenge it because I do not carry these things in my head—that other nationalised industries have similar powers for the Minister. I know they do in some cases. I would have thought that the party opposite were on the whole rather opposed to that and preferred to think of the nationalised industries as being run by a competent board of management and that provided they kept within the Act which established them they should not be interfered with. Certainly there are always a great many complaints when Ministers issue instructions to the nationalised industries to do this, that or the other.
There is another point which has worried me about this. I think the Government will still say they do not want Parliament to get involved in the detailed day to day running of the nationalised industries. The Minister protects himself by saying he does not want to get involved in the detailed running of the industries. But surely if we give the Minister power to do these things we give Parliament, every Member of Parliament in this House and another place, the right to ask the Minister and to press the Minister to exercise these powers. This seems to me one of the great objections to giving Ministers these sort of blanket powers in
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the running of nationalised industries. They really cannot logically then hide behind the smokescreen that they do not want to interfere. If Parliament thought that they should interfere they can press them to do so; they can say, "You have got the powers. We have the right to press you to use them".
For that and other reasons I am in support of this amendment. The Minister took the case of Sealink. If I may say so, it was not a very good case because Sealink is dealt with as the Railways Board shall secure, so the Railways Board already have that duty. If the Minister meant that if they failed in that duty he could exercise the powers that would be understandable. But these powers are not confined to forcing the Railways Board to do something they are required to do. In fact, they go quite the opposite way; they can even insist on the Railways Board doing something which they are not empowered to do, which they are forbidden from doing. That does seem to me a very wide power to give. That is why I felt that we should try and find some means of resolving any honest differences of opinion between the Minister and his advisers on the one hand and the board and their advisers on the other. I imagine any sensible Minister will try to resolve these things, but giving him these powers without any provision for machinery to try to resolve differences seems to me to invite a conflict between the Minister and the board, which is something we would all wish to avoid, whoever the Minister was.
Is it really impossible at this stage to find some means of resolving these honest differences of opinion? I would start with the assumption that the board probably know more about it than the Minister. But even leaving that on one side, if they have honest differences of opinion as to whether this particular part of the undertaking should be privatised (to use this horrid word) why should not there be some means of resolving them other than by the Minister saying, "I say you must, and that is the end of it". I wonder whether even at this late stage there could be any means of trying to avoid what otherwise one feels are likely to be from time to time very unpleasant head-on collisions.
Lord Bellwin: My Lords, I do not see why we should be so pessimistic. The scenario which noble Lords opposite have painted is certainly not one which I envisage at all. The fact is that the Government's whole policy is founded on their agreement with the board that something must be done to improve the prospects of their subsidiaries. This agreement is the keystone of the policy and has shaped the provisions which are now included in the Bill. If that had not been the case it would have been quite feasible for us to take a different approach and introduce a Bill transferring certain businesses to the ownership of the Secretary of State and empowering him to dispose of them as he thought fit, the whole of the proceeds going straight to the Exchequer, with some reduction in the board's debt to take account of the loss of the assets concerned. These are publicly-owned assets and that would have been a justifiable way to treat them. It would have given the Government direct control over the exercise. I do not deny that such a course would have raised some difficult problems or

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that the legislation involved would have been much more complicated than that which we have before us. But it would certainly have been possible.
However, we have not chosen that course. Instead, we have looked for the common ground between the board and ourselves. We have tried to identify objectives and methods which are acceptable to both sides. We have agreed that the board should take the lead, consulting the Government as appropriate. It has been hinted in our early discussions of the Bill that it was a shot-gun marriage, that the board had no choice but to acquiesce. However, that is not so. Would anyone seriously believe that men of the experience and integrity of Sir Peter Parker and his fellow board members would have accepted such pressure without a fight?
When we say that we want to proceed in agreement with the board, we mean just that. The board understand and accept the Government's position. They know that we shall not fiddle the rules to allow the subsidiaries to escape public sector controls and yet to remain in board control. On the other hand, they also know that so long as they adhere to the agreed policy the Government will be perfectly happy to let them decide, consulting the Secretary of State as necessary, how to carry it out. So the board have the initiative and they have a large degree of discretion as to how they implement the policy. It seems to me that this was a big concession for the Government to make and it is not one that has been sufficiently recognised by those who oppose Part I of the Bill.
The noble Lords opposite have asked why, if the Government and the board are proceeding in agreement, we do not trust the board sufficiently to do without powers of direction. The answer is that the Government must take measures to protect their own position. The Government are promoting Part I of the Bill specifically to ensure that a particular set of events, a series of privatisations—and I agree with the noble Lord about that word, but there it is—will take place. Fortunately, there is joint agreement on that policy, but it is only right and sensible that both parties—the board and the Government—should have the ability to see it carried out. If Clause 3 were removed from the Bill, as this amendment proposes, the Government, having left matters in the hands of the board, would be without any remedy if the board went back on its agreement with the Government. I do not believe for one moment that the board, in fact, would do this, but the Government have obviously to take account of the possibility. That is why the powers of direction are in the Bill. I can say with absolute sincerity that we neither expect nor want to use these powers. But we insist that it is right that we should have them in reserve.
I have been asked to give examples of when these powers might be used. That is difficult because it is a hypothetical matter. But I suppose that the most obvious example of their potential use would be if the board decided not to proceed with the privatisation of a particular business, or part of a business, for reasons which did not seem to the Government to be valid. Another situation in which they might be used could be if the board had made little progress with implementing the policy and chose to reject opportunities to get in private capital for no good reason. As I have said,
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I do not think that that will, in fact, happen. Indeed, the board have already made an excellent start by disposing of a controlling interest in some of their Scottish hotels. But I say again that the Government have to protect their position.
It is true that the powers in this clause are wide-ranging; they have to be. It is self-evident that if the Government are to be able to carry through the policy in the face of the board's unwillingness to do so, they have to be able to direct the board to do the things that the board would themselves have done if they were acting of their own volition. It is important that the powers should be clear and unambiguous, and that they should be seen by all to be capable of effective use without inviting wrangles about the legal validity of any direction which might be given. The result is that the Secretary of State's powers in Clause 3 more or less mirror those of the board in Clause 1.
I do not think that I should go on at length. I shall sum up by saying yet again that these are reserve powers and we hope and fully expect that it will not be necessary to use them. But we do insist on the right to have them in order to protect the Government's position. If it does prove necessary to use them we shall certainly do so. But we have no intention of using these powers in an underhand or vindictive way or in a way which damages the interests of the board's main activity—the railway—or of the businesses themselves, or of their staff. We shall try to use them, if it becomes unavoidable to do so, in a way which will leave the board the maximum of discretion. This is a fundamental part of the whole Bill and I know that both the noble Lords opposite who have spoken on it realise that. Therefore, I hope that they will understand why we could not possibly accept the amendment that the clause be left out. I hope that they will not press the amendment.
Lord Underhill: My Lords, I make it absolutely clear that there is nothing in this amendment to challenge the main principle of this part of the Bill, otherwise I would have tabled quite a number of amendments to deal with the question of subsidiaries. Those issues were dealt with in Committee.
The board is given quite definite powers under Clause 1. Then, under Clause 3, the Government proceed to take away those powers. Despite their expertise in these matters and what is best for their undertaking, the Secretary of State can give them clear instructions to proceed in a certain way. What is more, he can proceed to give instructions to the board to act contrary to the duties and powers of the board under the 1962 Act.
The noble Lord has made a very reasonable speech, but we have to deal with what is actually contained in the Bill—in the clause. The clause deals with the power of directions: the power of directions, if the Secretary of State so desires. There are no criteria laid down. The noble Lord, Lord Bellwin, said that the board know only too well that the Government would not fiddle the rules. I am not suggesting that the present Secretary of State would do so, but there are powers in the clause for any Secretary of State to do that if he so desired. If the clause is deleted the board will still have the powers which the Government want to give them under Clause 1.

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I believe that this is such an important principle—and the noble Viscount, Lord Simon, agrees with me—that we ought to delete this clause and then, if the Government feel that they want to come in to lay down criteria for the reserve power, they themselves could introduce an amendment to lay down the criteria for using it at Third Reading. There is an absence of criteria for using the reserve power, and we cannot obviously pass a clause which relies upon good faith irrespective of the words which are contained in the clause. Therefore, I must insist on the House declaring its view on this matter.
6.38 p.m.
On Question, Whether the said amendment (No. 4) shall be agreed to?
Their Lordships divided: Contents, 53; Not-Contents, 88.

CONTENTS

Ardwick, L.

Loudoun, C.

Aylestone, L.

McGregor of Durris, L.

Barrington, V.

Masham of Ilton, B.

Bernstein, L.

Mishcon, L.

Beswick, L.

Noel-Baker, L.

Bishopston, L.

Peart, L.

Blease, L.

Phillips, B.

Boston of Faversham, L.

Pitt of Hampstead, L.

Collison, L.

Ponsonby of Shulbrede, L. [Teller.]

David, B.

Davies of Leek, L.

Rochester, L.

Diamond, L.

Ross of Marnock, L.

Elwyn-Jones, L.

Seear, B.

Ewart-Biggs, B.

Shinwell, L.

Garner, L.

Simon, V.

George-Brown, L.

Stedman, B.

Greenway, L.

Stone, L.

Houghton of Sowerby, L.

Taylor of Blackburn, L.

Jacques, L.

Taylor of Mansfield, L.

Jeger, B.

Tordoff, L.

Jenkins of Putney, L.

Underhill, L.

John-Mackie, L.

Wallace of Coslany, L.

Kilmarnock, L.

White, B.

Kinloss, Ly.

Wilson of Langside, L.

Kirkhill, L.

Wilson of Radcliffe, L.

Llewelyn-Davies of Hastoe, B. [Teller.]

Wootton of Abinger, B.

Young of Dartington, L.

Longford, E.

NOT-CONTENTS

Airey of Abingdon, B.

Eccles, V.

Allerton, L.

Elibank, L.

Auckland, L.

Elles, B.

Avon, E.

Elliot of Harwood, B.

Balfour of Inchrye, L.

Falkland, V.

Bellwin, L.

Ferrier, L,

Belstead, L.

Fortescue, E.

Bessborough, E.

Fraser of Kilmorack, L.

Boardman, L.

Gardner of Parkes, B.

Boyd-Carpenter, L.

Gridley, L.

Brougham and Vaux, L.

Hailsham of Saint Marylebone, L.

Caithness, E.

Campbell of Alloway, L.

Henley, L.

Cockfield, L.

Hornsby-Smith, B.

Colville of Culross, V.

Hylton-Foster, B.

Colwyn, L.

Kemsley, V.

Cork and Orrery, E.

Killearn, L.

Croft, L.

Kinnaird, L.

Cross, V.

Kintore, E.

Cullen of Ashbourne, L.

Lane-Fox, B.

Daventry, V.

Lauderdale, E.

Davidson, V.

Long, V.

de Clifford, L.

Lucas, B.

Denham, L. [Teller.]

Luke, L.

Drumalbyn, L.

Lyle, L.

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McFadzean, L.

Sandford, L.

Mackay of Clashfern, L.

Sandys, L. [Teller.]

Macleod of Borve, B.

Selkirk, E.

Marley, L.

Shannon, E.

Massereene and Ferrard, V.

Sharples, B.

Monk Bretton, L.

Shepherd, L.

Mottistone, L.

Skelmersdale, L.

Mountevans, L.

Stamp, L.

Mountgarret, V.

Stodart of Leaston, L.

Moyne, L.

Strathcarron, L.

Murton of Lindisfarne, L.

Strathclyde, L.

Northchurch, B.

Swinfen, L.

Nugent of Guildford, L.

Trenchard, V.

Onslow, E.

Vaizey, L.

Penrhyn, L.

Vivian, L.

Portland, D.

Wakefield of Kendal, L.

Rankeillour, L.

Waldegrave, E.

Rawlinson of Ewell, L.

Ward of Witley, V.

Reigate, L.

Westbury, L.

Rochdale, V.

Resolved in the negative, and amendment disagreed to accordingly.

Royal Assent
6.47 p.m.
The Lord Chancellor: My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Acts:

Matrimonial Homes and Property Act,

Industrial Diseases (Notification) Act,

Food and Drugs (Amendment) Act,

Criminal Justice (Amendment) Act,

Licensing (Alcohol Education and Research) Act, Fisheries Act,

Horserace Betting Levy Act,

Insurance Companies Act,

Transport Act 1962 (Amendment) Act,

Social Security Act,

Representation of the People Act,

British Railways (Pension Schemes) Act,

Whitehaven Harbour Act,

Greater London Council (General Powers) Act.

Transport Bill
6.48 p.m.
Report stage resumed.
Lord Mottistone Lord Mottistone moved Amendment No. 5:
After Clause 3, insert the following new clause:
("Maintenance of services to Islands
. If ever Sealink consider it commercially advisable to reduce the sea transport services which it provides to any island off the mainland of England, it shall consult with the Secretary of State before putting such a reduction of services into effect and the Secretary of State shall further consult with such public bodies or persons as he may deem to be concerned.").
The noble Lord said: My Lords, this amendment is designed to provide a long-term safeguard for islands which will be dependent upon Sealink. It in no way suggests that Sealink is not providing an excellent service at this moment in time, and it looks perhaps 10 or even 15 years ahead when circumstances may not be quite so good for Sealink.
I should perhaps remind your Lordships that most

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of Sealink's operations are well-buttressed with alternative means of sea transport; that is, the routes that it runs to Ireland and the routes that it runs to the Continent. As regards the routes that it runs to all the islands, in the case of the Channel Islands and the Isle of Man, they are supplemented by air routes, and in the case of the Isle of Wight, they are it is true supplemented by a measure of private enterprise. But in the case of the Isle of Wight—and your Lordships will be aware that that is where I live—we find that two-thirds of the routes providing transport for motor vehicles are owned by Sealink and three-quarters of those providing transport for passengers are owned by Sealink. Therefore, a large proportion of the amount of the sea transport is in the hands of Sealink. Whereas the routes across the Channel and to Ireland are not of themselves vital to the ordinary, orderly everyday life of the places that they go to, in regard to the islands to a large extent they are.
In the case of the Isle of Wight, where we have no supplementary transport in the way of the air and just a small amount of hydrofoil and hovercraft transport ability, the vast preponderance of the position occupied by Sealink is important. Sealink at the moment is providing an excellent service, and indeed it is prospering. It is planning all sorts of development, which is much to be encouraged and admired, but one cannot be sure that in the more distant future things will always go so well for this company. It might indeed have a setback in—shall we say—the early 1990s because some unwise person has driven a tunnel under the Channel. That would take away a lot of its routes in that direction and it might say that it had to pull its horns in. Then perhaps it would say, "We have to make economies in all places, and this w ill mean reducing the services to the Isle of Wight".
As I have endeavoured to show, the services to an island are much more vital to its everyday life than the services on the main routes which provide chiefly for tourists going back and forth. They are not vital for the everyday living as they are to an island. It would apply particularly to the Isle of Wight, but probably also to the Channel Islands, and I should like this to be thought of in that context as well. The regularity of service is important and has a bearing quite different from the other functions which Sealink performs. It is to safeguard that position in the future, and in circumstances that at present cannot be foreseen, that I propose this amendment.
My noble friend the Minister said in favour of Clause 3, which we have just debated, "These are really reserve powers which we would never use in an ordinary sort of circumstance, and we cannot foresee its happening in the immediate future". I am really saying the same sort of thing to him. What I seek by my amendment is reserve powers for at the moment an unforeseen situation which might arise 5, 10, 15 or even 20 years ahead. It would be a safeguard to have something of this sort in the Bill. I beg to move.
6.53 p.m.
Lord Bellwin: My Lords, I see that my noble friend, who is always so assiduous and ever watchful on all matters concerning the Isle of Wight—they are fortunate indeed to have someone who takes such a regular and
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on-going interest in their affairs—has tabled this further amendment because he is properly concerned regarding local interests. However, I wonder whether the scope of his present amendment may be wider than he thinks, since it may apply not only to the Isle of Wight and to the Channel Islands, but also perhaps to Ireland as well—since that might, I suppose, be called an island off the mainland of England! I am sure the inhabitants of these islands should be grateful to my noble friend Lord Mottistone for his attention to their interests.
My noble friend is evidently worried that when in the private sector, no longer bound by the present requirements for advance notification of closure of shipping services, Sealink might decide abruptly to end one of its three services to the Isle of Wight. I have to say—and I am sure he will not be surprised to hear—that I do not share his fears. Sealink are a responsible shipping company, well aware of the importance the inhabitants of the Isle of Wight attach to their services. They are not likely to take lightly any decision to change the present pattern of their services. I am confident that any proposals of the sort my noble friend has in mind would be heralded by reasonable consultation—in particular with the local transport authority, the county council, with whom Sealink hold regular meetings so that precisely issues of this sort can be aired.
But in fact Sealink's intentions for the Isle of Wight routes are more for expansion than for closure. The House has recently given its approval to a Sealink proposal to carry out works at Fishbourne, so that bigger ships can be used on the Portsmouth-Fishbourne route. As my noble friend knows, similar works are planned by the harbour authority, with Sealink's support, at Yarmouth. These proposals clearly show Sealink's confidence in the potential of their Isle of Wight services. I know of no proposal for the closure or severe curtailment of any of Sealink's services to the island.
It really is for this reason that I do not think that my noble friend's amendment is necessary. Moreover, it raises an issue of principle for the Government. It is our intention that when in the private section Sealink should be treated like any other private sector shipping and harbour operator. This is the main thrust of our policy, to give the board's subsidiaries a chance to compete on equal footing with other businesses. To single out Sealink and its services to offshore islands from among all the shipping services provided by other commercial operators for special restrictions would not be in keeping with this policy.
I take the last point that my noble friend made about reserve powers. I think he would agree with me—he will say if he does not; he usually says what he thinks—that when he speaks of having reserve powers in case the unforeseeable happens he does so in not quite the same way that I was making the point on the last matter. Of course, in the case of a trading company, which this is, one cannot foresee what in 15 years or so may be the position; but then I did say that anybody who was faced with a situation of that kind would have reasonable consultation. I am satisfied for myself—and I have thought carefully about this—that in fact there is no need for the concern which my noble friend expresses. I hope that he will feel able to withdraw his amendment.
Baroness Macleod of Borve: My Lords, may I briefly intervene with a warning. There is no reason why Sealink should not perhaps become a monopoly in the foreseeable future, and once there is a monopoly in transport then the people who run that monopoly business can withdraw their service, whether it be on the land or on the sea. As I know very well, in parts of Scotland a firm, having taken everything over, has withdrawn its bus monopoly, with consequent great deprivation to people living in that part of Scotland. This is only a warning. Agreeing entirely with my noble friend Lord Mottistone's reasons underlying this amendment, I should have thought it helpful if reserve powers even for an independent company were put into this Bill.
Lord Mottistone: My Lords, I thank the noble Baroness for her support, and I trust that my noble friend the Minister will take note of what can happen. We are talking over a period of 25 years or so, if not more. These things do happen. I fully accept the fact that my amendment is not perfectly drafted and that we might be doing more favour to Ireland than perhaps I was intending, but, with all that, there is an underlying problem here which perhaps in the event is going to be so far ahead that most of us in the Chamber at the moment will cease to have worried about it because we shall not want to travel any more. There is this problem—I know it has happened in parts of Canada, for example—and it is the sort of thing that must be watched. People can fall on hard times and withdraw what are thought to be essential services by those who are provided with them. Having aired the point fully, I shall read in Hansard carefully what my noble friend said and perhaps even make it all available to the people of the Isle of Wight, so that in due course, if this problem ever arises, they can throw it back at the Minister of the day and perhaps even at Sealink. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Sandys: My Lords, I think it would be for the convenience of the House if at this stage we adjourned the consideration of the Report stage until 7.45 and meanwhile took further business. I beg to move that further consideration on Report be now adjourned until 7.45.
Moved accordingly and, on Question, Motion agreed to.

Indecent Displays (Control) Bill
7.1 p.m.
Lord Nugent of Guildford: My Lords, I beg to move that this Bill be now read a third time.
At this stage of the Bill I wish briefly to thank your Lordships for the reception you have given to it. We have had some interesting debates, mainly promoted by the amendments of the noble Lord, Lord Houghton of Sowerby. The House has shown itself clearly in favour of the Bill, and for that I am very grateful.
This is a small Bill but it sets out to cure an obvious
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evil in the display of pornographic material which now appears in shop windows and bookstalls and undoubtedly disturbs the public, especially parents with young children whose minds are caught and disturbed by such pornographic displays. That is all the Bill does. It does not set out to cure the evil of the nature of the material; that is a much bigger and more difficult subject, and I believe that a good deal of the interesting comments of the noble Lord, Lord Houghton, particularly related to the Williams Report, were directed at the major problem of a satisfactory definition of "obscenity".
I am sure my noble friend Lord Belstead would be the first to agree that the law at present is unsatisfactory and almost unenforceable in that respect. But here we are not trying to cure that major problem, and clearly that is not an issue which a Private Member could take up in a Private Member's Bill. That is a very difficult issue for the Government and I still hope that somehow at some time the Home Secretary may be able to tackle it, but that is for another day.
This small measure has had a really astonishing degree of support in the other place. It will I believe be a really useful contribution in a narrow sphere and it is in that spirit that I say my valedictory words for it, again with grateful thanks to noble Lords on all sides for being so helpful in supporting it during its passage through the House. My Lords, I beg to move.
Moved, That the Bill be now read 3a.—(Lord Nugent of Guildford.)
Lord Houghton of Sowerby: My Lords, the Bill now comes to its inglorious conclusion. I say that with the fullest respect to the noble Lord, Lord Nugent, who has sponsored it with good nature, ability, skill and success. But nothing downgrades a Bill more in your Lordships' House than to put on its concluding stage during the supper break. The inference underlying the selection of this time to deal with the conclusion of the Bill is that we should not spend too much time on it, and only a few moments ago the normal supper interval of one hour was reduced to 45 minutes. I am not sure what happens if we exceed the time.
Lord Belstead: And this is only the first course, my Lords.
Lord Houghton of Sowerby: Nevertheless, I have a few remarks to make especially about the general atmosphere in which it has been necessary to consider the Bill. Putting it on at this moment puts an additional constraint on the time of the House to deal with it. After all, noble Lords have gone for their refreshment and they will come back at the appointed time impatiently waiting for the resumption of the main business of the evening, which promises to be rather long.
I had a good deal to say about the main issue of time on another Bill earlier this week. Indeed, there could be, or could have been, similar anxieties about this Bill that we have with the Zoo Licensing (No. 2) Bill which awaits its Committee stage tomorrow. This Bill and the one that is coming on tomorrow does raise in serious form the whole procedure of dealing with

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Private Members' Bills. This Bill, like the Zoo Bill, has to get back to another place by the end of next week if it is to become law because we have amended the Bill slightly and the formalities of approving the Lords' amendments have to be gone through in another place on the last day allotted to Private Members' Bills in the House of Commons for this Session.
I hope the noble Lord, Lord Nugent, will allow me to say that he has had in his mind, quite properly, the whole time the fact that if this Bill were substantially amended to raise fresh controversy about it in another place, it would be in dire peril in the latter stages of its progress through another place. Indeed, if the amendments were substantial—and the two we have made are not substantial—determined obstruction in another place might easily wreck it. I hope something can be done to remedy situations which in this House amount to undue pressure on the House of Lords in our parliamentary procedure. That is to be deplored and resented and it should be remedied, and I hope consideration will be given to it.
Lord Harmar-Nicholls: It is all so pitiful, my Lords.
Lord Houghton of Sowerby: My Lords, the amendments which the noble Lord, Lord Nugent, accepted were not substantial, though both of them were important, and I do not think they will cause any serious difficulty next week. I hope not. Nevertheless, it would not be unfair to say that in considering the Bill and the amendments I moved to it, considerations of time have been present in the minds of noble Lords who have wanted to see the measure through.
I am not suggesting that the amendments were not adequately considered on their merits, but when considering the merits of a matter and one is being pressurised on time, that is not the most congenial atmosphere in which to carry out our debates. I have no complaints. I am just uttering a caution about the way in which things can go in your Lordships' House.
I wish to refer to another hazard which the noble Lord has overcome. There was an occasion during the Committee stage when there were not enough noble Lords in the Chamber for a Division to be effective. Had I known that at the time, and had I pressed for a Division, the Committee stage would have come abruptly to an end. Happily, I did not know. I am glad to have been spared the temptation of employing obstruction as an obstacle to the Bill. I do not like legislation by lottery, which this is, but I do not like defeating legislation by obstruction.
In relation to some of the amendments that I moved some noble Lords—not the noble Lord, Lord Nugent—suggested that all the ground had been covered in another place and that there was no need to spend a lot of time in your Lordships' House going over it all again; the matter had been fully debated in another place. That is no reason for cutting short our consideration of a Bill that comes from another place. After all, the Transport Bill, which is the main business to be resumed in the House this evening after the supper break, has already been gone over in another place. Indeed, the noble Lord, Lord Nugent, is the last person to complain that what has been gone over in another place should not be gone over again, because he has defied another place on seat belts and he has
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triumphed over the opinion of another place which had considered the matter over and over again. So I think that—
Lord Nugent of Guildford: My Lords, I thank the noble Lord for giving way. I should like to remind him that he has just acquitted me of charging him in regard to repeating debates that have been gone over in another place. I have made no such charge against him; others may have done.
Lord Houghton of Sowerby: My Lords, I am merely making the point that none of us should refrain from going over a Bill that comes from another place simply because it has already been gone over.
I turn to another relevant matter. When we were considering the Bill on Report another place was for the first time debating the Williams Report and its recommendations, which came out in 1979. It was quite interesting that that debate coincided with our own. I do not know whether members of the Williams Committee will feel very comforted by what was said in that debate. I believe that all chairmen of committees who undertake valuable public service must derive their satisfaction from the work that they do and not from what is done with what they say. I speak from experience. The only committee of which I was chairman and about which I could feel any real satisfaction was that on teachers' pay in 1974. Then I realised that if it is morals, you get nowhere, but if it is money, there is somebody waiting for it—and indeed they waited and got quite a lot. So I think that we should on our own account add thanks to the Williams Committee for what it did.
I turn to another interesting occurrence which I think is relevant to the Third Reading of the Bill; namely the demonstration that I happened to see outside the magistrates' court in Horseferry Road. I thought, "Ah! here we are, a private prosecution. Now let's see what we make of it". The police were on duty. There were cameras there, the media men were clustering around, with the police telling them to go away or stand further back. I do not know for whom they were waiting. I do not know whether they were waiting for the absentee prosecutor, or whether they were hoping to see the defendant. I do not know for whom they were waiting, but it was quite an occasion. When I see a case such as that—with an absentee prosecutor who has not even seen what is alleged, but who got a solicitor to go to the show as the principal prosecution witness, and with the committal proceedings becoming embroiled in the obscurities and the tangle of the law—I have very little confidence in the sacred principle of private prosecutions. Incidentally, I have noticed how some noble Lords and some Members of another place have stuck firmly to the right of the citizen to maintain his right to go to the courts on his own if those who should enforce the law neglect or refuse to do so.
I now turn to another subject about which I feel deep concern. I recall that under the Cruelty to Animals Act 1876 no right is given to the citizen to undertake a private prosecution. Who can prosecute under the Cruelty to Animals Act 1876? The police?—No. The Attorney-General?—No. The Director of Public Prosecutions?—No. A prosecution may not be taken

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under that Act except with the consent of the Home Secretary, and so the sovereign state of science has a law unto itself. The citizen may not enter, he may not prosecute; it is a closed shop. I believe that we should bear in mind these little inconsistencies, if they are not little hypocrises, when we look at the rights of the citizen in different contexts.
I shall conclude my speech with a few reflections upon the main substance of the Bill. So many people are concerned with sex more than with any other part of human nature. Sex and sexual equipment is the sum and substance of indecency and obscenity in the minds of many. The older people grow, the more they appear to disapprove of what they see, hear and read about sex. They appear to think a great deal more about sexual offences than about sex, which probably is understandable. Celibate priests are preoccupied with the subject. While the Victorian hypocrises still linger, the battle between crabbed age and youth becomes more fierce. Well, the young will soon be older, and it will be interesting to see—if we do—whether they can get these primitive problems of their own human nature into better balance than our own generation appears to have done.
Meanwhile, I congratulate the sponsor of the Bill in your Lordships' House, and indeed the sponsor in another place, on the most agreeable way in which they have steered it into port in both Houses. I pay tribute to the noble Lord, Lord Nugent. I hope that the Bill will relieve people of normal sensibilities of embarrassing experiences without setting in motion the harassing tactics of professional moralists.
7.18 p.m.
Lord Mishcon: My Lords, my noble friend Lord Houghton of Sowerby will go down in history as a person who protected animals from cruelty. I do not understand why a man of such gentle nature should impose such cruelty upon his fellow Peers when he speaks. The sole purpose of my rising is to contratulate the noble Lord, Lord Nugent of Guildford, on the manner in which he has dealt with this important little measure in this House. He has done this in a way which those of us who know him would expect of him. It has been done with that cool, calm courtesy which is part and parcel of the noble Lord. I think this is an important little measure. I am expressing a personal view from the Opposition Front Bench. I consider it is a very desirable measure, and the sooner it goes on to the statute book, the better.
Lord Swinfen: My Lords, I should like to congratulate my noble friend Lord Nugent of Guildford on the way in which he has brought the Bill through your Lordships' House. At the same time I should like to say to the noble Lord, Lord Houghton of Sowerby, that it is not only Members of this House of his generation who have taken offence at some of the displays that we see in shops, not only in Soho, but in other parts of London and in other parts of this country. As I said at Second Reading, not only my generation but people younger than I am have taken offence.
I have a strong objection to people making a lot of money through voyeurism, and as far as I have seen the noble Lord has attempted throughout this Bill to
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protect voyeurs and make it more difficult for people with young families to take their children throughout our towns and villages without suffering a considerable amount of offence in some instances. I have no intention to be offensive to him, but just to point out what I have gathered from what he has said during this Bill.
Viscount Barrington: My Lords, as there is nobody else present on the Liberal Benches and this is not a party issue, I should like to take the opportunity to say two things. One is to congratulate the noble Lord, Lord Nugent, on a Bill in respect of which, as I think he knows, I approve of everything except that in my opinion, which is not a Liberal opinion, it touches only what I may call the tip of the "viceberg". The only time I intervened in the debates on this Bill was to try to stress the fact that this is a Bill about indecency and not obscenity; and I entirely agree that that is a much more difficult matter which, as has been agreed all round the House, should be taken up by the Government.
The second thing is, if I may, to congratulate the noble Lord, Lord Houghton, on what I thought was a heroic and titanic effort to get people to consider this Bill seriously, which he did against great odds and which I thought he did admirably and with great good humour at the end. The fact that I disagreed with everything he said is balanced by the fact that I agreed with everything he said in his speech on animals the next day; and I think that if anybody apart from the noble Lord, Lord Nugent, and those who introduced the Bill deserves, congratulations, it is the noble Lord, Lord Houghton. Having said that, I will sit down.
Lord Monson: My Lords, on this Bill I do not stand in total opposition to the noble Lord, Lord Nugent, as I do on another matter which we shall be debating shortly. Rather I stand, one might say, at right-angles to him; that is, I sympathise with the Bill, but I also have strong reservations. In the case of both measures my opposition has, of course, absolutely nothing to do with the noble Lord, Lord Nugent, himself, but stems from my concern about any further erosion of our liberties in this country.
Although I acknowledge that this Bill is well-founded, I believe it is taking a sledgehammer to crack a nut. Two or three years ago I would not have said that; I would have entirely agreed with the noble Lord who spoke from the Government Back-Benches. Two or three years ago, in the case of almost every newsagent's you walked into you were confronted with endless vistas of bare flesh, not only at one's own eye level, which was bad enough, but at children's eye level, which was worse still. But since then there has been an entirely voluntary self-censorship, for the most part. Newsagents have, of their own free will, put these magazines up on the top shelf, where one does not see them unless one looks for them, and most of us do not look for them.
I may add that in this respect we are far better off than in most of the traditionally strait-laced Mediterranean countries—in Catholic countries, such as Spain and Portugal, since the death and overthrow of Franco and Caetano, respectively; Italy and Malta; Orthodox countries like Greece and the southern part

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of Cyprus, and even Islamic Turkey. Everywhere you go in these countries you see bookstalls featuring these "girlie" magazines. It is not very agreeable, certainly, but I think people there believe that it is part of the price one has to pay for a free society.
I think it all depends entirely on exactly where one draws the line. As I said at an earlier stage, the word "indecent" means a thousand different things to a thousand different people, and I was not challenged on that. However, I can only conclude by saying that I hope that the side-effects of the Bill will not be as bad as are feared, and I wish the Bill well.
Lord Jenkins of Putney: My Lords, all of us, I think, or at least most of us, are in favour of the basic objective of this Bill, though some of us have some worries about it in detail. My main concern about it—almost my only concern, I think—is the freedom it gives to the introduction of private prosecution. I was a little worried that the noble Lord, Lord Nugent—and I think the Government take the same view—felt unable to accept an amendment put down for the purpose of trying to limit the amount of private prosecution which was possible under the Bill. I myself intended to put down an amendment to that effect at Report stage. In fact, I did put it down; unfortunately, I had to leave the House at 12 o'clock. I had hoped that it would come on before that time, but unfortunately it came on at 10 past 12.
My noble friend Lord Houghton was kind enough to refer to the amendment, but naturally enough he preferred one in his own name which had a similar purpose; and I have no reason to suppose that as his eloquence could not carry the day, my own amendment could have fared any better. I do not think it would. I think the limitation of private prosecution which both my noble friend and I sought has been resisted. I am sorry it has been resisted, because it seems to me to be the main imperfection, or perhaps even the only imperfection, in a Bill the purposes of which otherwise seem to me to be admirable.
We have seen recently what can happen in the case of unlimited private prosecution—not unlimited, but in the case of private prosecution in this very difficult area. The ingenuity of private prosecutors is considerable indeed, as we have seen. Even when we carried through both Houses of Parliament, under the Theatres Act, an intention that prosecutions should be disallowed in the case of so-called indecent displays in the theatre, and that they should be allowed only with the fiat of the Attorney-General, apparently a way round that has recently been discovered, and I think that that is what my noble friend Lord Houghton was referring to just now.
So I think there is here opening up the possibility of private prosecution. I hope it will not be unreasonably and unfortunately exploited; and it is with that hope that I conclude what I have to say, adding my own small tribute to the manner in which the Bill has been carried through the House by the noble Lord, Lord Nugent. I repeat again that its general purposes are, I think, wise and proper, and are generally supported, and I hope that the fear I have about the possible exploitation of the Bill will not in fact be proved justified when it becomes an Act.
Lord Belstead: My Lords, may I just add my voice to those of your Lordships who have taken part in the other stages of this Bill, to say that the Government believe this to be a thoroughly worthwhile measure. The discussions we have had in your Lordships' House, and the welcome it has received from your Lordships, have served to confirm and strengthen the Government in that opinion. I should also like to express my appreciation for the skilful manner in which my noble friend Lord Nugent has piloted the Bill through the House. I am sure that not only the sponsor of the Bill, Mr. Sainsbury, in another place, but the House as a whole is greatly indebted to my noble friend.
On Question, Bill read 3a, with the amendments, and passed, and returned to the Commons.

Countryside (Scotland) Bill
7.30 p.m.
The Earl of Selkirk: My Lords, I beg to move that this Bill be now read a third time.
Moved, That the Bill be now read 33. (The Earl of Selkirk.)
Lord Ross of Marnock: My Lords, we have not long and I will not be long. I want to express my appreciation of the way in which the noble Earl has conducted the proceedings of this Bill. There is a representative of the Government here. I am sorry not to see the noble Earl, Lord Mansfield. This is not really a Private Member's Bill; it is a Government Bill. I am sorry that my noble friend Lord Houghton of Sowerby is no longer in the House because he might have been interested in what I have to say about Private Member's Bills. If you want a Private Member's Bill through late, make it a Scottish one! If you can get the Whips and every unruly Back-Bencher to keep their voices down and no one shouts, "Object!" on a Friday, then it gets through without a Second Reading. It then goes to a specially set-up Scottish Committee. That happened to this Bill. It does not go to the bottom of the list in another place. It goes straight to the Scottish Committee, and within one week this Bill was back for Report. That is why we have got it here.
The noble Earl was worried about getting it by the 4th July. Well, he has it. I will not oppose it. But I want to say that when you get a Private Member's Bill of 17 clauses and two schedules, it ceases to be a Private Member's Bill. When it takes power from the Government and gives it to a Quango, it is not a Private Member's Bill; it is a Government Bill. And when we have a particular clause which gives another power to a regional authority at a time when the Government want regional councils and district councils not to spend money, it does not seem like a Private Member's Bill that has in it any consistency with Government policy. I want to say only this.
There are some things in the Bill which are good but the main thing in the Bill to which I object is the new conception of what are called regional parks. I think it is a misnomer. The idea goes wider than the region and we have not discussed properly the whole policy of parks in Scotland. We have public parks,

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district parks, countryside parks, forestry parks and, now, we are to have regional parks. Yet, we have just had a report from the noble Lord, Lord Stodart—it was published in January—saying that all parks should be transferred to districts in Scotland. And, indeed, this started on its way. In the middle of this Bill, the Government came out with an interim finding in respect of regional parks saying that the districts should have all the parks but regions should have some place; and they are consulting about it.
It is mistimed. We should have waited. It is too important, I think, in respect of Scotland, where we have not got national parks, that we should have this interim, half-way measure of regional parks which conflicts with some of the countryside parks which are already established. The responsibility for that is not the noble Earl's. Probably more information was received in this House than in another place. I have no desire to stand in the way of the Bill.
The other silly thing, I think, was the conception of quiet areas in the countryside, trying to prevent noise; but only if it is a certain kind of noise, that is, the noise of vehicles or aeroplanes, and that is subject to certain exceptions. It would have been better to have forgotten that and thought it all out. That must be one of the Private Member's ideas rather than a Government idea. Again, I congratulate the noble Earl for his working on the Bill. He did not lose his temper when we were short of time; he got rather despondent when he felt that there were another 26 amendments to come from one, Lord Ross of Marnock. He need not have worried. I think too much of him to be obstructive in that way. The Government is a different matter. I try to persuade them that some of the things I put down are right.
I am sorry for my noble friend Lord Houghton of Sowerby for the "stick" he took and being remembered for his efforts on that. He will be remembered in Scotland for the Houghton Committee report on teachers. If he likes to come in during our prolonged consideration of the Education (Scotland) Bill he will find that in the reorganisation and negotiations for teachers' salaries the name "Houghton" will come up. It has already done so on Second Reading and it will do so again. That is one of the things for which we remember him. if he is interested in Scottish Bills then let him introduce one and he will get more satisfaction than with some of the other efforts that he has made. I support the Third Reading of this Bill.
The Earl of Selkirk: My Lords, I should like to thank the noble Lord for what he has said. I am grateful to the House for supporting this Bill. I cordially disagree with the noble Lord, Lord Houghton, in saying that there is anything degrading about taking Bills in the dinner interval. I think there are advantages. You know when they are going to happen, you know within a reasonable time when the Bill is likely to come on. I am grateful to the noble Lord, Lord Ross, for his examination of this Bill. I agree that it is a new concept and it is proper that it should be examined. I do not think that it makes all that difference whether it is a Private Member's Bill or a Government Bill. They all look the same when you have finished with them. There is no difference on the statute book.
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I do not want to go again into the argument about regional parks but I do not think there is conflict. I think in the event there will be no conflict. I am sorry that the noble Lord is still worried about that noble object of creating quiet. That is something we all long for. It may not succeed but the object of creating quiet is something which everyone would commend. This is a small Bill. It treads new ground. It will extend the preservation and enhancement of the natural beauty of the countryside and increase the ability to have access to it; and, importantly, it will provide some protection against vandals. This is very useful. We hope it will be operated sensibly and I think that if it is, it will be of considerable value in the future. I thank the noble Lord for his assistance in this, and I hope, as I am sure he hopes, that this will be a valuable step forward.
On Question, Bill read 3a, with the amendments, and passed, and returned to the Commons.
Lord Denham: My Lords, I beg to move that the House do adjourn until 7.45 p.m.
Moved accordingly and, on Question, Motion agreed to.
[The Sitting was suspended from 7.37 until 7.45 p.m.]

Transport Bill
Further considered on Report.
Schedule 3 [Powers of Associated British Ports]:
Viscount Simon Viscount Simon moved Amendment No. 6:
Page 34, leave out lines 16 to 18.
The noble Viscount said: My Lords, Schedule 3, to which this is an amendment, deals with the powers of Associated British Ports, which is to be the successor to the British Transport Docks Board. The lines that I am proposing should be deleted read:
"Associated British Ports may carry on at its harbours the activities of a ship's agent".
At Committee stage the noble Lord, Lord Mottistone, moved an identical amendment. Noble Lords who were present at the time may remember that there was a rather diffuse discussion. It became involved and the noble Lord eventually withdrew the amendment, saying that he would seek to raise the matter later. He has evidently had slightly different thoughts because he has now put down Amendment No. 7 which is a modification of his original amendment. I think that his original amendment was the right one. I hope that I can persuade the House that this is so.
We have to consider what are the activities of a ship's agent. I suggest that a port authority is inappropriate to act in this capacity. The ship's agent has a great many duties to perform. I have been a ship's agent so I know something about it. For instance, they have to be able to arrange for the provision of stores for the ship; they have to arrange for repairs to be undertaken. There may be a sick seaman who has to be landed into hospital. There may even be trouble on board and the police or others concerned have to have access. Of course, a port authority could set up a department which could deal

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with these matters, but I should have thought it was quite inappropriate for them to do so.
There is the still more important issue, which is looking after the ship in port. In this respect, the ship's agent may well be in discussion and occasionally perhaps in argument with the port authority. The master may not think that the berth is safe; or the cargo requires to have three cranes to discharge it and the port have provided only two. If the port authority, as in some cases, is also the supplier of labour for handling the cargo, then the agent has to arrange with the supplier of that labour for the right number of gangs, at the right time, and so on.
I do not think it is at all reasonable for the port authority to act as agent and have to deal with itself. It could lead to considerable difficulties. I was hoping that some of our noble colleagues learned in the law might be present; but, as a layman, I suggest that there is a real difficulty about an agent who is also the person who is dealing with himself, so to speak. One can imagine circumstances where some difficulty has arisen. I would remind your Lordships that business of this kind is carried out on the telephone; it is not something about which people write long documents. Let us suppose that a difficulty arises and afterwards there is a mishap of some kind and quite a serious claim arises. We shall find that there is some uncertainty whether the action taken or not taken by the port authority was taken or not taken by the port authority in its capacity as a port authority or in its capacity as agent for the ship.
I can imagine tremendous legal difficulties arising from this confusion. This seems to me a positive objection to what these lines provide. I began by saying that I thought the duty of a ship's agent was inappropriate; but when we come to the point that I have just raised I think that it is undesirable. There is no real difficulty—I do not know what the noble Lord, Lord Mottistone, is going to say—in finding a ship's agent. They do not have to be established at the port. This country is a fairly small country. The foreign owner, for example, probably has one principal agent that he knows, perhaps in London or in Liverpool. If the ship turns up at King's Lynn he can perfectly well arrange to send a person off to deal with it at King's Lynn. He does not have to be established there in order to do that.
The General Council of British Shipping have told me that they informed the Minister that they are quite happy about an assurance they have had as to the way the powers are to be used and no doubt the Minister will be telling us of that assurance. But, with great respect to the General Council, who are very old friends of mine, the foreign ship-owner is not represented there, and he perhaps has more interest in this matter than the British shipowner. There are also the interests of the chartered shipbrokers who are mentioned in the amendment of the noble Lord, Lord Mottistone. I suggest to the Government that they should look at this subject very seriously again between now and Third Reading. I do not think there is any real advantage to the Associated British Ports to have this power, and I cannot quite understand why they have asked for it. So far as I know, it is not a power that is exercised by any port authority, though there may be some case
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that could be quoted which I do not know about. Certainly it is not a normal business.
During the Committee stage the noble Lord, Lord Bellwin, in replying to an amendment by the noble Lord, Lord Lucas, and also one by the noble Lord, Lord Mottistone, spoke in the same breath about running road transport and acting as a ship's agent; but the two cases are completely different. If the port is running road transport, it is running it on behalf of the owners of the cargo and not on behalf of the ship, and it is the ship which has the contractual relationship with the port authority, not the owners of the cargo. So I think this provision is not only inappropriate but, for the reasons I have outlined, rather undesirable, and I hope that the noble Lord will agree to look at it again very seriously.
7.52 p.m.
Lord Mottistone: My Lords, as the noble Viscount has pointed out, this is a similar amendment to the one that I put forward in Committee, and slightly different from the one I have now put down. I propose, if the Minister agrees, to speak in general terms to this amendment and to reserve the right to move my amendment if I am not happy about the outcome of this one.
The noble Viscount has given us a very graphic description of how a ship's agent operates. That in itself should give my noble friend cause to pause, because we did not previously have the benefit of the noble Viscount's contribution, and furthermore there was the confusion that existed over taking my amendment with another one. We did not have the benefit of his expert knowledge last time, and this might cause my noble friend to think that perhaps there is more to this matter than has appeared in the meantime. As the noble Viscount said, my concern is more for the chartered shipbroker. A ship's agent is a person distinct from a chartering agent. The latter is a professional person who requires skill, knowedge, training and practice; and the Institute of Chartered Shipbrokers arranges training, examinations and qualifications. So they are different persons. As the noble Viscount said, a ship's agent is not in that sense a professional person.
I make this distinction because in the Journal of Commerce International, in its issue of 20th May 1981, the correspondent of that paper discussed the matter with a spokesman for the British Transport Docks Board. In questioning why this paragraph is in the Bill at all, and without my wishing to expand too greatly on this—the print is very small—the report says:
"Citing what he called a typical example"—
that is, why the paragraph is necessary—
"the spokesman said: `In Ayr a customer exporting a special type of stone to South Wales wanted us to quote for a complete service, including the ship chartering. Because of the way the law stands at the moment we were unable to do this. Other ship agents in the port weren't able to help this customer either '.".
To me that is very significant, because of course the other ship's agents in the port were not able to help because they were not qualified chartering agents. The passing of this particular paragraph within the Bill will not solve that problem. So, to start with, I would suggest to your Lordships that we have to get quite clear what we are talking about.

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change. We spoke earlier about good intentions but about people and situations changing. I acknowledge that to be so. However, this is a categorical statement. I hope your Lordships will share my confidence that ABP, controlled as it will be by private investors, will exercise its ship's agency power in a sensible and commercially effective manner and in the best interests of its customers. To delete the ship's agency power, as we are being asked to do, would restrict unnecessarily the freedom of manoeuvre of a private sector business. This is the cause for concern.
I was impressed, however, by some of the points which were made by the noble Viscount. I cannot accept his amendment nor, indeed, that of my noble friend Lord Mottistone. I listened very carefully to what my noble friend Lord Lucas of Chilworth had to say. He, too, has much knowledge in this area, so one has to listen carefully. Nevertheless, I cannot accept the amendments. The most I can do—I think noble Lords know from the not inconsiderable number of occasions when I have said this in the past that if I say it I will do it—is to talk to my colleagues about the subject, bring to their notice the points which all three speakers have made and find out whether they feel that in those circumstances we ought to do something different. If we so decide, there will be an opportunity to do something different. However, I cannot make any promise that we shall. It may well be that I shall have to disappoint the noble Viscount, Lord Simon, and both of my noble friends, in which case they must make up their own minds as to what they want to do. While, therefore, I cannot accept the amendments, I undertake, with that caveat, to look carefully at what has been said.
Lord Lucas of Chilworth: My Lords, before my noble friend sits down, I would point out that when he spoke about the categorical assurances which had been given he was speaking about the assurances which had been given by the employers, the British Transport Docks Board, as presently constituted. Would not my noble friend agree that were he able to bring before your Lordships an assurance couched in similar terms from the employees' side of the dock industry, a number of us might possibly be better satisfied? Is he able to say what kind of response the employees' side of the industry has made to these provisions?
Lord Bellwin: My Lords, by leave of the House, for which I think I must ask at this stage, I cannot answer my noble friend on that point. However, I undertake to include consideration of it in the review to which I referred a few moments ago.
Lord Mottistone: My Lords, again before my noble friend sits down, may I ask whether he is aware that his reply to the debate was most uncharacteristic of him and most inadequate? And is the noble Viscount aware that if he cares to test the feeling of the House I shall be delighted to support him?
Viscount Simon: My Lords, because of what the noble Lord the Minister has said I do not think that I want to make strictures of that sort. The Minister made a very sensible speech from his own point of
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view. He left the door open—"agar"my noble friend says—which is where I would propose to leave it. I do not think, however, that his answer was complete. He did not deal at all with what I regard as a very important point: the conflict between the agent and the port authority where they are the same people. I do not understand how that is going to work. The agent will try to do the best for the ship and the port authority, quite rightly, will try to do the best thing for the port authority. In business one gets conflicts of interests and I do not believe that they can be satisfactorily settled by having the same person, as it were, representing both parties.
Apart from that, when I stood up to speak originally my intention was not to press the amendment at this stage—and I am sorry to disappoint the noble Lord, Lord Mottistone. This is a very important point and, with great respect, I do not believe that it is one that the Government understood—largely because discussion in Committee was curtailed in the way it was, for reasons which I understand. With your Lordships' permission, I would much rather withdraw this amendment in the hope that the Minister will take it back and consider it with the British Transport Docks Board and discuss whether it is worth inserting. I cannot believe that it is of any real value and it could give rise to difficulties.
As regards the memorandum and articles of association, I take the point that has been made. I fully understand that a statutory body must have specific powers. I was not arguing against that but against powers which I do not think the board should have—not the way in which the powers were expressed.
May I take this opportunity to apologise to the noble Lord the Minister. He wrote two very helpful letters to me on other matters, and I did not acknowledge them, but they did help me and in fact they helped the noble Lord the Minister because I dropped two points which otherwise I would have pursued.
Amendment, by leave, withdrawn.
Lord Mottistone Lord Mottistone moved Amendment No. 7:
Page 34, line 18, at end insert—
("Provided that the services of a chartered shipbroker are not available in that harbour.").
The noble Lord said: My Lords, I do not have to repeat my speech, but I do have to repeat my dissatisfaction with my noble friend's reply to the remarks which have been made. I do not agree a bit with the noble Viscount, and therefore I should like to press my amendment.
8.24 p.m.
On Question, Whether the said amendment (No. 7) shall be agreed to?
Their Lordships divided: Contents, 11, Not-Contents, 62.

CONTENTS

Brougham and Vaux, L.

Monson, L.

Cross, V.

Mottistone, L. [Teller.]

Hatch of Lusby, L.

Stamp, L.

Kinloss, Ly.

Taylor of Mansfield, L.

Loudoun, C.

Wilson of Radcliffe, L.

Lucas of Chilworth, L. [Teller.]

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NOT-CONTENTS

Auckland, L.

Kemsley, V.

Avon, E.

Killearn, L.

Aylestone, L.

Kinnaird, L.

Balfour of Inchrye, L.

Lane-Fox, B.

Bellwin, L.

Long, V.

Belstead, L.

Lyell, L.

Bessborough, E.

McFadzean, L.

Boardman, L.

Mackay of Clashfern, L.

Campbell of Alloway, L.

Marley, L.

Cathcart, E.

Massereene and Ferrard, V.

Cockfield, L.

Monk Bretton, L.

Colwyn, L.

Murton of Lindisfarne, L.

Craigavon, V.

Noel-Buxton, L.

Croft, L.

Portland, D.

Cullen of Ashbourne, L.

Rankeillour, L.

de Clifford, L.

Reigate, L.

Denham, L. [Teller.]

Rochdale, V.

Drumalbyn, L.

Sandys, L. [Teller.]

Dundee, E.

Selkirk, E.

Elibank, L.

Sharples, B.

Ellenborough, L.

Skelmersdale, L.

Elles, B.

Stradbroke, E.

Elliot of Harwood, B.

Strathcarron, L.

Ferrers, E.

Strathclyde, L.

Fortescue, E.

Swinfen, L.

Gardner of Parkes, B.

Trenchard, V.

Greenway, L.

Vaizey, L.

Gridley, L.

Vivian, L.

Hornsby-Smith, B.

Waldegrave, E.

Hylton-Foster, B.

Ward of Witley, V.

Inglewood, L.

Westbury, L.

Resolved in the negative, and amendment disagreed to accordingly.
Clause 15 [Dissolution of National Ports Council]:
8.30 p.m.
Lord Underhill Lord Underhill moved Amendment No. 8:
Page 12, line 18, leave out ("and") and insert—
("( ) The powers and duties of the Council as defined in the Harbours Act 1964 shall pass to a National Ports Authority which shall be established and shall also keep under review the suitability and adequacy in relation to the trade of Great Britain, of the ports of Great Britain; review the discharge of their functions by the various ports authorities; consider how any port should be improved and what services and facilities should be provided at any port, and, as requested by the Secretary of State advise him, and at any time make recommendations to him, on any matter affecting the suitability, adequacy and efficiency of the ports.
( ) In accordance with the provisions of subsection (1) above ").
The noble Lord said: My Lords, this amendment is similar to the one which we considered at the Committee stage, but on that occasion noble Lords will recall that we were debating it somewhere round about half past ten at night, so I hope your Lordships will pardon me if I deal with it at rather greater length than I had originally intended. Clause 15 abolishes the National Ports Council and I think everybody generally agrees that the council has been of great benefit to the industry and has been very helpful to successive governments. The 1980 Report of the council set out all its duties and functions. I will not go through them but noble Lords can take it from me—and I think the Minister will agree—that the National Ports Council had very extensive powers.
At the Committee stage the noble Lord, Lord Bellwin, agreed that since its inception the National Ports Council had brought a major improvement in the organisation and efficiency of the ports industry.
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I then reminded noble Lords that only a few days earlier we had had the Ports (Financial Assistance) Bill whereby we all learned of the dire financial problems of the PLA and of Merseyside and we all know that there are severe financial problems in the Bristol docks.
In Committee I referred to what is known as the Rochdale Committee on the docks industry, which published its report in 1962, one complete chapter of which was devoted to the case for a National Ports Authority, and that is what this amendment proposes. Paragraph 52 of the Report recommended that a National Ports Authority should be established, with well-defined non-operational responsibilities. I will not weary the House by going through the whole of the 12 powers which the Rochdale Report suggested should be given to the National Ports Authority, although I have them listed if anyone should wish to have them. A number of these powers were given to the National Ports Council but that body is to be wound up under this Bill.
The points made in the amendment now before your Lordships are very much in line with the recommendation in the Rochdale Report for the powers of a National Ports Authority. The chairman of that committee was the noble Viscount, Lord Rochdale, from whom we heard in the Committee stage and in our debate today. The noble Viscount said that if I had moved this amendment 16 or 17 years ago he would readily have supported it, but he considered that there was no need for such an authority today. I respect very much what the noble Viscount, with his experience, has said, but since the Committee stage I have had the opportunity of re-reading the report to the Secretary of State for Transport on the ports industry, published in 1978.
It is a very interesting report. The Ports Council was asked to make a fundamental analysis of the state of the ports industry and to consider how plans for its strategic future should be developed. That was in 1978 and was many years after the Rochdale Committee had made its report. An introduction to the report states that the national objectives of the ports policy are to ensure that the ports are, and will be, adequate to handle the country's trade, that the ports make the best use of economic resources and that port undertakings individually are well organised and well managed. I suggest that those objectives require a body to carry out a continuing review of the industry.
Paragraph 32 of that report said that the local port organisations should be kept under review and there should be further measures of port grouping or port reconstitution where and when appropriate. If that view is held, it hardly fits in with the suggestion of the noble Lord, Lord Bellwin, that the industry should take as much responsibility as possible for its own affairs. Can one imagine that the industry itself would be liable to deal with port groupings or port reconstitution? It has always required an independent body to make such proposals. Paragraph 49 of the report says—and I must read this in full:
"Competition is a spur to efficiency but the extreme position of complete and absolute independence for all ports is wrong for a vital national service industry. Because of the special position of the ports there should generally be more co-operation and collaboration between them than there is today".

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That is a report of 1978. I continue to quote:
"The council have been attempting to achieve this but, particularly in recent years, they have been thwarted to some extent in doing things they believe to be necessary to help the efficiency of the industry because of the influential opposition from within the industry, even though the council work in great amity and in many areas and with very many ports."
In the light of that criticism, made only in 1978, how can all this work be left to the industry itself to deal with? Paragraph 52 of the report refers to the need for action to be taken.
Then may I mention one final paragraph which dealt with the role of a central body. In paragraph 61 the report said—and I quote—
"The special nature of the industry and its responsibility to the nation makes it necessary to have a central and independent body such as the National Ports Council, with which it has been suggested the ports should be closely associated".
It went on to list eight main functions, some of which are included in the amendment which I am moving.
I will not go over what I said at Committee stage, except to say that the managing director of the British Transport Docks Board, the board which is now to manage Associated British Ports, has expressed concern at the state of the ports industry only this year. If we ally that to this comprehensive report of 1978, surely this justifies the amendment calling for a National Ports Authority. I hope the Minister will appreciate that this report of 1978—exactly three years ago—must be even more valid today, in view of the facts that we have of the financial situation of some of the ports and in view of the observations which have been made by the managing director of the British Transport Docks Board. I beg to move.
Lord Bellwin: My Lords, I am sure that your Lordships will recall that we recently debated an identical amendment during the Committee stage of the Bill and the noble Lord, Lord Underhill, in fact has basically repeated, although at a somewhat more civilised hour, the same arguments as to why he favours the creation of a strong centralised ports authority; but I have to say that nothing I have heard him say tonight convinces me that the Government's decision to abolish the National Ports Council is misconceived. I will not repeat all that I said during the Committee stage, but there are just one or two points that I think I should emphasise.
First, as I have said before, in our view it is essential that those who manage and operate the ports industry should be given as much responsibility as possible for their own affairs. The Government are firmly of the view that the future health of the industry depends upon this. Second, the ports themselves have welcomed our decision to abolish the National Ports Council and have indicated that they are willing, and able, to tackle the problems now facing the industry. This is why we are abolishing the National Ports Council. There are strong and competitive ports in this country which, if they are given the opportunity, are capable of dealing with, and finding solutions to their problems. We recognise, certainly, that there is a challenge facing the industry, but the British Ports Association is enlarging and strengthening its organisation to meet this challenge.
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On the other hand, what would the creation of a strong, centralised National Ports Authority achieve? In the first instance it would simply take major decisions away from the very people who should be directly responsible for their own affairs. In particular, inherent in the idea of a national ports authority is the creation of some sort of national ports plan. I know the noble Lord has said on a previous occasion that such a plan forms no part of this amendment. But in practice this is what would inevitably result from a national ports authority which would be charged with considering
"…how any port should be improved and what services and facilities should be provided at any port".
But the development of such a plan would seriously distort the ability of ports to operate in commercial competition with each other. Indeed, experience has proved that such a plan would not work in practice. Ports being a service industry must be able to react flexibly and quickly to changing commercial circumstances. As experience in other spheres has shown, this would be prevented by a national plan which would simply promote development at some ports while preventing it at others.
I mentioned the British Ports Association a few moments ago in another context. Two of the functions for which they are now responsible are research and training in the industry. My noble friend Lord Rochdale, so eminent in these matters, referred to these functions at Committee stage and expressed the hope that the association would carry them out very well. These are important functions, and I very much endorse my noble friend's views.
Lord Underhill's proposals for the future of the ports, in our view, offer no way for a commercial industry to operate. It is essential that the industry be given greater, not less, freedom to determine its affairs. I hope your Lordships will recognise that the creation of a national ports authority is not in the best interests of the industry, certainly as we see it. I say, in conclusion, that I understand the point the noble Lord makes. Indeed, I was interested in his reference to the 1978 report, which had not been quoted previously. But I still think on balance the strength of the argument lies in the one I have just put, and it is for that reason that we do not feel able to accept the amendment.
Lord Underhill: My Lords, I am very sorry that the Minister has disposed of the 1978 report so simply. When we discussed this at Committee stage I did not refer to the 1978 Report. At that stage, frankly, I had not re-read it; I re-read it after the Committee stage, and it is very illuminating. Can this be left solely to the industry? The National Ports Council in this report of 1978, which was a report to the Secretary of State at that time, made it quite clear that proposals they had been trying to make had been thwarted by influential elements within the industry. How then can we propose that the industry itself should tackle these matters. I will not weary the House, but I have a list here of about ten reviews, some Royal Commissions, on the docks industry over the last 100 years. It has always required an outside body to deal with the situation. The Government are obviously adamant about this. I do not feel disposed

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to divide the House at this stage, but it is an important issue on which I wish there had been a bigger attendance, because this is a vital issue for the future of the very important ports industry. I will not withdraw the amendment, but I will not press it to a Division.
Lord Bellwin: My Lords, before the noble Lord sits down, I think it would be helpful to him if I were to say another brief word about the 1978 report. I understand that what happened was that that report was instituted by the then Secretary of State, who asked the council to carry out consultations on it. The noble Lord may or may not be aware that those consultations had not been completed by the time of the last general election. The council when it did make the report to my right honourable friend late in 1979 advised in much less centralising terms. The 1978 report was, in effect at least, withdrawn. Clearly, one can interpret that in the way one would want to do, but I thought I should make the point because I had not said a great deal on it.
On Question, amendment negatived.
Lord Underhill Lord Underhill moved Amendment No. 9:
Page 12, line 29, at end insert—
("( ) The powers and duties of the Council as defined in the Harbours Act 1964 shall pass to the Secretary of State").
The noble Lord said: My Lords, I should like to ask the Minister's views upon this. Now that the National Ports Council is to be abolished, and now that the House has defeated a proposal for a national ports authority, I should like the Minister to inform the House what will happen to all the powers the council has at the moment. We know that research and training are to be taken over by the industry. One would like to feel that all the other powers of the council are going to be dealt with and not just allowed to lapse. In this amendment I have asked that the powers and duties of the council, as laid down in the Harbours Act 1964 which dealt with the inception of the National Ports Council, shall pass to the Secretary of State. It is important that these powers should not be allowed to lapse. The National Ports Council has emphasised that if all these powers are to be taken over it will be necessary for some well-informed extra personnel to be attached to the department. I believe the noble Viscount, Lord Rochdale, added his comments to that at the Committee stage. I beg to move.
Lord Bellwin: My Lords, I am glad to have an opportunity to refer to the future arrangements being made for the work which has been carried out in the past by the council. In the first place, I must emphasise that the amendment would run counter to our policy of making the industry more responsible for its own affairs. The fact is that almost all of the council's statutory functions are being abolished. In some cases this will mean that a function will no longer be carried out at all. For example, its duty to prepare a national ports plan. I have already explained that this has been a dead letter for many years and we think it would be wrong to perpetuate it. In other cases, for example, in research and training and in providing assistance to harbour authorities in the exercise of their functions, the responsibility has been taken over by the industry
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itself through the British Ports Association. In two specific cases the Secretary of State is to take over a function from the council, namely, the collection of certain port statistics and decisions on objections against ship, passenger and goods dues.
In addition, the Secretary of State is repealing or reducing the scope of some of his own more detailed specific functions in relation to the ports industry, so that in general there will be less need for the individual specialised advice previously given by the NPC. He will be concentrating his interest on long-term and structural matters, and will work where possible in collaboration with the industry itself.
But one of the main tasks of the council has been to advise the Secretary of State, either on particular issues of the day or as part of his own exercise of specific functions, and in many cases the Secretary of State has been required to consult the council before exercising his functions. Examples are the requirement to consult the council on applications for harbour development, and about applications from harbour authorities for statutory powers by means of a harbour revision order. The effect of the amendment in respect of these functions, if taken literally, would be to create a very odd situation whereby the Secretary of State would have to consult himself before taking decisions on certain issues.
I should make it clear that the Bill does not in any way remove from the Secretary of State his responsibility for overall ports policy, and the powers which Ministers need to carry out strategic functions are being retained. Perhaps I could also refer back at this point to the remarks of my noble friend Lord Rochdale at Committee stage, when he referred to the degree of expertise within my right honourable friend's department to deal with ports questions. The Explanatory Memorandum to the Bill referred to about six additional civil servants, and we consider that this number of full-time staff should be sufficient. In view of the need to reduce the size of the Civil Service, the posts are being filled by redeployment within the department, but there is a wealth of specialist advice within the Department which can be called upon as needed. If we need a particular expertise from time to time which is not available within the department, we shall of course obtain it on a consultancy basis. This is likely to be the most efficient way to proceed. The additional staff is considerably less than the 20 which was suggested by the NPC itself, but I emphasise that we are determined to keep to the minimum the Government's involvement in the affairs of the ports.
I am convinced that the Government's proposals to free the ports industry from detailed ministerial control and to make it responsible for its own affairs provide the best way forward. We feel that this amendment would perpetuate detailed ministerial interference in the industry and would deny it the freedom and responsibility it needs to manage its diverse operations effectively and to respond quickly to changing circumstances. I hope that the noble Lord, Lord Underhill, will at least feel that I have tried to explain to him the situation and answer his point as to what will happen. I gladly do so.
Lord Underhill: My Lords, this was intentionally a probing amendment and I am grateful to the Minister

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for the very helpful information which he has given me. It is helpful from two standpoints. First, it is helpful to know the Government's viewpoint and, secondly, it is helpful to be able to check very carefully what the noble Lord has said and to compare it with the powers of the National Ports Council, and with the powers that we suggested for the Ports Authority and to see whether or not the position is clear and whether we need to come back to this matter on Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 6 [Amendments of the Harbours Act 1964]:
Lord Skelmersdale Lord Skelmersdale moved Amendments Nos. 10 and 11:
Page 58, line 7, after ("stating") insert ("in the case of an order to which paragraph 4B above does not apply")
Page 58, line 12, after ("stating") insert ("in the case of an order to which paragraph 8B above does not apply").
The noble Lord said: My Lords, I hope that it will be to the convenience of the House if we take Amendments Nos. 10 and 11 together. These are very minor technical amendments to clarify the provisions dealing with the application of special parliamentary procedure to harbour revision and empowerment orders. I hope we can deal with them quite quickly.
As your Lordships will recall, under the provisions of amendments we debated in Committee, harbour revision and empowerment orders in respect of England and Wales are to be subject to special parliamentary procedure only it they are opposed when they are made, while orders for Scotland are to remain subject to special parliamentary procedure whether they are opposed or unopposed.
The purpose of the amendments is to clarify the application of paragraphs 4(3) and (6) of Schedule 6, which deal with the publication of notices when an order is made. In the case of English and Welsh orders the notice must state whether the order is opposed or unopposed; if the order is unopposed and therefore not subject to special parliamentary procedure, the notice must state when the order will come into operation. All Scottish orders, on the other hand, are to remain subject to special parliamentary procedure, and this already has its own commencement provisions under the Statutory Orders (Special Procedure) Act 1945. The amendments therefore provide that paragraphs 4(3) and (6) apply only to English and Welsh orders. I beg to move Amendments Nos. 10 and 11 en bloc.
On Question, amendments agreed to.
Viscount Simon Viscount Simon moved Amendment No. 12:
Page 59, line 45, at end insert—
("(2A) A Minister, in deciding whether to make an order under this section, shall have regard to the desirability of maintaining the balance then existing between the various kinds of relevant knowledge and experience represented by the members of the harbour authority in question.").
The noble Viscount said: My Lords, I beg to move Amendment No. 12. This amendment deals with the point which I mentioned in Committee when we were considering the Motion that Schedule 6 should be
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the sixth schedule to the Bill. The Minister—and I cannot now remember which noble Lord it was who answered me—was good enough to say that he did not think that there was very much in the point. I had to confess that I personally did not think that it was a matter of terrific importance, but I did say that I knew that the British Ports Association was still unhappy about it.
Since then I have had the benefit of some discussions with the British Ports Association as a result of which I have put down this amendment. The only question is: if the Minister—and this is rather complicated because it is either the Secretary of State or the Minister of Agriculture in the case of fishery harbours—decides that he does not wish to continue to nominate members to port authorities, there was the fear that the withdrawal of ministerial appointments might upset the balance in some authority or other.
I questioned the British Ports Association as to whether they knew of any cases where this might happen. I was told of two or three cases where it was thought that if the ministerial appointments were withdrawn it would upset the general balance. For that reason we have suggested what I hope the Minister may think is a quite harmless and perhaps useful amendment which is that, "A Minister"—that means either the Secretary of State or the Minister of Agriculture—
"in deciding whether to make an order under this section, shall have regard to the desirability of maintaining the balance then existing between the various kinds of relevant knowledge and experience represented by the members of the harbour authority in question".
Just to remind your Lordships, because I mentioned this in Committee, if the Minister was making a harbour revision order and altering the constitution of the harbour, it would be subject to objections being made, and if objections were made there could be an inquiry. There is no provision for objections in this new paragraph of the schedule and that is why I am venturing to suggest that a Minister should bear this particular point of maintaining the balance of the various experiences represented on the port authority when deciding to exercise his power to cease to make appointments. I beg to move.
Lord Skelmersdale: My Lords, I am very grateful to the noble Viscount, Lord Simon, for raising this matter again and I am very sorry that the provisions of paragraph 5 of Schedule 6 are still a cause for concern to the British Ports Association. We have given assurances, both in correspondence and during the Commons Committee stage, as to the limited extent of the power and how we propose to exercise it. I hope that I can satisfy the noble Viscount, the British Ports Association and your Lordships on this occasion.
We have already explained, during Committee stage in this House, the limited scope of this power. Subsection (2) of the new Section 15A excludes from its application those port authorities to which the Secretary of State appoints all the board members, excluding ex-officio or co-opted members. In practice this means that the Secretary of State's powers of appointment to the major public trust ports, such as Dover, London, Forth and Tyne, are unaffected by the new power. The Secretary of State recognizes

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the value of ministerial appointments to these ports where members are appointed, on an independent and unbiased basis, for their personal qualities and expertise rather than as representatives of particular interests. He will therefore continue to make appointments to the major commercial trust ports.
The appointments covered by the power are, on the other hand, almost entirely those of the smaller public trust ports to which the Secretary of State appoints only a small number of members out of a much larger board membership. The proportion of ministerial appointments varies from port to port, but in the ports covered by the power the maximum number of ministerial appointments is four, and the actual number is usually only one or two. The appointments made by the Minister of Agriculture, Fisheries and Food and the Secretary of State for Wales—an appointee who the noble Viscount did no mention—to a number of fishery harbours are also covered by the power. In these cases the kind of board member required is somebody with local knowledge of the area and harbour and in these circumstances the harbour authority themselves are in a much better position to identify suitable appointees.
It has been argued that ministerial appointments provide an essential means of ensuring a proper balance in the composition of authorities. We accept, as I have already said, that this is certainly true in the case of major public trust ports. But, in practice, the number of ministerial appointments to the smaller ports is, in our view, likely to be too small to have any significant balancing effect. For example, the Secretary of State appoints only two members to the Berwick Harbour Commision out of a total membership of 18 and only one member to the Cowes Harbour Commission out of a total membership of 19. It is only from these harbours, with more localised interests, that the Secretary of State proposes to consider withdrawing from making appointments in accordance with our policy of withdrawing wherever possible from unnecessary engagement in port affairs.
I recognise, of course, that this amendment does not seek to delete the new power from the Bill altogether, but instead requires Ministers to have regard to maintaining the existing balance of interests on the board. We will certainly pay due regard to the balance of a board in deciding whether to withdraw from making ministerial appointments, and in making any alternative arrangements in consequence of a withdrawal. But we consider that this amendment seeks to influence the outcome of the Minister's review in advance. It sets up a presumption in favour of leaving the existing balance of interests on the board unaltered. I am afraid that this would be inconsistent with the purpose of the new provision, which is precisely to enable Ministers to review the case for continued ministerial involvement in some of the smaller ports which are of local rather than national interest, and, in the event that they withdraw from this involvement, to make the alternative arrangements which appear to be appropriate in the particular local circumstances. Some of the existing constitutions are now very old. For example, that at Teignmouth dates back to 1924, while that at Cowes was established as long ago as 1897. I am sure that we all recognise that circumstances over this very long period of time are bound
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to change, and we believe it is right that such arrangements should be renewed.
None the less, I hope that I can give the noble Lord and the British Ports Association some reassurance. No decisions have yet been taken on the ports to which Ministers will cease to make appointments. Furthermore, the Bill requires the Minister to consult with the harbour authority and others affected, and full account will be taken of the views expressed. Thirdly, in view of the small proportion of members appointed by a Minister at the ports to which the power can apply, the scope for any action by the Minister to have a marked effect on the balance of interests represented on the board is bound to be small. The power will be limited to making alternative arrangements for those appointments made by a Minister. To take Cowes as an example again, my right honourable friend's power will be limited to either dropping the ministerial appointment and reducing the size of the commission by one, or else to providing for his one appointment to be made by someone else. He cannot reconstitute the whole commission.
Finally, may I stress that we shall not approach the matter with any preconceived ideas as to the right solution in any particular case. If, after full consultation with the port authority and others concerned, we are satisfied that a ministerial appointment remains an essential means of ensuring a proper balance, I can assure your Lordships that the Government will not seek change for change's sake. With these assurances I hope that the noble Viscount, Lord Simon, will be able to accept what I have said and withdraw his amendment.
Viscount Simon: My Lords, I am much obliged to the noble Lord for what he has said. He mentioned Teignmouth, and curiously enough I think that Teignmouth is one of the ports which I am advised is concerned about the position—I beg your Lordships' pardon, it is not Teignmouth, but Falmouth. Anyway, I am very satisfied with what the Minister has said. The assurance that he has given will, I hope —because I cannot speak for them—be acceptable to the British Ports Association. I am sure that the Minister will appreciate the object of the amendment. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.5 p.m.
Lord Underhill Lord Underhill moved Amendment No. 13:
Page 63, leave out lines 13 to 19 and insert—
("(3) For section 31(1) (right of objection to ship, passenger and goods dues) there is substituted—
"(1) Subject to the following provisions of this Act charges to which this section applies are ship, passenger and goods dues and cargo handling charges.
(1A) In this section "cargo handling charges" means charges for loading, unloading and handling goods where such services are supplied by a harbour authority or its agents or a subsidiary or associated body or person and there is no other supplier of such services at the dock quay or wharf at which the particular services are provided or no other supplier other than the harbour authority, its agent or a subsidiary or associated body or person."
( ) For references in section 31(2) to ship, passenger and goods dues there shall be substituted references to ship, passenger and goods dues and cargo handling charges.").
The noble Lord said: My Lords, I shall be as brief

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as I can in setting out the purpose of this amendment and its background. The Harbours Act 1964 makes provision for port users to object to charges for ship, passenger, and goods dues which are imposed by a harbour authority. At present there is appeal to the National Ports Council, but with the abolition of the council the appeal will now fall upon the Secretary of State.
At the Committee stage it was emphasised that the conditions that existed in 1964 no longer apply because in most ports at that time there were a number of employers who provided stevedoring and similar services in competition one with another. There have been considerable changes since then and there is general agreement that the position as it was in 1964 does not apply at this stage. Because of that situation it is suggested that in addition to the appeal against ship, passenger, and goods dues, there should be opportunity for port users to appeal against other charges imposed by a harbour authority. There is general agreement that in some ports the port authority is the sole employer of dock labour. I believe that this is accepted by the Under-Secretary for Transport, and the noble Lord, Lord Skelmersdale, in the Committee stage agreed that that was the situation in some ports.
The National Waterways Transport Association, which is an independent body dealing with freight operators on our waterways, is very concerned about the monopolistic situation which is developing in some of the areas in which its freight operators on waterways operate, and some of the leading individual operators have expressed their concern about this. The noble Lord, Lord Skelmersdale, concluded his remarks at the Committee stage as follows:
"Were we satisfied that there was a monopoly I am sure we would look very carefully with regard to considering the suggestion of the noble Viscount, Lord Hanworth ".—[Official Report, 8/6/81; col. 15.]
That suggestion made by the noble Viscount was that provision should be made in the Bill for independent arbitration.
The amendment seeks to provide that there should be the right of appeal against cargo handling charges where the harbour authority is the sole provider of such services. Therefore, this amendment is considerably different from the one that was moved during the Committee stage. Where the harbour authority is the sole provider of these services, it must be recognised that, therefore, there is a monopoly in those particular areas, and it is in those circumstances only that we are now suggesting that there should be this right of appeal. It is so reasonable that I think it meets all sides, and I hope the noble Lord will feel that he can accept it.
The Countess of Loudoun: My Lords, I should like to support this amendment. There is a good deal of concern about the increasing emergence of monopoly situations within the port industry. This amendment would extend the provisions of Section 8 of the 1964 Act so as to bring within it all charges raised by a port authority. It would, through the Secretary of State as successor to the National Ports Council, help to protect the interests of the private sector companies and the British Waterways Board, and thus help to allay
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some of the present fears. I hope that your Lordships will feel able to support it.
9.8 p.m.
Viscount Simon: My Lords, the noble Lord, Lord Underhill, and his noble friends have certainly gone some way to meet the objection which I ventured to raise to the amendment they proposed before by confining this to ports where there was a monopoly in the provision of cargo handling. I still think there is a substantial difference between this and the dues. It was indeed very well explained by the noble Lord the Minister on the last occasion.
The ship dues of course arise from the provision of facilities under a monopoly position. It may be that in certain ports the cargo handling is a monopoly at the present time of the port authority. But it is not a statutory monopoly, and consequently if the users think that the rates are too high they can always set up another business themselves to do the job. I speak subject to correction, but I think there is only one port that has a statutory monopoly and that is the Manchester Ship Canal Company, but I may be wrong.
Elsewhere I think it would be found that there is no statutory monopoly, and if the service provided by the port authority is too expensive everybody is at liberty to try to find somebody else to do it. The trouble these days is that it is such an unrewarding job trying to run cargo handling in any port that everybody is only too pleased when the port authority take it over.
Lord Skelmersdale: My Lords, when I first looked at this amendment I thought that it was probably rather a fast serve coming low over the net to my backhand, but on reconsideration I accept that I was wrong and that it was perfectly properly put down, as the noble Lord, Lord Underhill, explained. As I am sure your Lordships will recall, we had a debate on this subject during the Committee stage. I had hoped on that occasion that I had persuaded the Opposition that there was no case for extending the existing right of appeal against ship, passenger and goods dues to cover cargo handling charges also. For the second time this evening, I will have another go.
The argument, as we have just heard, is that port authorities, subsidiaries or associates are now the main employers of dock workers, and in particular that they have a monopoly of the cargo handling services provided to port users at certain ports or wharves. It is certainly true that over the last 15 years or so port authorities have become the main employers of dock workers and at some ports there is effectively only one provider of cargo handling services. But there is simply no way in which such undertakers can exercise an effective monopoly. To take an example from the British Transport Docks Board, they are virtually the only dock employer at King's Lynn. But by no stretch of the imagination can this be regarded as a monopoly when there are ports from Yorkshire to Poole which are in competition for business with King's Lynn. This is the point made by the noble Viscount, Lord Simon. That they are not in a monopoly situation taken as a whole, was I think the noble Viscount's point.

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Among the competitors are alleged monopolists such as Ipswich and Great Yarmouth. With continually improving road communications to ports, users have an increasing choice of port facilities at their disposal and the ports are only too well aware that users can switch business from one port to another. To talk of a monopoly in this situation is, I would suggest, not to talk of the real world.
Lord Brougham and Vaux: My Lords, may I interrupt my noble friend? I must disagree totally that you can switch ships from one port to another. If you do that, dock labour will black you and then you just cannot discharge your vessel. If you try to switch vessels from one port to another and the dock labour dig their heels in, you are landed with a vessel with no harbour to go to and a blacked cargo.
Lord Skelmersdale: My Lords, I was not suggesting that you should switch the vessel's point of arrival when it was on the high seas, but I was suggesting that since in advance you would know what the dues were going to be in any particular port, you would therefore be able to choose your port to take advantage of the dues and charges in a particular port.
There is also an important distinction between ship, passenger and goods dues, on the one hand, and cargo handling charges, on the other. Although I discussed this at some length during Committee stage the point is important and is, I think, worth emphasising again. The dues are levied on all port users in respect of the use of the basic or essential port and harbour facilities, and reflect the authority's costs in the provision of the harbour infrastructure and the maintenance of approach channels, lights, buoys and beacons, and so on. They are essentially in the nature of tax, an amount payable by a user but not necessarily directly related to the services he receives. Other port charges are, on the other hand, levied for specific services provided to users, for example for loading or unloading a ship or for the storage of goods, and they are related to the kind of services provided. But the same simply cannot be said of ship, passenger and goods dues and that is why we have decided to maintain the status quo and retain the right of objection to these dues.
I assure the House that the Government have given very serious consideration to the many requests to extend the existing right of appeal. We introduced one amendment on Report in another place, which is now Schedule 6(8), which places a clear responsibility on port authorities to specify their ship, passenger and goods dues element of a combined charge where the user requires them to do so. But we have received no evidence since the Bill was printed to suggest that an extension of the appeals procedure on the lines proposed by the noble Lord, Lord Underhill, is either necessary or justified. We have also considered the possibility of transferring the appellate function under Section 31 of the Harbours Act to an independent body, a point that was raised during the debate in Committee, but we concluded that the function could not simply be carried out by a body which had no other responsibility for ports affairs. But whoever the appellate authority would be, an extension of the appeals procedure would still result in an unnecessary and unjustified extension of
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control over the ports' pricing policies. That is what we wish to avoid; it is not only a question of refusing to extend ministerial control. I hope that on this occasion I have explained to your Lordships' satisfaction the Government's reasons for not accepting the amendment, and that accordingly the noble Lord will feel able to withdraw it.
Viscount Simon: My Lords, as the Minister referred to my comments, perhaps I should inform him that I am afraid he did not correctly understand what I was trying to get at, which was no doubt my fault.
Lord Underhill: My Lords, I assure the Minister that I clearly recognise the difference between the normal dues and the dock charges about which we are talking. The noble Lord said no evidence had been produced since Committee. I presume that he and his department receive the same pressures from the commercial operators—and I am talking about commercial operators—on British waterways, freight carriers, as we receive. They are very concerned with what they describe as a developing monopolistic situation, particularly in relation to Sheffield and South Yorkshire Navigation; they are very worried about Associated British Ports being taken over from the British Transport Docks Board in the area and they argue that a monopoly situation is developing. The commercial private operators have raised the matter. As we have the evidence, I assume the department has it.
The appeal we are suggesting would be to the Secretary of State, in the same way as the appeal will be against passenger, ship and goods dues. There would not be a great number of appeals, but in fairness, if commercial operators are worried about this, they should have the opportunity to appeal, and only where there is a monopoly situation of the harbour authority being the only employer. This seems so reasonable, and the Minister's reply so unreasonable, that I must press the matter to a Division.
9.18 p.m.
On Question, Whether the said amendment (No. 13) shall be agreed to?
Their Lordships divided: Contents, 23; Not-Contents, 68.

CONTENTS

Ampthill, L.

Loudoun, C.

Ardwick, L.

Monson, L.

Bishopston, L.

Mountevans, L.

Boston of Faversham, L.

Peart, L.

Collison, L.

Phillips, B.

David, B. [Teller.]

Pitt of Hampstead, L.

Hatch of Lusby, L.

Ross of Marnock, L.

Houghton of Sowerby, L.

Stone, L.

Jeger, B.

Underhill, L.

John-Mackie, L.

White, B.

Kinloss, Ly.

Young of Dartington, L.

Llewelyn-Davies of Hastoe, B. [Teller.]

NOT-CONTENTS

Airey of Abingdon, B.

Belstead, L.

Auckland, L.

Bessborough, E.

Avon, E.

Boardman, L.

Balfour of Inchrye, L.

Brougham and Vaux, L.

Barrington, V.

Campbell of Alloway, L.

Bellwin, L.

Cathcart, E,

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Cockfield, L.

Macleod of Borve, B.

Cork and Orrery, E.

Marley, L.

Craigavon, V.

Monk Bretton, L.

Croft, L.

Mottistone, L.

Cullen of Ashbourne, L.

Moyne, L.

Denham, L. [Teller.]

Murton of Lindisfarne, L.

Drumalbyn, L.

Noel-Buxton, L.

Dundee, E.

Portland, D.

Ellenborough, L.

Rankeillour, L.

Elles, B.

Reigate, L.

Elliot of Harwood, B.

Rochdale, V.

Ferrers, E.

Sandford, L.

Fortescue, E.

Sandys, L. [Teller.]

Gardner of Parkes, B.

Selkirk, E.

Gainford, L.

Sharples, B.

Greenway, L.

Simon, V.

Gridley, L.

Skelmersdale, L.

Hooson, L.

Stradbroke, E.

Hornsby-Smith, B.

Strathcarron, L.

Inglewood, L.

Strathclyde, L.

Kemsley, V.

Trenchard, V.

Killearn, L.

Vaizey, L.

Kinnaird, L.

Vickers, B.

Long, V.

Vivian, L.

Lucas of Chilworth, L.

Waldegrave, E.

Lyell, L.

Ward of Witley, V.

McFadzean, L.

Westbury, L.

Mackay of Clashfern, L.

Winstanley, L.

Resolved in the negative, and amendment disagreed to accordingly.
Clause 19 [Disqualification for repeated offences]:
9.26 p.m.
The Lord Advocate (Lord Mackay of Clashfern)The Lord Advocate (Lord Mackay of Clashfern)moved Amendment No. 14:
Page 16, line 10, after ("3") insert ("penalty").
The noble and learned Lord said: My Lords, your Lordships will remember the stirring address on the subject of penalty points that was delivered by the noble Lord, Lord Houghton of Sowerby, at Committee stage, with which the Government were very happy to agree. These amendments are consequential to the acceptance of the amendments put down by the noble Lord, and I invite your Lordships to agree with them. I am speaking to Amendment No. 14 as well as to Amendments Nos. 64 to 69, which are for the same purpose. I beg to move.
Lord Houghton of Sowerby: My Lords, I almost apologise for inflicting so many penalties upon your Lordships' patience.
On Question, amendment agreed to.
Schedule 7 [Points to be endorsed]:
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendments Nos. 15 and 16:
Page 67, line 23, at end insert—
("7(4). Failing to provide specimen for breath test. 4.").
Page 67, line 24, column 2, at end insert ("for analysis").
The noble and learned Lord said: My Lords, with the permission of the House I should like to move Amendments Nos. 15 and 16 together, and to speak to Nos. 22 and 70 at the same time. Considerable concern has been expressed, both in the House at Committee stage and elsewhere, about those drivers who try to escape the breath test requirements. It
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was suggested, therefore, by the noble and learned Lord, Lord Diplock, in the amendment that he put down at Committee stage, that such drivers should be disqualified as if they had committed one of the main drinking and driving offences. We have carefully considered this matter and have come to the conclusion that there is a need for a power to order disqualification if the circumstances of any particular case are serious enough to warrant this. Accordingly, we are proposing that this power should be introduced.
However, as all offences subject to discretionary disqualification must be endorsed on a licence, it is also necessary to allocate a number of penalty points to the offence. The amendment to Schedule 7, therefore, assigns four penalty points for the offence of failing to provide a specimen for a breath test. This is the equivalent to one-third of a disqualification, which is what it would be if the offence currently attracted discretionary disqualification. Consequential to that amendment it is necessary to clarify the wording in line 24 so that the failure to supply a specimen of breath for an "in charge" offence relates to the evidential breath specimen and not to the screening test.
The Government consider that this additional power of disqualification will be a helpful addition to the powers available to the court in tackling these irresponsible drivers who endeavour to evade the drink-drive laws. I therefore commend these amendments to your Lordships. I beg to move.
On Question, amendments agreed to.
Lord Underhill Lord Underhill moved amendment No. 17:
Page 67, line 39, column 3, leave out ("5") and insert ("4–8 at the discretion of the court").
The noble Lord said: My Lords, this is a similar amendment to one which was brought forward at Committee stage to deal with the question of a person causing a vehicle to be taken on the road uninsured and unsecured against third party risk. I think that all noble Lords will agree that this is a serious offence and one which deserves to have a higher number of penalty points than five. The amendment seeks to give a top rating of eight points but to have a range of from four to eight. When this question was brought up in Committee the noble and learned Lord the Lord Advocate said that it was obvious that the arguments put forward were arguments he would like to consider. On that basis the amendment was withdrawn. I hope that the noble and learned Lord has been able to consider them. I will move the amendment briefly in the hope that the Government see fit to accept it. May I ask leave to delete the words "discretion of the court" from the amendment since I am told that they are unnecessary?
The Deputy Speaker (Lord Ampthill): My Lords, Amendment proposed: Page 67, line 39, column 3, leave out ("5") and insert ("4–8").
Earl Fortescue: My Lords, I should like to support this amendment which seeks to give courts some discretion as to the number of penalty points that they can impose for the offence of driving uninsured. In my own experience, which is limited to one court and that not a very large one, the penalties for this

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offence vary from a fine of several hundreds of pounds down to a fine of £5 and £10 and even, in certain somewhat unusual cases, to no fine at all but a conditional discharge. Another reason for supporting this amendment is that I know that the Magistrates' Association very much favour the idea of courts having some discretion as to the number of points awarded for this offence.
In another place the Government established a precedent for a range of points for the offences of failing to stop and failing to report an accident. At the Committee stage in this House it was agreed that a range of points should be available for the offence of careless driving.
Also the report of the interdepartmental working party (which was not available until after the Second Reading in this House) comes out, on page 55, in favour of a range of points. I think that the only argument against giving courts such a discretion is that it may take up more court time. I think that this argument can be exaggerated and, in any event, I feel sure that any extra court time is more than offset by better justice. I therefore very much hope that my noble and learned friend the Minister will be able to accept this amendment or, failing that, that the noble Lord, Lord Underhill, will press this amendment.
Lord Lucas of Chilworth: My Lords, I should like to support this amendment as I did at Committee stage and for exactly the same reasons that I referred to at that time. I am a little sorry that my noble and learned friend has not been able to communicate the further thoughts until perhaps only a few hours ago. One might have expected the department to have come up with some suggestions following that Committee stage. The main objection which I still have is that we cannot allow for the sake of the convenience of the court the opportunity for justice to be swept into one penalty point number. I reiterate that I believe that the insurance companies themselves are to a very large extent to blame for some people failing to have insurance.
I do not want to labour this too much because I have said on other occasions that I am no great friend of the insurance companies. Small print is a very fine thing if you care to read it through. There are a great number of misunderstandings—I put it no higher than that—as between a client, a broker and a company. Frequently the cardinal point is: How much is the policy going to cost? It could be with the best will in the world that the broker says, "I can get it for £X", but fails to say the limitations. There could be certain limitations, particularly when one changes cars, drives a friend's car where there are limitations on the policy, and finds himself uninsured. So there are degrees.
On the other side is the point that insurance is increasingly expensive, and we are advised that premiums are likely to increase by another 10 per cent. or 15 per cent. later this year. There is the temptation to avoid taking out any policy at all. That is pretty serious. Notwithstanding the safety net arrangements with the bureau, I have to say that although the bureau say, "We have the money in the kitty, and if there is an accident committed by somebody uninsured, the bureau will pay out" there are numerous cases, now
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several years old, where the bureau have not paid out and it has not been contested, whereas a person who was properly insured could have had legal representatives who could have made a proper case of it. On the one hand there is the inadvertent and the misunderstanding, which is more a technical offence and should therefore qualify for a comparatively low number of points; on the other side of the coin there is the mischievous avoidance of the responsibility. That should be very heavily penalised.
I hope that my noble and learned friend is not going to advance the same argument—if he is going to advance any argument at all—against this amendment that the yardstick for the points system has been taken from the average of fines throughout the country. I do not find that to be a satisfactory yardstick. It may be a yardstick but Parliament have the opportunity of looking at the situation perhaps a little more dispassionately than the department who may be relying on certain satistics of average fines. I believe that the noble Lord, Lord Underhill, and my noble friend on this side of the House, and others who spoke in Committee, believe this to be something of a more serious nature that should have a penalty point variation moving towards the higher end for the more serious offences. I hope that the noble Lord pursues this argument.
9.40 p.m.
Lord Mackay of Clashfern: My Lords, as I said at Committee stage, we undertook to look at this matter and we have indeed done so very carefully. I gave reasons at Committee stage as to why we were opposed to the extension of discretionary points to offences other than failure to stop and failure to report. Of course, I agree with my noble friend Lord Fortescue that we did accept that the circumstances of those offences were very special. The offence is on the increase and it is a very important and dangerous trend in the traffic scene. On the other hand, I do not propose to go over again the arguments which I advanced at Committee stage against the discretion.
There is one aspect of the matter that I think can be easily lost sight of. My noble friend Lord Lucas of Chilworth was inclined to advise me against advancing this argument, but unfortunately I have to say that on this occasion I cannot take his advice in total. It seems to me important that the present system is based on a fairly coherent analysis of the decisions of magistrates up and down the country as to the relative severity of these offences.
As I explained, the points system is based on that very considerable body of experience, which is not to be set aside lightly. Of course, I accept it is perfectly open to your Lordships to decide that the generality of magistrates have got the balance wrong and at some particular level it requires changing, but I would certainly suggest that we need pretty strong reasons to reach that view. Personally I do not feel convinced so far that the magistrates are so wrong in treating careless driving and insurances generally as of equal seriousness, as is suggested, by putting 2 to 5 points on careless driving, in accordance with your Lordships' decision in Committee, and 4 to 8 points, as in the present amendment.
I would also venture to suggest that an important aspect of justice as between individuals, particularly

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when so many cases are in issue, is the question of consistency. Each magistrates' court, applying its mind to this matter, reaches a view; and if they have a discretion on points then it is very natural that different magistrates' courts, applying their minds very much to the same circumstances, may reach different points of view. I think that anyone with experience of this matter will know that a great deal of ill-feeling is sometimes generated where apparently similar cases are treated very differently. That is not an argument against all discretion, but it is an argument that indicates that consistency in sentencing is an important aspect of justice, not to be overlooked.
I mentioned before, and I think it is important, that the more discretion that is given to the courts in this matter the more time each of these cases takes up; and when one thinks of the number of such cases and multiplies that time by the total number, it involves a quite considerable amount of court time. My noble friend says it is not right to put into the balance the convenience of the court, but that is not what I am thinking of; I am thinking about the total amount of resource that we are able to devote to the administration of justice. There are many calls on our national resources: we hear about this continually. It is a question of priorities, and the Government must have regard to what can be allocated properly to the administration of justice and take account of that in the powers that the courts are given—because this is
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an attempt to improve on the present totting-up system where there is no discretion in the allocation of the equivalent of points and because of the present system the offences that are subject to this procedure are all to be treated equally. This, even with fixed points, is a considerable refinement and improvement upon that.
However, in the light of all that your Lordships have said, and particularly in the light of what has been decided already in relation to careless driving, if your Lordships are disposed to press this amendment, then I would not feel disposed to press it to a Division.
Lord Underhill: My Lords, I am grateful for the last remarks of the noble and learned Lord the Lord Advocate. He said that one should not set aside lightly the general view of justices on these offences, but neither should we set aside lightly the effect on the individual. Justice must apply not only to the person who is to be brought before the court, but to the individual who may be suffering from a very serious accident and whose life may be completely ruined. If a person takes a vehicle on the road without insurance, that is almost as serious as drinking and driving. That is something with which I think your Lordships will agree. In view of the encouraging remarks of the noble and learned Lord, I will press this amendment.
On Question, amendment agreed to.
9.46 p.m.
Lord Lucas of Chilworth Lord Lucas of Chilworth moved Amendment No. 18:
Page 68, line 16, column 3, leave out ("3") and insert ("2–3").
The noble Lord said: My Lords, with this amendment we return to the question of speeding. I do not want to be at all difficult, but there are one or two points which I should like to put to my noble and learned friend. I was a little disturbed when he said, in effect, that we have to pay due regard to the amount of money that we can afford for the administration of justice. I am not trying to be at all clever, but is he telling us that justice has a price tag? If he is saying that, then this further amendment, altering the penalty points to be awarded for speeding offences, is fairly important.
There can be only one difference between this amendment and the previous one, which is that in the previous amendment there was no alternative charge, while in the case of a speeding offence there is a range of alternative or complementary charges. That can be the only defence for having a fixed penalty for a speeding offence. However, this amendment attempts to establish the fact that there are degrees of speeding.
The first degree is that of the technical offence of exceeding the speed limit. It might be through carelessness, misjudgment or a number of things, causing no great damage to anybody and not offending the sensibilities of people. It might be that, as a result of a number of excesses over a stretch of road, the police authorities decide to set up a trapping system and anybody who is a few miles over the odds when going to work in the morning gets caught in the net. That driver is penalised with precisely the same number of points as somebody who exceeds the speed limit without proper regard, though without necessarily being guilty of reckless or careless driving, in a different area and in different circumstances, in which case there should be a further penalty.
During the Committee stage, my noble friend asked, in effect, "After all, what are two or three points?"He will probably remember the occasion. I say that if you have nine points, due to a very serious misdemeanour nine or 12 months earlier, two or three points can be the difference between keeping your job and losing it. It is the difference between compulsory disqualification and teetering on the brink. It might be for what I described as a technical offence. It is for that reason that we ought to have this particular variation. It is understood that the police are unlikely to want to prosecute for the minor and the technical offence, and that it may be embraced at some time in the future—next year or possibly the year after—into a fixed penalty scheme. I quite accept that. So if one had at this stage a variation which, although only one penalty point apart, recognised two degrees of the same offence, surely it would ease the passage of the fixed penalty system.
Your Lordships may remember that, with one exception, all noble Lords who spoke to this amendment at the Committee stage gave it their general favour. It was because it was very late at night that I agreed to withdraw it and to consult my noble friends and other noble Lords. I have consulted many of them.
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They still believe, as I do, that a variation in the penalty points system is just in this instance. I beg to move.
Lord Houghton of Sowerby: My Lords, I think that this amendment is a mistake. If there is a scale of penalty points, the more rule of thumb they are the better it is. We have begun to introduce into this scale grounds for argument on the bench as to whether it is a two or a three point offence, or as to where it comes between four and eight points. I doubt whether this is justified. If it makes any difference to the grand total as to whether a driver exceeding the speed limit has a score of two penalty points or three, it seems to me that he is a pretty bad man to be on the road, anyhow, and that probably he ought to have a higher penalty rather than a lower penalty against him. We know that the speed limit is widely disregarded. Walk outside this place at any hour of the day, but especially at a time when your Lordships are leaving, and see what is happening. Why we do not have more by-elections in Parliament is a miracle to me because of the way people go by this place at terrific speed. Motor cycles do not seem to think they come within the speed restrictions. And the more noise they make the less they think that they come within any curb that has been laid down by the Transport Act.
With great respect to the noble Lord who has moved this amendment, I should leave it alone. This is difficult, anyway, to enforce. There is no point in messing about in this fastidious way between two and three points. It probably ought to be five, so let us leave it where it is.
Lord Mottistone: My Lords, I could not disagree more with the noble Lord, Lord Houghton of Sowerby. I think that my noble friend has got a point. It sounds as though the noble Lord, Lord Houghton of Sowerby, is essentially a pedestrian and has not had the bitter experience of being "had up" for speeding when he really has not been speeding, as opposed to being "had up" for speeding when he really has. I recognise the difference. I fully admit that it has happened to me. It is very good to have a discretion here. There are so many times when one can inadvertently drive too fast. The road is clear, you are not doing any harm to anybody, but technically you are going slightly too fast. I admit that there are other times when you are in a frightful hurry and when you hope desperately that there is no policeman near you, but sometimes there is. I think that the noble Lord, Lord Houghton of Sowerby, is speaking very much from the point of view of the pedestrian. Therefore I ask my noble and learned friend to forget what he said and to turn back to the very excellent arguments of my noble friend Lord Lucas of Chilworth.
Lord Underhill: My Lords, I fully appreciate what my noble friend Lord Houghton of Sowerby has said. I can understand the case he puts forward, but I supported the view expressed on this amendment at Second Reading and at the Committee stage, and I have no reason to change my support now. I do not happen to have a halo around my head because only once have I been caught for speeding. It was turned midnight, on a road with no traffic anywhere near me.

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Technically it was an offence. I could not have hurt anybody. On the other hand, you can get speeding offences which are extremely dangerous. That is why there is a case for a range of penalties. No doubt the noble and learned Lord the Lord Advocate will be replying to this debate, and I should like to congratulate him because I gather that today is his birthday. He is in such a happy mood that he agreed with the last amendment; I hope that he is still happy and will agree with this amendment.
Baroness Macleod of Borve: My Lords, I do not agree at all with points discretion per se, except in this particular case. I think there should be points discretion between speeding at 40 miles per hour on a road with a 30 miles per hour speed limit and speeding at 120 miles per hour on a motorway that has a 70 miles per hour speed limit, and I support my noble friend's amendment.
Lord Mackay of Clashfern: My Lords, I should like to begin by thanking the noble Lord, Lord Underhill, for his good wishes. So far as accepting views is concerned, I think I have shot my bolt in that respect. Not for the first time I am very grateful for the remarks which have been made by the noble Lord, Lord Houghton of Sowerby, because in my submission to the House this proposal is indeed attempting to introduce very fastidious discretion into this matter. There are some 300,000 such cases every year and, as one of the law officers who has a responsibility for the administration of justice, I certainly cannot be indifferent to the proposal, which would place considerable extra burdens on the courts at a time when there are already quite intolerable delays in dealing with very serious cases—as anyone who has any connection with the administration of justice knows.
It is not a question of justice having a price tag—not at all. However, it is extremely important that justice should not be held up by the kind of minute discretion which this particular amendment seeks to give. The points system, by its very nature, will have to be a broad brush system and, of course, offences may vary in seriousness. If one is going to differentiate too finely one would not stop at two points and three points but would go on to have 2.1 points, 2.2 points and so on, with no limit to the fineness of the discretion. I believe that, in practice, there must be a limit on the degree to which one can carry this kind of discretion. As I said before, if one tries to be too precise one will run into the opposite danger of inconsistency, and I believe that this is what would happen in relation to speeding.
I very much doubt whether magistrates—with all the conscientiousness they bring to discharging their difficult task—could develop a consistent criterion for differentiating between a two points case and a three points case. What is a technical offence? How far over the speed limit does one need to go? What time of night does it need to be? And so on. One can imagine almost interminable arguments on this matter. The amount of excess speed is not in itself a sufficiently reliable indicator because there are many other circumstances and the noble Lord, Lord Underhill
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referred to some of them. I believe that fine discretion of this kind would lead to a strong sense of grievance among many people who were subject to the system. It would be felt by someone who was penalised three points that they were no worse, given the time of night, the conditions and the speed at which they were travelling, than someone who was penalised two points in, perhaps, the same court or a neighbouring court.
Lord Brougham and Vaux: My Lords, after the announcement made by Mr. Fowler not so long ago, which was in all the newspapers, the press reported that "on the spot" fines would be between £10 and £20. This is a variation. The tickets may be for £10·50, £11·50 or £11·75 and this would be a variation. If variation is to be introduced later in the value of "on the spot" fines, then why not introduce the differentiation now? I know this is something for the future but I believe it is something the noble and learned Lord should consider now.
Lord Mackay of Clashfern: My Lords, I am just coming to the question to the effect of this amendment on the fixed penalty system. The arguments that I have already developed in my submission apply very strongly to the speeding case because of the great number of such cases, but my noble friend's intervention came at an appropriate time because I was just about to pass to the relationship of this proposal with the possible extension of the fixed penalty system to the less serious endorsable moving traffic offences. When I raised this argument before I was accused, I think, of using it almost as a gambler's last desperate throw because I had not used it in relation to careless driving or insurance offences. However, the argument is not relevant to these offences because we are not proposing that the fixed penalty system should be extended to cover them. It is relevant to speeding offences which we would like to see included in an extended fixed penalty system.
I believe this would be a reform which would be widely welcomed. We believe that it is a reform which would have advantages for both the courts and the motorists. But I cannot see us being able to implement it in any satisfactory way unless we have fixed points for the offences concerned. In theory it may not be totally impossible to have a fixed penalty system with variable points but in practice the operational difficulties for the police would be so great that our in view the balance of advantage would be against making the change.
In all the matters that we have been considering there is a balance to be struck. In relation to the question asked by my noble friend, the fixed penalty system which we have in mind would be a system providing for fixed penalties for given offences. There would of course be different fixed penalities for different offences, and I think that was what my right honourable friend was referring to in the remarks to which my noble friend drew attention. In the operation of a fixed penalty system which is going to be reasonably efficient I think it is necessary to have fixed penalties for given offences and that is why I suggest that granting a discretion on the points aspect is not advisable.
Lord Brougham and Vaux: My Lords, I thank the noble and learned Lord the Lord Advocate for clearing that matter up for me.
Lord Mackay of Clashfern: My Lords, the other matter that I should mention is that if the offence is entirely technical and there are special reasons for non-endorsement, of course the points do not arise at all, so there is a discretion in the court in these circumstances to impose no points at all because it is only when the endorsement is put on that the points arise. So there is an element of discretion already—nothing or the fixed number that we suggest.
In these circumstances, I strongly press your Lordships not to accept this amendment. Some of the arguments are used in relation to the earlier amendments, and the strength of the arguments varies according to the case, but this is an amendment which I would strongly press your Lordships not to accept.
Lord Lucas of Chilworth: My Lords, I am most grateful to my noble and learned friend for his very long answer. I should like to say at the outset that I am not surprised that the noble Lord, Lord Houghton of Sowerby, should have advanced his arguments. I think I am right in saying that earlier he declared that he was not a car driver and loathed all motor-cars, so I am not in the least surprised that he adopts the attitude he does. I am sorry for him because if he is not a driver and has not enjoyed some of the hazards and pleasures of modern-day motoring he does not know what he is missing—five points or three.
Lord Houghton of Sowerby:My Lords, I am grateful to the noble Lord for giving way. This Bill is being made for motorists by motorists, and I happen not to be one of them.
Lord Lucas of Chilworth: My Lords, were it so, I am quite sure that all the noble Lords who are motorists would rewrite this particular schedule in very different terms; I believe that this Bill is not written for motorists by motorists. I believe it is a really genuine attempt, particularly in Part IV, after many years, to get to grips with some of the hazards and the dangers experienced on our roads. It is a road safety section, and I believe it goes quite a long way towards meeting a great number of the desires of those who do not motor as well as those who do. I am surprised again that expressions of support for this should have come from so many noble Lords. However, I do not want to make too much of an issue of it.
May I remind my noble and learned friend of paragraph 56 of the report of the inter-departmental working party, in which it is said:
"In the case of speeding offences it is a feature of several overseas systems to graduate the points values according to the amounts by which the limit is exceeded".
So some people have managed to find a formula to adopt this and apparently they do not find too much difficulty, because the departmental working party do not condemn that. They say further:
"We were, however, concerned that this could lead to an increase in the number of cases contested in court, for the purpose
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of reducing the award of points, which at present would be simply disposed of on a guilty plea".
I quite accept that about half the motoring offences which come before the courts—I understand it is about half the total number of offences that come before the courts—may take up a lot of time. I do not think that should greatly concern us. However, my noble and learned friend has said that there can be cases where a speeding offence is one which would not necessarily result in an endorsement and therefore would not involve any points. It is on that understanding, that there is this escape route in the system, that I am prepared to accept what he advises, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 23 [Provisional licences and driving tests]:
Lord Strathcarron Lord Strathcarron moved Amendment No. 19:
Page 17, line 34, at end insert—
("Provided that such regulations may be suspended if unexpected circumstances have unduly extended the waiting period for driving test appointments.").
The noble Lord said: My Lords, I should like to make it quite clear that I support the Government in their intention to stop provisional licence-holders riding motor-cycles for ever without taking a test and in many cases with no intention whatever of going for the test. I am not happy at all about a system whereby they should lose their licence for a year if they have not passed their test within two years, but I was encouraged at Committee stage to be told by Her Majesty's Government that the waiting list is now considerably less than it was and averages out at about three to four months, though it is longer in London; I hope that in London the time will be reduced. This lesser waiting time is a great advantage because it does mean that a motor-cyclist can have several attempts within the two years to pass his test. However, the noble Lord, Lord Monson, made a very good point at Committee, when he mentioned the effects of very bad weather, or even an epidemic of influenza, which would prevent the motor-cyclist taking his test within the time limit, and this would be grossly unjust. I hope that my noble friend will be able to give me an assurance that the Government will be flexible in their approach to this matter and perhaps extend the two years to a longer period. I beg to move.
Lord Bellwin: My Lords, I want to thank my noble friend for giving us the opportunity briefly to discuss further this important issue, and hopefully to reassure both your Lordships' House and motor-cyclists about our intentions. At present we have a situation where only a small minority, some 15 per cent., of learner motor-cyclists take a course of training, and far too many continue to ride indefinitely without taking a test. Everyone would agree that this is unsatisfactory. It is in stark contrast to the position of learner car drivers. Ninety-five per cent. of them take professional tuition and they are only too keen to pass their test. Their inducement to do so is the fact that they have to be accompanied.
It would not be practicable to make a similar pro-

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vision for learner motor-cyclists and we have therefore had to seek alternative means of achieving our objective. Those we have chosen are the two-part test, part I of which can be taken with an approved training organisation, and a limit on the duration of provisional licences. We believe that this should induce the great majority of riders to take training in the early part of their riding career when they are most vulnerable and to go on to pass their test within a reasonable space of time.
Worries have, however, been expressed that the present length of the test queues will mean that riders will not be given a fair chance to pass the test under the new system. We understand these fears not least because they have been so well expressed and endorsed by my noble friend. I should make it clear that we want riders to have a fair chance. It is simply not in our interest to take large numbers of riders off the road at the end of whatever period is set. If that were to happen, it would show a failure on our part as much as on that of the riders themselves. The aim of this provision is, I repeat, solely to encourage riders to take training and pass their test.
If we are to achieve this aim, the length of the period and the waiting time for the test will both be very important. The period must be short enough to give riders a sufficiently powerful incentive to pass the test. It must also be long enough to give them a fair chance to pass in the time available. At present we have a period of two years in mind: we thought it right to give everyone an indication of our thinking at this stage.
As my noble friend so rightly said, it is encouraging that the waiting period has been considerably reduced, as I said when I spoke on this matter previously. We are hoping that in this way we shall be able to bring an element of flexibility for the future, which we agree is highly desirable. We have that flexibility because the duration of the provisional licence will be specified in regulations. Those regulations need not be laid until late February or early March of next year. So we shall be able to defer a final decision on the duration of the licence until then, when we shall be able to take into account the length of the test queues at that time and the anticipated demand for motor-cycle tests. I entirely take the point that my noble friend makes that flexibility is very much a key to the whole matter, and in assuring him that we are so cognizant of that fact I hope that he will feel able to withdraw his amendment.
Lord Mottistone: My Lords, before my noble friend sits down, may I ask, having been approached since the Committee stage, whether I am right in thinking that it will be compulsory to pass two tests, or is it optional?
Lord Bellwin: My Lords, to the best of my knowledge I do not know that it will be necessary to pass two tests. There are two parts. It is a question of how you define what is one or two tests. You can have one test in two parts or you can call it two tests. If my noble friend would like details I shall be glad to see that he gets them.
Lord Strathcarron: My Lords, as regards the two-part test you would first have to get a certificate for having passed the initial training and then you would have to take that certificate along to get your major test. So in actual fact it is two tests.
Lord Monson: My Lords, if I may say so, the noble Lord, Lord Bellwin, seems to be dismissing the amendment of the noble Lord, Lord Strathcarron, a little too readily. I do not see what harm it could do for the Government to accept the amendment. It imposes no obligations on the Minister. It is merely permissive; it is not mandatory. It is a stop-gap, a safeguard if you like. Will the Government not consider accepting it? I do not see how it could possibly harm the basic intentions behind this part of the Bill.
Lord Bellwin: My Lords, with the leave of the House, may I say that I do not think that there is a necessity for the amendment. My noble friend Lord Strathcarron is so eminent a person in this field and so knowledgeable. I know that he has discussed this matter with colleagues. We hope that he is satisfied on this point. He represents very much the interests of motor-cyclists and motor-cycling and in many ways he is one of our bench marks. He will probably be pleased to know that that is so. But it is right that it should be so. I do not think that I ought to go further on this point. If my noble friend Lord Strathcarron wishes to comment further, I should be glad to hear his comment. But I think we have it fairly right at this stage.
Lord Strathcarron: My Lords, I am very grateful to my noble friend for the assurance that he has given that there will, as necessary, be a degree of flexibility in the time period. Therefore, I am pleased to beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
10.15 p.m.
Lord Underhill Lord Underhill moved Amendment No. 20:
Page 19, line 19, at end insert ("but no such regulations shall be made until the Secretary of State has received reports from all relevant local authorities estimating the number of learner motorcyclists who require training in their areas and listing the facilities made available, including training and testing sites, examiners and instructors, in accordance with their road safety and training obligations under section 8 of the Road Traffic Act 1974.").
The noble Lord said: My Lords, at the Committee stage I tabled what I said was a probing amendment to make provision for compulsory training before a motor-cyclist was able to take a cycle on the road. I put that amendment forward in Committee in order to ascertain from the Government precisely what were the details for facilities and for finances. I must say that the reply from the Minister was disappointing in those respects.
Since the debate the noble Lord, Lord Skelmersdale, who spoke on this matter in Committee, has kindly sent me a copy of a letter, which he has sent to other noble Lords, and again he has expressed the view that the Government are putting their faith in the two-part test being an inducement for riders to proceed to take the test within a reasonable time. In his letter, the noble Lord said:

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"We must first ensure that adequate training and testing facilities are readily available across the country".
But he added:
"We see no reason for increasing public expenditure by either central or local government. We expect the system to be entirely self-supporting".
I am certain that all noble Lords agree that one of our first considerations is not so much the training of someone who has been riding a bike for a year, but the training of the novice who will be taking a motorcycle on the road for the first time.
Since the Committee stage, I have been given some information about facilities that have been available in Scotland. I am informed that in Scotland, the motor-cycle trade prepared a scheme for training in schools and at centres. This scheme penetrated literally every area of Scotland with training facilities for the novices, and it is surely the novice with whom we are concerned. Mr. Graham Chatham, who has given me leave to mention his name, tells me that his own company has decided on the policy of: No training, no bike; and there has been excellent co-operation from the police in making an analysis of training that has been carried out.
They have carried out an analysis for every trained rider, and in Lothian in 1979 nearly 10 per cent. of all motor-cyclists were involved in a fatal accident or a serious injury that was reported to the police. But in the case of novices, in the first few months of that year 20 per cent. were involved. Of the trained sample of novices, the figure was reduced to 4 per cent. So it was 20 per cent. for all novices and 4 per cent. for those who were trained. I am told that the 1980 figures are almost identical. It was a sample of 1,500, and therefore this cannot be ignored.
I am also informed that the novices trained in 1979 have been followed through into 1980 to see what has happened to them. In the first 10 months of 1980, which have been analysed, only 3½ per cent. of the novices trained as riders in 1979 have been involved in a serious accident. These figures must be available to the department and they are illuminating. They show what happens when there is training for novices, and it is surely the novices about whom we are worried.
In this amendment we are asking—again in the form of a probe—that the Government should not try to go through with the scheme unless they know exactly what training facilities will be available, and unless they know exactly what the call upon them will be for training. Merely to talk of exhortations and inducements is not sufficient. The figures that I have quoted—and I am certain that they are correct because they have the full confirmation of the Lothian police—are surely illuminating.
We are concerned with the first-time novice who takes a motor-cycle on the road, and that there is nothing in the Government's scheme that gives any encouragement about what is going to be achieved. I hope that the amendment will be supported because it is asking that no regulations should go ahead unless we have all the relevant information of facilities, finance, instructors, training centres, and so on. I beg to move.
Lord Strathcarron: My Lords, this training aspect is of the utmost importance, and it is essential that the training facilities are a ailable at the start. This
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affects the two-year period, because if a novice is unable to take his initial training that would come out of his two-year period. That would be to his disadvantage. I hope that my noble friend will be able to tell me that again this will come under the flexible approach to the matter; obviously if the training schemes are not available then you would have to delay the scheme.
Lord Bellwin: My Lords, my noble friend hits it on the head. Of course it would be wrong to bring in the regulations prescribing the new two part motor-cycle test until we were satisfied that the sufficient training facilities for learner riders were available, together with training bodies authorised to conduct the "Part I" tests on their trainees. My right honourable and honourable friends have no intention of allowing their motor-cycle safety proposals in this Bill to fail because of inadequate facilities. They have proposed introducing the new motor-cycle test on 1st January 1982 because of the urgency they attach to acting to deal with the frightening level of motor-cycle accidents. But they will not bring in the new test until the necessary facilities are available.
The department are in the process of finding out what facilities are and will be available. They are consulting the training and other bodies concerned. They are approaching individual local authorities about the resources which they can and will deploy, bearing in mind their statutory duties in the field of road safety. I entirely take the points that the noble Lord, Lord Underhill, made, but I hope that in view of these reassurances the noble Lord will not press his amendment. We are very sensitive to the concern which lies behind it, and I hope that be will take my assurances on the proposals that we have.
Lord Underhill: My Lords, I readily accept the assurance of the noble Lord as regards the preparations that the department and the Government are making. It still does not deal with the important question of the first time novice. I hope we may have serious consideration from the Government on this issue, and that these consultations will include the experiment in Scotland, particularly in Lothian. These figures are so illuminating—and I am sure they are correct—and they show the necessity for something more to be done on the first time novice. My Lords, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 25 [New provisions as to offences relating to alcohol and drugs]:
10.23 p.m.
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 21:
Page 20, line 11, at end insert—
("(6) For the purpose of arresting a person under the power conferred by subsection (5) above a constable may enter (if need be by force) any place where that person is or where the constable, with reasonable cause, suspects him to be.
(7) Subsection (6) above does not extend to Scotland and nothing in that subsection shall affect any rule of law in Scotland concerning the right of a constable to enter any premises for any purpose.").
The noble and learned Lord said: My Lords, in moving this amendment I should like also to refer to Amendments Nos. 24 and 28 with which it is related. The purpose of these amendments, taken together, is to deal with the difficult question of whether, and if so to what extent, power should be given to the police to enter private property in order to exercise their powers under the law related to drinking and driving. We discussed this law so far as England and Wales were concerned at some length at Committee stage. I should like now to take the discussion forward from where we left it at Committee stage. The Government have carefully considered the situation, and I should like to express our gratitude for the very full consideration that noble Lords in the Committee stage gave to this matter, and the constructive speeches to which we were treated then.
As I informed the Committee at that time, the Government had provisionally come to the view that a driver's rights should be based on the concept of the home rather than that of trespass. This was because we recognised the special significance which is very widely attached to freedom from intrusion into one's own home, and agreed that there would not be nearly so much support for the view that drivers should be able to seek refuge in other property they might own, such as a shop or office.
However, on further examination we have found that the concept of protecting a motorist in his home produces its own serious problems. If the police are not to enter a person's home to breath test him, should they be able to enter the home of a friend to which he may have gone? If so, then it is surely illogical to allow entry, by force if need be, to the home of an entirely innocent person while denying it to the home of the suspect. If not, then the opportunity for seeking sanctuary is vastly increased.
The view of the Government now is—and as I say, the speeches of noble Lords in Committee have been very helpful in reaching this view—that it is indeed unsatisfactory to allow the present state of the law to be perpetuated and that a power of entry for the police is therefore required, but that such a power is not to be given lightly. The power to require a breath test is a very wide one and does not depend on the constable suspecting that any offence has been committed; he may do it, for example, simply on the suspicion that the driver has alcohol, however little, in his body. And, in the case of a requirement made after a moving traffic offence, although there clearly has to be an offence, it can be a very minor one, which would not itself justify entry onto private property.
The criterion, therefore, in our view, should be not the nature of the property in respect of which the power of entry should be given, but rather the gravity of the suspicion to which the driver's behaviour has given rise. So in these amendments we propose that the police should be empowered to enter any place, whether or not it is the driver's home, and by force if need be, but only in clearly specified circumstances. These would be that they have reasonable grounds to suspect either that a person in that place not merely had alcohol in his body, but had consumed so much alcohol or drugs that his conduct was an offence under Section 5 of the 1972 Act—that is, the offence of
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driving or being in charge while unfit to drive through drink or drugs—or, alternatively, that he had been involved in an accident in which someone else had suffered injury.
In this way, the power of entry will be confined, and in our view properly confined, to those cases in which the grounds for suspicion are so serious as fully to justify, in the general public interest, the exceptional step of allowing the police to enter a person's property against his will. Of course, a person arrested on suspicion of the Section 5 offence would be required to provide an evidential specimen at the police station and could be charged under either Section 5 or Section 6, according to the evidence.
I trust that noble Lords will feel that this solution represents a proper balance of the interests of the public and the individual on this difficult subject and will approve the amendment. Your Lordships will see that we have drawn on the ideas that were expressed in Committee and have tried to bring them together. I should say that if the amendments to which I referred are accepted, then the alternative suggestions in the names of the noble Baroness, Lady Stedman, and the noble Lord, Lord Underhill, and the amendment to that proposed by the noble Lord, Lord Monson, would not be appropriate but, as I said, we have tried to take account of those in formulating our point of view. The criterion of "accident" which the noble Lord, Lord Underhill, suggested, and which is modified in the amendment in the name of the noble Lord, Lord Monson, is in fact adopted in our proposal by reference to an accident which has caused personal injury to someone other than the driver.
Lord Mottistone: My Lords, the noble Lady, Lady Saltoun, has asked me to speak on her behalf, as she is unable to be here today. She wrote on 30th June to my noble and learned friend the Lord Advocate. I do not know whether he has had an opportunity to see her letter, but the substance of it—and it involved a question—was that she was satisfied that it was in effect bringing the law of England and Wales into line with the law of Scotland on the principle of entry by the police under certain circumstances.
The noble Lady goes on to say:
"However I am a little concerned as to the position should a constable forcibly enter premises which turned out to be the wrong premises, and I think this could happen accidentally at night in particular where he pursued a car to a street of houses and was not certain as to which house his quarry had entered, and forcibly entered the wrong house, which might be temporarily unoccupied".
The noble Lady concludes by asking:
"Would the police be liable for damage?"
I think that it is an important point and if it is possible for my noble and learned friend to answer it now, well and good, but otherwise perhaps I may say on behalf of the noble Lady, Lady Saltoun, that she would be very keen to have an answer to the question.
Lord Underhill: My Lords, I very much appreciate the consideration which the noble and learned Lord the Lord Advocate has given to the discussions at the Committee stage, and from the three amendments which we have tabled it is fairly clear that the consideration has been very detailed. I am still very concerned about a point that was emphasised at the

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Committee stage and which the Government Ministers not only in this House but in the other place emphasised; namely, that the last thing that anybody would want would be that a constable, thinking that someone had been involved in an accident, should chase him to his home and immediately insist on breathalysing him. Now, under this amendment not only can the constable chase the man to his home but he can forcibly enter it. I am certain that this is a point which the Ministers have considered in depth, but there is a complete change here from the view-points expressed not only in this House, but also in the other place; I shall not weary the House by going into the speeches that were made.
I was hoping that in the consideration of this matter the noble and learned Lord the Lord Advocate might have been able to follow the line that he had mentioned, in order to achieve a balance between doing the right thing where a person is involved in drinking and driving and at the same time preserving the position regarding a person's home and the right of forcible entry by the police; and I am still very worried about that aspect.
Lord Monson: My Lords, I am very grateful to the noble and learned Lord and to the Government for the consideration that they have given to this matter. I felt that the Bill as originally drafted was a little too lax. On the other hand, though sympathising with the amendment of the noble Lord, Lord Underhill, I felt that it was a little strong, bearing in mind that we must be extremely careful about giving the police the right to force entry into a person's home. As I understand it, the amendment of the noble Lord, Lord Underhill, as originally drafted, would have covered all accidents, including damage caused to a person's own car, for instance, by his hitting his gatepost, scraping the side of the car as he went into his own drive. That is why I drafted an amendment to the amendment.
While the Government's amendment refers to injury to a person or persons, it says nothing about damage to other people's property. What happens where a man, who has had too much to drink, drives down an entire road of parked cars, hitting each one, as often happens? There might be up to £100 worth of damage caused to six, seven or eight cars. This is quite a grave matter, and I wonder whether it ought to be taken into consideration, bearing in mind that people are likely to lose their no claims bonuses and be put to a vast amount of trouble and inconvenience.
Lord Lucas of Chilworth: My Lords, I am sorry to have to tell my noble and learned friend that I do not like what he has come up with. I think that he has gone too far. One would be tempted to recall what the noble Lord, Lord Houghton of Sowerby, said about being fastidious in trying to define this point too carefully. On the other hand, I do not think that we have defined it at all, since, if I understand my noble and learned friend correctly, we have now moved away from the particular place of sanctuary, because we cannot define it properly, and we have moved to the gravity of the suspicion. I do not think that that is quite good enough. I do not think that we can allow policemen to barge into people's homes, if necessary
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by force, because they have a grave suspicion that an offence might have been committed. I think he has got to have something more than suspicion before he goes barging into houses. I think that an accident, an injury, an offence of a serious nature, has got to have been committed, and observed by the police to have been committed, before he can go chasing people. In no way do I condone the behaviour of the man who ran away from the police to avoid being breathalysed, or whatever it was—the case that was widely reported.
I also recall that at the Committee stage my noble and learned friend said that the number of these cases was small, and it was the noble Lord, Lord Teviot, who asked, "What is small? Can you define it?" The noble and learned Lord said, no, he could not, but he thought it was perhaps 5 or 10 per cent. of cases; he thought that was small. If it is that small we need not go quite as far. I think that on balance I rather prefer the amendment in the name of the noble Lord, Lord Underhill, which goes some way towards meeting the requirement.
One might now say to my noble and learned friend, whether it is Lord Underhill's amendment or the Government's amendment: So the policeman gains entry. Goodness me! What is he going to do then? It is absolutely too easy for the alleged offender to have taken a glass of spirit while he was in that house while the policeman was attempting to gain entry, and the whole thing falls flat—or does it not? I do not know. I do not want to be mischievous, but those learned in the law will find all sorts of reasons for doing this, but those of us who have a more practical application can see a lot of difficulties. I must say that I am not too happy with what I have heard. I would much sooner have another look at this in the quiet light of day.
Lord Mackay of Clashfern: My Lords, so far as I understand the position, the amendment set down in the name of the noble Lord, Lord Underhill, goes further in permitting entry than the Government's amendment on the question of entry into a person's house, because Lord Underhill's amendment would allow it in the case of any accident, I think, that was properly described as an accident at all, whereas our amendment would restrict it to an accident—
Lord Underhill: My Lords, I am grateful to the noble and learned Lord for giving way. Frankly, I would have been only too happy to accept the amendment of the noble Lord, Lord Monson, to put that right.
Lord Mackay of Clashfern: My Lords, I am obliged to the noble Lord, but my noble friend Lord Lucas was referring to Lord Underhill's amendment, and I just wanted to explain the relationship, that our amendment requires, based on the accident point, that the accident should be one involving personal injury to another. So far as the question of the noble Lord, Lord Monson, is concerned, in the sort of case to which he has referred I would think that there was very likely reasonable cause to suspect that the person driving the car was guilty of an offence under subsection (5), and the first branch of our proposed amendment would apply to it.

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If I may go back to my noble friend Lord Lucas of Chtlworth, I think it is important to emphasise that it is "reasonable cause" for suspicion. In other words, there must be something more than just an idea in the policeman's head; there must be some circumstance to which the policeman can point which would entitle a reasonable person to suspect that the person concerned, the person who is being pursued, had been guilty of the offence in question.
As to my noble friend Lord Mottistone, speaking for Lady Saltoun, I think the situation is that so far as Scotland is concerned no change is being proposed because, as I said, it is in England and Wales that this problem has really arisen. The effect of the amendments is broadly to bring the two into line. I think in most circumstances to which the injury case applies the law of Scotland would also permit entry, but the way in which it is expressed in Scotland is much more flexible. It is a common law approach; and therefore I do not think it is quite right to say that they are absolutely in line in that respect.
So far as mistake is concerned, I think the answer to the question there would depend upon whether or not the mistake was a reasonable one. The constable, as far as our amendments are concerned for England and Wales, would be entitled to go into a particular house only if he had reasonable grounds to suspect that the person in question was in that house. I hope that that answers the questions.
On Question, amendment agreed to.
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 22:
Page 20, line 13, at end insert—
("(4) An offence under section 7(4) set out in Schedule 8 shall be included among the offences involving discretionary disqualification (within the meaning of Part III of the 1972 Act.").
The noble and learned Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Schedule 8 [Provisions substituted for ss. 6 to 12 of the Road Traffic Act 1972]:
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 23:
Page 69, line 36, at end insert ("the requirement is made under subsection (2) and").
The noble and learned Lord said: My Lords, this minor amendment corrects a small error in the Bill by which the power which the police now have to require a driver to provide a breath specimen at a police station after an accident is extended to other cases where a breath specimen can be required. The amendment restores the status quo. I beg to move.
On Question, amendment agreed to.
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 24:
Page 69, line 38, leave out from ("constable") to end of line 42.
On Question, amendment agreed to.
[Amendments Nos. 25 to 27 not moved.]
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 28:
Page 70, line 7, at end insert—
("(6) For the purpose of requiring a person to provide a specimen of breath under subsection (2) above in a case where he has reasonable cause to suspect that the accident involved injury to another person or of arresting him in such a case under subsection (5) above a constable may enter (if need be by force) any place where that person is or where the constable, with reasonable cause, suspects him to be.
(7) Subsection (6) above does not extend to Scotland and nothing in that subsection shall affect any rule of law in Scotland concerning the right of a constable to enter any premises for any purpose.").
The noble and learned Lord said: My Lords, I have already spoken to this amendment.
Lord Brougham and Vaux: My Lords, are we going on to the next amendment? It is a very important one and we might have to take some time on it.
Lord Denham: My Lords, I think it would be right to put the Question on Amendment No. 28 before deciding whether we go on from there.
On Question, amendment agreed to.
Lord Denham: My Lords, I think that the noble Lord, Lord Underhill, and my noble and learned friend, have indicated that the next amendment will take a bit of time. I must say that I am a little disappointed with the progress. I had very much hoped that we would get to Amendment No. 33 today, so that we could start on the mass of seat belt amendments first time round on Wednesday. But, in view of the lateness of the hour and in view of the fact that we are going to have to sit tomorrow, perhaps the noble Lord, Lord Ponsonby of Shulbrede, might agree with me that it would be a good thing to postpone further consideration for the moment.
Lord Brougham and Vaux: My Lords, I thank my noble friend for that.
Lord Ponsonby of Shulbrede: My Lords, the noble Lord the Chief Whip is quite right in thinking that we have reached the point in our consideration of this Bill at which it would be appropriate to terminate our proceedings. I am sorry that we have not got as far as the noble Lord had hoped, but we have endeavoured to move as quickly as possible this evening. There are a number of intricate and difficult points which your Lordships have had to consider. I am sure that it was right and proper that we should have taken the time necessary to consider the various amendments which have been before us this evening. I am certain that when we resume the Report stage of these proceedings on the Transport Bill next week we shall endeavour to make sufficient progress so that we shall be able to complete the Report stage of the Bill then. I entirely agree with the noble Lord the Chief Whip that this would be an appropriate time to adjourn the proceedings this evening.
Consideration on Report adjourned.

Northumbrian Water Authority Bill
Brought from the Commons, read 1a, and referred to the Examiners.
Matrimonial Homes (Family Protection) (Scotland) Bill [H.L.]
Returned from the Commons agreed to with amendments; the said amendments to be printed.
Greater London Council (General Powers) (No. 2) Bill
Returned from the Commons with the amendments agreed to.