Lords Sitting of 28 July 1981

Preamble
The House met at a quarter-past two of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Oxford): The LORD CHANCELLOR on the Woolsack.
Lord Marsh
The right honourable Sir Richard William Marsh, Knight, having been created Baron Marsh, of Mannington in the County of Wiltshire, for life—Was, in his robes, introduced between the Lord McFadzean and the Lord Harris of Greenwich, and made the solemn Affirmation.
Lord Constantine of Stanmore
Sir Theodore Constantine, Knight, CBE, AE, having been created Baron Constantine of Stanmore, of Stanmore in Greater London, for life—Was, in his robes, introduced between the Lord Chelmer and the Lord Fraser of Kilmorack.

Lords Chamber: Ceiling Repairs
2.35 p.m.
Baroness Sharples: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what progress has been made on the repairs to the ceiling of the Chamber of the House.
The Earl of Avon: My Lords, work on dismantling the carved woodwork is now in hand and will be completed during the Summer Recess. Known wood consolidation techniques are being reviewed, and wood carving requirements are being assessed. The overall timetable is going as planned.
Baroness Sharples: My Lords, while thanking my noble friend for that Answer, may I ask whether he is aware that, accompanied by Black Rod, I was able to inspect both floors above your Lordships' Chamber last week and was horrified to see the amount of damage that has taken place over the years, including the degrading of the wood on both levels? Is he further aware that in this country there are apparently only 15 carvers who are capable of repairing the woodwork that has been damaged?
The Earl of Avon: My Lords, I am grateful to the noble Baroness for her supplementary question. Yes, I was aware that she had indeed been above our heads and I congratulate her on her expertise. We also agree with the figure which she has given; namely, that there are about 15 to 20 carvers in the country available to do this kind of work.
Baroness Gaitskell: My Lords, I should like to ask the Minister whether we are safe in this House now, or is this part of a plot to abolish this House?
The Earl of Avon: My Lords, I share with the noble Baroness the feeling of safety with this ceiling above me. However, it is, I am sure, nothing to do with a plot to abolish this House.
Lord Underhill: My Lords, is it not correct that at the time of the original Statement reference was made to the possible necessity of inspecting other ceilings? If that is correct, have such inspections been carried out and what are the results?
The Earl of Avon: Yes, my Lords, that is indeed the case. The ceilings of the Robing Room, the Royal Gallery, the Prince's Chamber and the Peer's Lobby have been examined and been found to be in sound condition. The Peer's Lobby ceiling will be surveyed properly during the Summer Recess.
The Earl of Onslow: My Lords, is there no method of replacing carved wood with moulds of some other substance and using that instead of wood and making it look a perfect verisimilitude?
The Earl of Avon: My Lords, there are, indeed, other solutions available. We hope very much that they will not be necessary and, judging by the sounds from the Chamber, the Chamber agrees with me.
Viscount St. Davids: My Lords, is the noble Earl not aware—probably he is not—that I have a number of friends who are engaged in the exact occupation of making moulds for plastics to replace some of the woodwork in this House?
Lord Davis of Leek: My Lords, why not have a couple of gnomes!
The Earl of Avon: My Lords, I was not aware of the noble Viscount's attributes, but I am pleased to hear of them.
Baroness Trumpington: My Lords, when does my noble friend expect the work to be completed?
The Earl of Avon: My Lords, at the moment the timetable is for completion in 1984.

Nuclear War: Bunker Accommodation
2.40 p.m.
Lord Jenkins of Putney: 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 how many persons are to be provided with bunker accommodation in the event of nuclear war.
Lord Sandys: My Lords, a small number of those performing essential war-time operational duties would

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be located in protected accommodation. The main groups of operational staff would be: the United Kingdom warning and monitoring system organisation, amounting to 4,600 personnel approximately; the staff of the war-time regional government structure, amounting to 3,500 personnel altogether, and some armed forces personnel.
Lord Jenkins of Putney: My Lords, I thank the noble Lord for the informative nature of that reply. Further, can he say whether any provision is made for the families of people who are provided with bunker accommodation? Can he also say what, in the event of a nuclear war, is to happen to the rest of the population?
Lord Sandys: My Lords, I do not think that it would be proper for me to anticipate the reply regarding families to the noble Lord's four Questions for Written Answer which are set down in the Minutes of Proceedings. On the other part of the question, I think that the answer will also arise in the replies to those Questions for Written Answer.
Lord Paget of Northampton: My Lords, is not the problem of nuclear war not how to get into a bunker, but how to survive having got out of one?
Lord Sandys: My Lords, I think that the noble Lord, Lord Paget, is speculating on a situation and that the House can share with him some similar view.
Lord Beloff: My Lords, is it not a fact that a great deal of public money is being spent in answering these successive Questions from the noble Lord, Lord Jenkins of Putney, on a wholly hypothetical event which it is the intention of Her Majesty's Government to avoid? Is not the repetition of these Questions an abuse of the privileges of this House, and can they have any effect but to bring aid and comfort to our prospective enemies?
Lord Peart: My Lords, may I say that I believe—
Several noble Lords: Order, Order!
Lord Peart: My Lords, is not the noble Lord aware that such a question is really distasteful?
Lord Sandys: My Lords, in reply to my noble friend, may I say that it is never the intention of Her Majesty's Government to prevent any of your Lordships from putting down Questions, should your Lordships wish to do so. On the point about repetition, I think that this is a matter of judgment for the noble Lord who is putting down the Question and a matter for consideration by the Table Office.
Lord Brockway: My Lords, can the Minister clarify present plans for civil defence, which are now in confusion? Has the recommendation that we should all stay at home been withdrawn? Is it now accompanied by three proposals: deep shelters for the administrative staff, less deep shelters under large buildings, and shelters in gardens to protect against fall-out?
Lord Sandys: No, my Lords; I think that the noble Lord, Lord Brockway, should read again the Statement repeated in your Lordships' House on 7th August last year, which was a civil defence Statement. If he reads it carefully I think he will come to another conclusion. As regards the immediate arrangements, I can assure the noble Lord that a very careful study is being undertaken by the Home Office Working Group on Shelters, which deals with the matter on an inter-departmental basis. The examination is being done in conjunction with the Property Services Agency and local authorities. This is an extremely detailed survey of buildings, structures, underground tunnels, underground car parks, et cetera. This is thought to be by far the most cost-effective way of making use of our existing resources—by spending money on planning and carrying out a survey.
Lord Stewart of Fulham: My Lords, is it not the fact that the only country that has ever suffered from a nuclear attack is one that had no nuclear arms and no nuclear allies? Must we not hope that this country never gets itself into that position?
Lord Sandys: My Lords, that is quite correct.
Lord Jenkins of Putney: My Lords, will the noble Lord agree that although we might differ in the conclusions that we draw from the information, by the comprehensiveness of his answers he shows that he at least agrees with me that the information should be made available?
Lord Sandys: My Lords, so far as I know, I do not think that it has ever been the policy of the Home Office to conceal information. In fact, the reply given to a Question in another place was that much of this information is not secret.
Lord Harris of Greenwich: My Lords, will the noble Lord agree that a policy of unilateral nuclear disarmament would cause far greater risk to the safety of the people of this country than any of the risks which are set out in the Question which has been tabled today?
Lord Sandys: My Lords, I fully accept what the noble Lord, Lord Harris of Greenwich, has said. The policy of adopting the nuclear deterrent is one of first importance.

Internal Drainage Boards: Pollution Laws
3.46 p.m.
The Earl of Onslow: 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 internal drainage boards are subject to the laws on the pollution of waterways.
The Earl of Avon: Yes, my Lords, to the extent that waterways comprise streams, as defined in the Rivers (Prevention of Pollution) Act 1951 and that a polluting

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offence under Section 2 has been committed. Otherwise, in the exercise of their functions relating to land, any public body—under Section 11 of the Countryside Act 1968—shall have regard to the desirability of conserving the natural beauty and amenity of the countryside.
The Earl of Onslow: My Lords, is my noble friend aware that at Martham Broad in Norfolk the internal drainage board has released vast quantities of sulphuric acid and ferric oxide into the streams which has killed and blanketed the streams concerned? It is ichthyo-toxic, which means "fish poisoning". If I, as a farmer, had introduced half the quantity of silage effluent, I should have been prosecuted fairly quickly. Can my noble friend please say why the internal drainage board has not been prosecuted for this behaviour?
The Earl of Avon: My Lords, prosecutions under the Rivers (Prevention of Pollution) Acts 1951 to 1961 can only be undertaken by a water authority or with the consent of a water authority or the Attorney-General. The Anglian Water Authority does not regard this situation as constituting a pollution offence. Its view is that what is coming out of a pump is natural and is not, in the legal sense, pollution.
The Earl of Onslow: My Lords, I thank my noble friend for that reply, but is it not also true that a member of the public or of a conservation body could take a view that this was a writ of mandamus situation and could go to the High Court and ask the water authority to prosecute against what has been seen to be a very serious polluting action?
The Earl of Avon: My Lords, of course it would be up to individuals to do what they wish, but they must bear in mind my earlier reply.
Lord Melchett: My Lords, would the noble Earl agree that it is an extraordinary situation where an internal drainage board, which is responsible to, and indeed part of, the remit of a regional water authority, can only be taken to court—as the noble Earl has told us—under the prevention of pollution Acts by the regional water authority? Would the noble Earl look at that? It seems to be monstrous. Would he agree that it is symptomatic of the total lack of control that is exercised by anybody over the extremely damaging activities of some internal drainage boards?
The Earl of Avon: My Lords, I would not go as far as the noble Lord, Lord Melchett. But he will no doubt recall that there is a Part II of an Act, which has not been implemented since 1974, which in point of fact would amend this situation. Perhaps I could remind the House that at the moment the Wildlife and Countryside Bill—which we are all looking forward to being returned to this Chamber shortly—is being considered in another place, where there is an amendment which will require the IDBs as well as water authorities to consult the Nature Conservancy Council on any works which appear to them likely to be harmful to natural flora and fauna in sites of special scientific interest.
Lord Buxton of Alsa: My Lords, is my noble friend the Minister aware that the drainage to which my noble friend Lord Onslow referred has caused pollution, but was totally unknown and unpredicted by those involved? Would he therefore agree that, in order to avoid a similar mistake being made again, it is essential to have a public inquiry before the new scheme affecting the Halvergate marshes?
The Earl of Avon: My Lords, as I understand it, in the case of the Martham Broad it is hoped, as a result of local discussions with conservationists, to finance the extra cost of resiting a proposed pump which will by-pass the broad.
Lord Harmar-Nicholls: My Lords, has my noble friend given an indication that the Government intend to accept the amendment that he says is on the Marshalled List in another place?
The Earl of Avon: My Lords, it is my understanding that it is a Government amendment, so I think it will be accepted.
Lord Melchett: My Lords, will the noble Earl agree that it is not very much use putting an obligation on internal drainage boards to consult the Nature Conservancy Council if the boards know that they can only be prosecuted by, in effect, people who are their masters, and who are extremely unlikely to prosecute them? Can the noble Earl also say whether it is possible to challenge the Anglian Water Authority's decision that this pollution was not pollution when clearly to everyone else concerned it was?
The Earl of Avon: My Lords, so far as the amendment to the Wildlife and Countryside Bill is concerned, I look forward to debating it with the noble Lord when he comes back. So far as the remarks about the Anglian Water Authority are concerned, I shall indeed draw that to their attention.

Salmon Fisheries: Protection Measures
2.52 p.m.
Lord Chelwood: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what are the four main recommendations made jointly by the Atlantic Salmon Trust and the Salmon and Trout Association to improve the country's salmon fisheries by countering the serious threats to the Atlantic salmon and what reply they have sent to their request for a fully representative meeting to discuss the urgent need to revise present legislation.
The Minister of State, Ministry of Agriculture, Fisheries and Food (Earl Ferrers): My Lords, the Atlantic Salmon Trust and the Salmon and Trout Association have written to officials recommending changes in the law relating to the use of drift nets and monofilament nets, to the sale of salmon, and to rod

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licences and catch returns. This approach was made at the same time as the Government issued a consultation paper, entitled the Review of Inland and Coastal Fisheries in England and Wales. The Government will be glad to receive the views of the Trust and the Association on the matters covered in the consultation paper, which include most of the matters which were raised by the two bodies. Further consultation will then take place as necessary.
Lord Chelwood: My Lords, I am grateful for that reply. In spite of its friendly nature, is there not a risk that action to curb large-scale illegal netting by professional gangs, to which reference is made in paragraph 17 of the consultation paper—the magnitude of it is referred to there—may be held up for years, as indeed was Government action arising out of the Bledisloe and Hunter reports, while other discussions are going on about the other major matters raised in the consultation paper? Do the Government intend to legislate as soon as they possibly can—which would in fact mean the 1982–1983 Session; it would not be possible before then—to remove the ridiculous anomalies which have arisen where salmon legislation is concerned, before irreparable damage is done to the legitimate interests of professional commercial netsmen and to the interests of rodsmen as well?
Earl Ferrers: My Lords, I accept my noble friend's consternation about poaching. I only hope that the consultations we have will not result in, as he put it, years of delay. The main thing is that we want to get it right, and that is the reason why we propose to have consultations. Secondly, where administrative action can be taken—and sometimes it can be—we wish to take it as soon as possible after those consultations have taken place. The third point is legislation. That is bound to be more lengthy and will have to fit into the legislative timetable.
Lord Balfour of Inchrye: My Lords, is the Minister aware of the real urgency for comprehensive legislation for the preservation of Atlantic salmon, which are in great danger, not only from the points made by the Atlantic Trust but internationally and nationally? Atlantic salmon may well be extinct in a few years unless the Government take urgent steps in the not distant future.
Earl Ferrers: My Lords, I entirely accept my noble friend's anxiety over this matter. What I would tell him is that the consultation paper was issued, I think, on 8th July. Consultations have been allowed up to 30th October, which is a fairly brief period of time, and thereafter advice will be given to Ministers as to how best and how most appropriately to act.

Business
Lord Denham: My Lords, it may be for the convenience of your Lordships if I announce that dinner will be available at the usual time this evening.
At a convenient moment after 3.30 this afternoon my noble friend Lord Bellwin will, with the leave of the House, repeat a Statement that is to be made in another
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place on Local Government Audit in England and Wales.

Consolidated Fund (Appropriation) Bill
The Minister of State, Treasury (Lord Cockfield): My Lords, I beg to move that this Bill be now read a second time.
Moved, That the Bill be now read 2a.—(Lord Cockfield.)
On Question, Bill read 2a: Committee negatived.
Then, Standing Order No. 43 having been suspended (pursuant to Resolution of 21st July): Bill read 3a, and passed.

Ullapool Pier Order Confirmation Bill
Considered on report.

Supreme Court Bill [H.L.]
2.56 p.m.
The Lord Chancellor (Lord Hailsham of Saint Marylebone): My Lords, in rising to move that the Commons amendments be now considered I trust the House will permit me to draw attention to the loss which we have all received in the death yesterday of my noble and learned friend Lord Widgery. Only last week he was with us sitting on the Cross-Benches. Only the day before yesterday he was noticed by a neighbour sitting in his garden quietly enjoying its peace and beauty. I had hoped myself that his retirement last year after a heroic struggle with an incurable and progressive and crippling illness would be the prelude to a long and happy retirement in the company of his much loved wife.
John Widgery was a wise, brave, strong, patriotic, compassionate, and above all a profoundly humble man; an ornament to the law; a model of acquired skill and innate talent in the judicial art; a great public servant; an active member of his church; and above all a gentle and affectionate friend. We shall all miss him very much, and our hearts will be with his wife in the sorrow of her bereavement.
My Lords, I beg to move.
Moved, That the Commons amendments be now considered—(The Lord Chancellor.)
Lord Elwyn-Jones: My Lords, the House will be grateful to the noble and learned Lord the Lord Chancellor for the tribute that he has rightly paid to the noble and learned Lord, Lord Widgery. He graced the Bench as Lord Chief Justice, as a Lord Justice of Appeal, and High Court judge with the qualities in high degree of fairness, integrity, courtesy, economy and clarity of expression, and above all of sound common sense. The administration of justice in our country owes a very great deal to him. He was indeed, as the noble and learned Lord the Lord Chancellor has said, a great public servant. I owed much to him myself when I was in office. He was sustained in all

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he did by his devoted wife Ann, to whom we send our sympathy at this sad time.
Lord Byers: My Lords, the two noble and learned Lords who have just spoken knew the noble and learned Lord, Lord Widgery, far better than I did, although on many occasions when I met him I must say that I was deeply indebted to him for the friendship which he showed to me. We on these Benches would like to associate ourselves with the very sincere tributes just paid to a very distinguished Lord Chief Justice, in particular for the part that he played in the reorganisation of the court system after the Beeching Report. We send our condolences and our sympathy to Lady Widgery.
The Lord Chancellor: My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Commons amendments to the Supreme Court Bill, has consented to place Her Prerogative and interest, so far as they are affected by them, at the disposal of Parliament.
On Question, Motion agreed to.
[The references are to Bill [116] as first printed for the Commons].

COMMONS AMENDMENT
1 Clause 18, page 13, line 4, at end insert "which are by law left to the discretion of the court or tribunal."
The Lord Chancellor: My Lords, in all this long series of amendments I shall be moving the same Motion, but I hope to group them in a convenient form. The Motion which I beg to move on this amendment, which will be the same in every case, is that this House doth agree with the Commons in their Amendment No. 1. In speaking to that amendment, I shall, with permission, speak at the same time to Amendment No. 12, No. 1 being the paving amendment to that one, which will be a new clause to follow Clause 144.
When the Bill was first before your Lordships it was pointed out that under the present law a solicitor could not appeal from an order made against him personally by the Crown Court. The noble Lord, Lord Mishcon, moved an amendment to give jurisdiction to the civil division of the Court of Appeal to hear such an appeal by a solicitor. I accepted, it will be remembered, that there was a gap in the law here which should be filled, and accordingly, following consultations with the Law Society, the Government moved these amendments into the Bill in another place. The new clause confers a right of appeal in respect of any exercise of the court's inherent jurisdiction, not simply its jurisdiction to make an order relating to the payment of costs by a solicitor. This will have the result that the same provisions will operate throughout the Supreme Court. It will also enable the Court of Appeal to regulate any purported exercise of the inherent jurisdiction by the lower court so as to ensure that it is not used in cases in which it would be more appropriate to invoke the disciplinary process of the profession. The change is made by way of a textual amendment to Section 50 of the Solicitors Act 1974, since it is subsection (2)
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of that section that confers the relevant jurisdiction on the High Court and the Crown Court.
Amendment No. I also deals with a point which came to light while the new clause was being prepared. The words it would add to Clause 18(1)(f) of the Bill can be found in its predecessor, Section 31(1)(h) of the Act of 1925, originally from the Judicature Act of 1873, but they were omitted from Clause 18(1)(f) because it was thought at the time of drafting that they served no useful purpose. It now appears that they might do so. There is authority for the proposition that an order against a solicitor personally to pay costs is not an order
"relating only to costs which are by law left to the discretion of the court"
because it has been held that an order can be made against a solicitor only if he has in fact been guilty of some misconduct or negligence; it cannot, therefore, be said that such an order is entirely within the discretion of the court. Without these words, Clause 18(1)(f) would in future catch such appeals and therefore impose a requirement of leave to appeal. With the words reinstated, such appeals would fall outside that paragraph and there would accordingly continue to be an unfettered right of appeal.
Moved, That this House doth agree with the Commons in the said amendment.—(The Lord Chancellor.)
Lord Elwyn-Jones: My Lords, the amendments to which the noble and learned Lord has spoken would seem to be helpful and practicable, and what finally fell from the lips of the Lord Chancellor will, I am sure, give satisfaction to solicitors in general.
On Question, Motion agreed to.

COMMONS AMENDMENT
2 Clause 20, page 15, line 32, at end insert "(including any sum allotted out of wages or adjudged by a superintendent to be due by way of wages);".
3.5 p.m.
The Lord Chancellor: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 2, and I propose to speak at the same time to a large group of amendments as follows: Nos. 2, 5A, 7, 13, 17 to 19 inclusive, 23 to 27, 33A, 36, 39, 40, 43, 45 to 51 inclusive, 55 to 57 inclusive, 60, 63 to 70 inclusive, 73 to 77 inclusive and 79. These amendments are not all actually linked together but they are all minor or drafting amendments relating to county courts, many of which are made with a view to facilitating the forthcoming consolidation of the County Courts Act. The group also contains other amendments of a purely drafting character and since I doubt whether the House will wish to take up much time discussing any of them, I do not propose to speak again to any of them; but if any noble Lord would like a more detailed explanation of any of them, either in the time of the House or privately, I shall be happy, so far as I can, to provide it.
Moved, That this House doth agree with the Commons in the said amendment.—(The Lord Chancellor.)
Lord Elwyn-Jones: My Lords, I respectfully agree

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with the course which the noble and learned Lord has proposed. I apprehend that this is a day when much, perhaps not totally necessary, detail expressed over a great length of time would not be entirely welcome to the House. As the amendments are matters without controversy and are largely matters of drafting, as the noble and learned Lord said—and when he says that something is a mere matter of drafting, of course I accept that fully from him; I am sure he would alert us if any point of principle, discord or potential controversy arose—I agree to the course that has been proposed.
On Question, Motion agreed to.

COMMONS AMENDMENT
3 Clause 21, page 17, line 13, leave out subsection (3).
The Lord Chancellor: My Lords, I propose, with the leave of the House, to group together Amendments Nos. 3, 4 and 5 and 20, 21 and 22. I beg to move that this House doth agree with the Commons in their Amendment No. 3.
This group of amendments, which I think I should explain in a little more detail, is designed to restore the provisions of the Bill relating to rights of action in rem in admiralty cases to the same position as at present under the Administration of Justice Act 1956, but with a change in relation to ships which are the subject of a charter by demise. On Report in your Lordships' House, my noble and learned friend Lord Diplock expressed some concern at the breadth of the changes which it then made in the rules giving rights to plaintiffs to start actions in rem. I undertook to look again at the question in consultation with the interests concerned. As a result of those, I decided it would be better, with one minor exception, not to proceed with these changes for the time being, and accordingly these amendments were moved by the Government in another place to restore the status quo, with the exception that charterers by demise are placed on the same footing as owners for the purposes of the commencement of actions in rem. Those who have been consulted, I understand, agree that this is a small but useful improvement.
Moved, That this House doth agree with the Commons in the said amendment.—(The Lord Chancellor.)
Lord Elwyn-Jones: My Lords, those who are dealing with these matters were, with respect, well advised to accept the advice of the noble and learned Lord, Lord Diplock, who is probably the finest world authority on charter parties and kindred matters, and I would certainly not quarrel with him, or indeed with the noble and learned Lord the Lord Chancellor.
The Lord Chancellor: I hope none of us will quarrel with each other this afternoon, my Lords.
On Question, Motion agreed to.

COMMONS AMENDMENT
4 Clause 21, page 17, line 23, leave out "not covered by subsection (2) or (3)".
The Lord Chancellor: My Lords, Amendment No. 4 is consequential. I beg to move that the House doth agree with the Commons in their Amendment No. 4.
Moved, That this House doth agree with the Commons in the said amendment.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
5 Clause 21, page 17, line 27, leave out subsection (5) and insert—
"(5) In the case of any such claim as is mentioned in section 20(2)(e) to (r), where—

(a) the claim arises in connection with a ship; and

(b) the person who would be liable on the claim in an action in personam ("the relevant person") was, when the cause of action arose, the owner or charterer of, or in possession or in control of, the ship,

an action in rem may (whether or not the claim gives rise to a maritime lien on that ship) be brought in the High Court against—

(i) that ship, if at the time when the action is brought the relevant person is either the beneficial owner of that ship as respects all the shares in it or the charterer of it under a charter by demise; or

(ii) any other ship of which, at the time when the action is brought, the relevant person is the beneficial owner as respects all the shares in it.".

3.11 p.m.
The Lord Chancellor: My Lords, I beg to move that the House doth agree with the Commons in their Amendment No. 5.
Moved, That this House doth agree with the Commons in the said amendment.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
5A Clause 21, page 17, line 40, leave out subsection (7).
The Lord Chancellor: My Lords, this amendment is consequential. I beg to move that the House doth agree with the Commons in their Amendment No. 5A.
Moved, That this House doth agree with the Commons in the said amendment.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
6 Leave out Clause 40 and insert the following new clause:"
"Attachment of debts
.—(1) Subject to any order for the time being in force under subsection (4), this section applies to the following accounts, namely—

(a) any deposit account with a bank or other deposit-taking institution; and

(b) any withdrawable share account with any deposit-taking institution.

(2) In determining whether, for the purposes of the jurisdiction of the High Court to attach debts for the purpose of satisfying judgments or orders for the payment of money, a sum standing to the credit of a person in an account to which this section applies is a sum due or accruing to that person and, as such, attachable in accordance with rules of court, any condition mentioned in subsection (3) which applies to the account shall be disregarded.
(3) Those conditions are—

(a) any condition that notice is required before any money or share is withdrawn;

(b) any condition that a personal application must be made before any money or share is withdrawn;

(c) any condition that a deposit book or share-account book must be produced before any money

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or share is withdrawn; or

(d) any other prescribed condition.

(4) The Lord Chancellor may by order make such provision as he thinks fit, by way of amendment of this section or otherwise, for all or any of the following purposes, namely—

(a) including in, or excluding from, the accounts to which this section applies accounts of any description specified in the order;

(b) excluding from the accounts to which this section applies all accounts with any particular deposit-taking institution so specified or with any deposit-taking institution of a description so specified.

(5) Any order under subsection (4) shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
(6) In this section, "deposit-taking institution" means any person carrying on a business which is a deposit-taking business for the purposes of the Banking Act 1979..".
The Lord Chancellor: My Lords, I beg to move that the House doth agree with the Commons in their Amendment No. 6, and with this amendment I take Amendments Nos. 11, 42, 53, 71 and 72. I told the House at the Report stage that amendments to enlarge the scope of attachment of debt were in contemplation and that consultations were then entering a final phase. Happily the consultations were concluded in time for these amendments to be moved in another place, and the result is that the net by which a creditor may attach or "garnish" the money owed to his debtor may be more widely cast, so as to include all kinds of savings held by all kinds of deposit-taking institutions. The bigger fish which would be brought within the net by these amendments would include building societies, the Trustee Savings Bank and the National Savings Bank. I understand that no voice has been raised outside against the proposals and many voices have been heard in favour. Rules of court will be needed, but consultations on these have already begun. My Lords, I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(The Lord Chancellor.)
Lord Elwyn-Jones: My Lords, I doubt whether the big fish referred to will be very pleased with these amendments, but it seems equitable that they, too, should be caught in the net.
On Question, Motion agreed to.

COMMONS AMENDMENT
7 Clause 55, page 40, line 16, leave out from ""court" "to "means" in line 17.
The Lord Chancellor: My Lords, this amendment is consequential on Amendment No. 2. I beg to move that the House doth agree with the Commons in their Amendment No. 7.
Moved, That this House doth agree with the Commons in the said amendment.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
8 Clause 69, page 47, line 4, leave out from "jury;" to end of line 6.
The Lord Chancellor: My Lords, your Lordships
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will remember that in this House we passed an amendment at the suggestion of the Lord Chief Justice, supported by the noble and learned Lord, Lord Roskill, to the effect that the Moonie-type libel and slander cases should be exempt from the rule requiring a compulsory jury if either party demanded it. The amendment was strongly attacked in the House of Commons, and I am bound to say that I remain very much of the same opinion as I previously held in the House. But there are times when one is wise to retreat before the troglodytes, reactionaries and pterodactyls, and the other strange creatures in the undergrowth who oppose law reform, and I now propose to take this cautious approach, hoping perhaps to fight another day.
The effect will be that the length of trials in such cases will be doubled. The juries for trials of this length will no longer be random because almost everybody will be excluded from them owing to the fact that everybody who ought to be a juror is excused; namely, full-time workers, shopkeepers and the others at the heart of the jury system. Of course there will be a very adverse effect on the actual transaction of business in the courts, owing to the increased length of trial and to the fact that there are a number of people in prison who ought to be tried sooner by a red judge than will now be possible, or who are on bail and will have to undergo even longer delays. But as I say, discretion is the better part of valour, and to some extent I have got rid of some of the worst evils through the good offices of the Lord Chief Justice, who has made a practice direction—which he is fully entitled to make—which will do something to remedy the evils that the troglodytes have perpetuated. My Lords, I beg to move that the House doth agree with the Commons in their Amendment No. 8.
Moved, That this House doth agree with the Commons in the said amendment.—(The Lord Chancellor.)
Lord Elwyn-Jones: My Lords, seldom can such a proposal have been moved from the Woolsack with such total lack of conviction and enthusiasm. I have little doubt that had we enough time and the matter was of sufficient significance, we might invite Parliament to have a second look at it. But regardless of whether I come within the category of troglodyte, pterodactyl, or whatever other heraldic or other animal that came into the vivid imagination of the noble and learned Lord the Lord Chancellor, I think we had better bow before what strength and quality this storm has.
The Lord Chancellor: My Lords, I am grateful to the noble and learned Lord, and I shall kiss the rod on behalf of the House and other progressive characters in it.
On Question, Motion agreed to.

COMMONS AMENDMENT
9 Clause 69, page 47, line 9, leave out from "Division" to "be" in line 10 and insert "which does not by virtue of subsection (1) fall to be tried with a jury shall".
The Lord Chancellor: My Lords, I ought to take Amendments Nos. 9, 35 and 62 together. I therefore rise to move that the House doth agree with the Commons in their Amendment No. 9. This amend

663
ment alters Clause 69 so as to make it clear that the discretion to order a jury is exercisable in the subsection (1) "proviso" cases (that is where the prolonged examination of documents is involved), as well as in cases which are outside subsection (1) altogether. Amendments Nos. 35 and 62 do the same for the county courts by inserting a new provision in Section 94 of the County Courts Act 1959, in place of the existing subsections (3) and (4). My Lords, I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
10 After Clause 71, insert the following new clause:
"Withdrawal of privilege against incrimination of self or spouse in certain proceedings Other provisions
(1) In any proceedings to which this subsection applies a person shall not be excused, by reason that to do so would tend to expose that person, or his or her spouse, to proceedings for a related offence or for the recovery of a related penalty—

(a) from answering any question put to that person in the first-mentioned proceedings; or

(b) from complying with any order made in those proceedings.

(2) Subsection (1) applies to the following civil proceedings in the High Court, namely—

(a) proceedings for infringement of rights pertaining to any intellectual property or for passing off;

(b) proceedings brought to obtain disclosure of information relating to any infringement of such rights or to any passing off; and

(c) proceedings brought to prevent any apprehended infringement of such rights or any apprehended passing off.

(3) Subject to subsection (4), no statement or admission made by a person—

(a) in answering a question put to him in any proceedings to which subsection (1) applies; or

(b) in complying with any order made in any such proceedings,

shall, in proceedings for any related offence or for the recovery of any related penalty be admissible in evidence against that person or (unless they married after the making of the statement or admission) against the spouse of that person.
(4) Nothing in subsection (3) shall render any statement or admission made by a person as there mentioned inadmissible in evidence against that person in proceedings for perjury or contempt of court.
(5) In this section
"intellectual property" means any patent, trade mark, copyright, registered design, technical or commercial information or other intellectual property;
"related offence", in relation to any proceedings to which subsection (1) applies, means—

(a) in the case of proceedings within subsection (2)(a) or (b)—

(i) any offence committed by or in the course of the infringement or passing off to which those proceedings relate; or

(ii) any offence not within sub-paragraph (i) committed in connection with that infringement or passing off, being an offence involving fraud or dishonesty;

(b) in the case of proceedings within subsection (2)(c), any offence revealed by the facts on which the plaintiff relies in those proceedings;

"related penalty", in relation to any proceedings to which subsection (1) applies means—

(a) in the case of proceedings within subsection (2)(a) or (b), any penalty incurred in
664
respect of anything done or omitted in connection with the infringement or passing off to which those proceedings relate;

(b) in the case of proceedings within subsection (2)(c), any penalty incurred in respect of any act or omission revealed by the facts on which the plaintiff relies in those proceedings.

(6) Any reference in this section to civil proceedings in the High Court of any description includes a reference to proceedings on appeal arising out of civil proceedings in the High Court of that description.".
The Lord Chancellor: My Lords, I beg to move that the House doth agree with the Commons in their Amendment No. 10. This is a very esoteric subject, which revolves around a most marvellous invention of a member of the Bar, called the Anton Piller order, which—if I may try to use more explicit language—is designed to save those reputable firms which are engaged in the production of video recordings from criminal and other breaches of their copyright and intellectual property by the use of illicit tape recordings.
I need not go into the details, but under an ordinary Anton Piller order the alleged infringer is made to answer questions. Very often, perhaps in most cases, an ingenious person on the other side of the battlefield discovered that he could be excused from answering these awkward questions by pleading what in America would be called the Fifth Amendment: that he might expose himself to criminal proceedings if he answered the questions in a particular way. That caused a great rumpus because the victims of the practice, which is totally illicit, then complained that the whole protection of the Anton Piller order would be removed from them, and up to a point that was right. To quote Mr. Gladstone:
"The resources of civilisation have not wholly been exhausted '
and the amendment which, as I say, is somewhat esoteric, seeks to remedy the situation in an evenhanded way, by on the one hand requiring defendants in civil proceedings concerned with copyright and the like to answer the questions, whether or not incriminating, and, on the other hand, making any answers so given inadmissible in any criminal proceedings which might be instituted for related offences. This amendment was put together with commendable speed after consulting all the interested parties and I understand that it has general support. It is slightly modelled—after all, plagiarism and excision are the true marks of the great draftsman—on Section 31(1) of the Theft Act 1968, but I think it is unobjectionable and I hope the House will find it so, too. I beg to move that this House doth agree with the Commons on the said amendment.
Moved, That the House doth agree with the Commons in the said amendment.—(The Lord Chancellor.)
Lord Elwyn-Jones: My Lords, I have no criticism to make of this highly esoteric field where intellectual property, I see, comes to the foreground, and one needs a good deal of that to follow the Anton Piller doctrine.
On Question, Motion agreed to.

COMMONS AMENDMENT
11 After Clause 137, insert the following new clause—
"Attachment of National Savings Bank deposits, 1947 c. 44
(1) In section 27 of the Crown Proceedings Act 1947 (attachment of moneys payable by the Crown)—

(a) in subsection (1), paragraph (c) of the proviso (which precludes the making of orders under that subsection by the High Court or a county court in respect of money payable on account of a deposit in the National Savings Bank) shall cease to have effect; and

(b) after subsection (2) there shall be added—

"(3) In their application to England and Wales the preceding provisions of this section shall have effect subject to any order for the time being in force under subsection (2) of section (Attachment of National Savings Bank deposits) of the Supreme Court Act 1981.".
(2) The Lord Chancellor may by order direct that section 27(1) and (2) of the Crown Proceedings Act 1947 (attachment of moneys payable by the Crown) shall not apply in relation to any money payable by the Crown to any person on account of—

(a) any deposit in the National Savings Bank; or

(b) a deposit in that Bank of any description specified in the order.

(3) Any order under subsection (2) shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
(4) Without prejudice to section 150(4), this section extends to England and Wales only.".
The Lord Chancellor: My Lords, Amendment No. 11 follows on Amendment No. 6. I beg to move.
Moved, That the House doth agree with the Commons in the said amendment.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
12 After Clause 144, insert the following newclause—
"Amendment of Solicitors Act 1974
In section 50 of the Solicitors Act 1974 (jurisdiction of Supreme Court over solicitors) after subsection (2) there shall be inserted—
'(3) An appeal shall lie to the Court of Appeal from any Order made against a solicitor by the High Court or the Crown Court in the exercise of its jurisdiction in respect of solicitors under subsection (2).'.".
The Lord Chancellor: My Lords, Amendment No. 12 follows on Amendment No. 1. I beg to move.
Moved, That the House doth agree with the Commons in the said amendment.—(The Lord Chancellor.)
Lord Mishcon: My Lords, with the noble and learned Lord's permission, may I thank him most heartily for the way in which he received this amendment here, with the result that we now have this amendment from another place. If I had been in my place in time I would have again expressed my gratitude to him with regard to a similar amendment dealing with the attachment of debts, so perhaps he will allow me to say "Thank you" twice.
The Lord Chancellor: My Lords, I am very grateful to the noble Lord, Lord Mishcon, for those gracious remarks. I try to help the profession when I can, and I think the noble Lord, Lord Mishcon, performed a useful public service by drawing attention to these two matters.
On Question, Motion agreed to.

COMMONS AMENDMENT
13 Clause 146, page 85, line 15, at end insert:
"(3) Sections 33 to 35 shall have effect in relation to county courts as they have effect in relation to the High Court, as if in those sections references to rules of court included references to county court rules.".
The Lord Chancellor: My Lords, Amendment No. 13 is consequential on Amendment No. 2. I beg to move.
Moved, That the House doth agree with the Commons in the said amendment.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
14 Clause 149, page 87, line 31, at end insert:
"(1A) Until its repeal by this Act takes effect, section 9 of the Administration of Justice Act 1970 (constitution of the criminal division of the Court of Appeal) shall have effect as if the provisions which appear in this Act as subsections (3), (4), and (5) of section 55 were, as subsections (2), (2A) and (2B), respectively, substituted for subsection (2) of the said section 9 (with "court" in those subsections meaning a court of that division).".
15 Clause 150, page 88, line 10, leave out "October 1981" and insert "January 1982".
16 line 13, leave out "Section 141" and insert "Sections (Withdrawal of privilege against incrimination of self or spouse in certain proceedings), 141 and 149(1A)".
The Lord Chancellor: My Lords, Amendment No. 14 deals with the commencement of the Act, and I group it, if I may, with Nos. 15 and 16. The second of this group of amendments postpones general commencement of the Act by three months, from 1st October 1981 to 1st January 1982. It had been my hope that the Bill would come into force at the beginning of the legal year, on 1st October, but there are a number of matters in respect of which rules of court, both in the Supreme Court and in the county courts, and in other subordinate legislation, will be required before they can come into operation. Some of these, such as the new provision for appeals from county courts to the Court of Appeal (in paragraph 10 of Schedule 3), were in the Bill from the beginning, but a number of others have been added during the course of the Bill's passage; for example, the provision about attachment of debts, vacation sittings and the transfer of proceedings between the High Court and county courts. Even if the resources of the Lord Chancellor's department were greater, it would have been difficult to carry out the appropriate consultations and then get the necessary rules drafted and approved by the rule committees before 1st October. I have therefore rather reluctantly decided that commencement will have to be postponed for three months, and that is the effect of this amendment.
The other two amendments in this group, Nos. 14 and 16, stem largely from this postponement. They bring forward, so that they come into effect on Royal Assent, instead of having to wait until 1st January 1982, two things: first, the provisions giving a two-judge court of the criminal division of the Court of Appeal power to deal with sentencing appeals; and, secondly, the new clause which we have just been

667
discussing dealing with Anton Piller orders. So I beg to move that this House doth agree with the Commons in Amendment No. 14.
Lord Colville of Culross: My Lords, with very great daring I would suggest to my noble and learned friend that on occasions such as this in the past the House has permitted blocks of amendments to be taken together. My noble and learned friend has said, I think, that Nos. 14, 15 and 16 go together, and I have known the House to be agreeable to taking three in one, as it were, where it is suitable. I do not know whether this is a suitable occasion, but we have a long list of amendments before us.
The Lord Chancellor: My Lords, the answer to that is that my noble friend is of course perfectly right, but the trouble with this procedure, which I would have taken, is that it only really works when the amendments are in sequence. He is quite right in saying that Nos. 14, 15 and 16 could be dealt with in this way, but most of the others are dotted about the Bill. But if it is the will of the House, I will put all three together in one Motion, if I may now propose that.
Moved, That the House doth agree with the Commons in the said amendments.—(The Lord Chancellor.)
Lord Elwyn-Jones: My Lords, I am not surprised that it has been thought necessary to delay the implementation of the provision on the rules on this very technical matter. After some experience in the Lord Chancellor's Office I know how difficult it is to catch up very often with these major pieces of highly technical legislation, and, of course, it is very important to get the rules right.
On Question, Motion agreed to.

COMMONS AMENDMENTS
17 Clause 150, page 89, line 36, leave out subsection (6).
In the Schedules
18 Schedule 3, page 95, line 41, at end insert—
"Money recoverable by statute
2A. For section 40 (money recoverable by statute) substitute—
40. A county court shall have jurisdiction to hear and determine an action for the recovery of a sum recoverable by virtue of any enactment for the time being in force, if—

(a) it is not provided by that or any other enactment that such sums shall only be recoverable in the High Court or shall only be recoverable summarily; and

(b) the amount claimed in the action does not exceed the amount specified in section 39(2) of this Act."

19 line 42, after "jurisdiction)"insert—
"(a) in subsection (1)((l), for the words "and any" onwards substitute "(including any sum allotted out of wages or adjudged by a superintendent to be due by way of wages); "; and
(b)".
The Lord Chancellor: My Lords, I think I can do the same with Nos. 17, 18 and 19, all of which are consequential on Amendment No. 2. I beg to move.
Moved, That the House doth agree with the Commons in the said amendments.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
20 Schedule 3, page 96, leave out lines 11 to 23.
21 Schedule 3, lint 24, leave out "not covered by subsection (3) of this section."
22 Schedule 3, leave out lines 29 to 37 and insert—
"(5) In the case of any such claim as is mentioned in paragraphs (a) and (c) to (m) of section 56(1) of this Act,where—

(a) the claim arises in connection with a ship; and

(b) the person who would be liable on the claim in an action in personam ("the relevant person") was, when the cause of action arose, the owner or charterer of, or in possession of or in control of, the ship,

an action in rem may (whether or not the claim gives rise to a maritime lien on that ship) be brought in a county court against—

(i) that ship, if at the time when the action is brought the relevant person is either the beneficial owner of that ship as respects all the shares in it or the charterer of it under a charter by demise; or

(ii) any other ship of which, at the time when the action is brought, the relevant person is the beneficial owner as respects all the shares in it.".

The Lord Chancellor: My Lords, Amendments Nos. 20, 21 and 22 are consequential on Amendment No. 3, and I have already spoken to them. I beg to move.
Moved, That the House doth agree with the Commons in the said amendments.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
23 Schedule 3, page 96, leave out lines 44 to 50.
24 Page 97, line 20, at end insert—

"(10A) If, in any Admiralty proceedings in a county court, evidence is given to the satisfaction of the court that it is probable that the vessel, aircraft or property to which the proceedings relate will be removed out of the jurisdiction of the court before the plaintiff's claim is satisfied the court may issue a warrant for the arrest and detention of the vessel, aircraft or property unless or until bail to the amount of the claim made in the proceedings and the reasonable costs of the plaintiff in the proceedings be entered into and perfected according to county court rules by or on behalf of the defendant.

(10B) Except as provided by subsection (10A) of this section, and notwithstanding anything in section 74 of this Act, no vessel, aircraft or property shall be arrested or detained in Admiralty proceedings in a county court otherwise than in execution.".

25 Page 97, line 22, after "vessel" insert "aircraft".
26 Page 97, line 27, after "vessel" insert "aircraft".
27 Page 97, leave out lines 30 to 37 and insert—
"Persons who may exercise jurisdiction
73.—(1) Any jurisdiction and powers conferred by this or any other Act—

(a) on a county court; or

(b) on the judge of a county court,

may be exercised by any judge of the court.
(2) Subjection (1) of this section applies to jurisdiction and powers conferred on all county courts or judges of county courts or on any particular county court or the judge of any particular county court.".
The Lord Chancellor: My Lords, Amendments Nos. 23 to 27 are consequential on Amendment No. 2, and I beg to move.
Moved, That the House doth agree with the Commons in the said amendments.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
28 Schedule 3, page 98, line 28, leave out from "which" to end of line 30 and insert "(disregarding any limitation by reason of amount or value or annual value) a county court would have jurisdiction to hear and determine if they were commenced in it".
29 Schedule 3, page 98, line 34, leave out from "applications" to end of line 36 and insert "relating to the adoption or custody of, or access to minors (including applications relating to guardianship or custodianship);
(3A)This section applies to all proceedings transferred to the High Court under section 75B or 75C of this Act.".
30 Schedule 3, page 98, line 36, at end insert—
"(3A) An order for the transfer to a county court of any proceedings by or against the Crown in the High Court shall not be made without the consent of the Crown.".
31 Schedule 3, page 98, line 39, at end insert—
"(4A) Where proceedings are ordered to be transferred from the High Court to a county court—

(a) any party may lodge with the registrar of the county court named in the order or cause to be lodged with him the order and the writ, or copies of them, and such other documents (if any) as the High Court may direct; and

(b) the proper officer of the Supreme Court shall, on the application of that party and on the production of the order and the filing of a copy of it, send by post to the registrar of the county court all pleadings, affidavits and other documents filed in the High Court relating to the proceedings.

(4B) Subject to subsection (4C) of this section, on the documents mentioned in subsection (4A) of this section being so lodged or sent, the proceedings shall be transferred to the county court.
(4C) The transfer shall not affect any right or appeal from the order directing the transfer; or the right to enforce in the High Court any judgment signed or order made, in that court before the transfer.".
32 Schedule 3, page 99, line 1, leave out from beginning to "At" in line 8 and insert—
"Transfer of proceedings to High Court by Order of High Court
75B.—(1) If the High Court thinks it desirable, at any stage in proceedings commenced in a county court or transferred to a county court under section 75A of this Act, that the proceedings, or any part of them, should be heard and determined in the High Court, it may order the transfer to the High Court of the proceedings or, as the case may be, of that part of them.
(2) The power conferred by subsection (1) of this section is without prejudice to section 29 of the Supreme Court Act 1981 (power of High Court to issue prerogative orders).
"Transfer of proceedings to High Court by Order of county court
75C.—(1) ".
33 Schedule 3, page 99, line 35, leave out from first "court" to end of line 40 and insert "which the High Court would have jurisdiction to hear and determine if they were commenced in it, other than—

(a) matrimonial causes;

(b) applications relating to the adoption or custody of, or access to, minors (including applications relating to guardianship or custodianship).

(5) This section applies to all proceedings transferred to a county court under section 75A of this Act.'."
The Lord Chancellor: My Lords, Amendment No. 28, to which I will now speak, is grouped with Nos. 29, 30, 31, 32 and 33, all of which are in sequence, and then Nos. 52, 54, 58, 59, 61 and 78. All these amendments are consequential to the code for the transfer of cases from the High Court to the county court, and vice versa, introduced into the Bill during its Committee stage. The first of these amendments makes it plainer
670
that the power of transfer to county courts may be exercised not only in cases where there is a limitation on the amount—for instance, in contract or tort, £2,000—but also where there is a concurrent jurisdiction not divided between the courts by relation to amount. I believe this to be largely a drafting amendment. Amendment No. 29 restates in more general terms the exception from the new powers of transfer for proceedings relating to the welfare of children.
The new subsection (3A) makes it plain that the High Court may re-transfer to the county courts a case that has come up to it by the exercise of Section 75B or 75C. The third amendment moves the proviso to Section 78(2) of the County Courts Act 1959, which provides that an order for transfer to the county courts of any proceedings by the Crown in the High Court shall not be made without the consent of the Crown, into the new Section 75A. This thereby enables the proviso to Section 78(2) of the 1959 Act to be repealed in Amendment No. 59. Amendment No. 30 also reflects paragraph (a) of the proviso in Section 2 of the Crown Proceedings Act 1947, thereby enabling the whole of the proviso for that subsection to be repealed in Amendment No. 52.
Amendment No. 31 removes the substance of Section 77 (repealed by Amendment No. 59) of the County Courts Act 1959, which sets out the procedure on the transfer of cases from the High Court to a county court into the new Section 75A. The fifth amendment divides the new Section 75B into two new sections. There are two main purposes. The first is to ensure that the power of the High Court to bring proceedings up to itself is untrammelled by any exception. The second purpose is to ensure that the power of transfer up does not prejudice Clause 29, which relates to prerogative orders. This amendment makes no change to Section 75B, subsections (2), (3) and (4), beyond making them a separate section on their own. The sixth amendment is the obverse of the second amendment, dealing with children's cases and re-transfer. It also imports new words into the power to transfer so as to ensure that Parliament's intentions in conferring exclusive jurisdiction upon the county courts (as in the case of sex discrimination, race relations, et cetera) is not got around by exercise of the power of transfer. The seventh amendment, Amendment No. 52, is consequential. Amendment No. 54 is a related repeal about jurisdiction in the Companies Act 1948. Amendment No. 58 is another consequential repeal, as is the tenth amendment. The eleventh and the twelfth amendments are also consequential.
Moved. That this House doth agree with the Commons in the said amendments—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
33A Schedule 3, page 99, line 40, at end insert—
"7A. In section 87(1) (persons who may take affidavits in county courts) for "to 1891" substitute "and 1891 or a solicitor exercising the powers of a commissioner for oaths under section 81 of the Solicitors Act 1974 ".".
The Lord Chancellor: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 33A. This amendment is consequential on Amendment No. 2.
Moved. That this House doth agree with the Commons in the said amendment—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
34 Schedule 3, page 99, line 40, at end insert—
"7B. After section 101 insert—
"Interest on judgment debts, etc.
"101A.—(l) The Lord Chancellor may be order made with the concurrence of the Treasury provide that any sums to which this subsection applies shall carry interest at such rate and between such times as may be prescribed by the order.
(2) The sums to which subsection (1) of this section applies are—

(a) sums payable under judgments or orders given or made in a county court, including sums payable by instalments; and

(b) sums which by virtue of any enactment are, if the county court so orders, recoverable as if payable under an order of that court, and in respect of which the county court has so ordered.

(3) The payment of interest due under subsection (1) of this section shall be enforceable as a sum payable under the judgment or order.
(4) The power conferred by subsection (1) of this section includes power—

(a) to specify the descriptions of judgment or order in respect of which interest shall be payable;

(b) to provide that interest shall be payable only on sums exceeding a specified amount;

(c) to make provision for the manner in which and the periods by reference to which the interest is to be calculated and paid;

(d) to provide that any enactment shall or shall not apply in relation to interest payable under subsection (1) of this section or shall apply to it with such modifications as may be specified in the order; and

(e) to make such incidental or supplementary provisions as the Lord Chancellor considers appropriate.

(5) Without prejudice to the generality of subsection (4) of this section, an order under subsection (1) of this section may provide that the rate of interest shall be the rate specified in section 17 of the Judgments Act 1938 as that enactment has effect from time to time.
(6) The power to make an order under subsection (1) of this section shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.".".
The Lord Chancellor: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 34. The purpose of this amendment is to enable the Lord Chancellor (with Treasury concurrence) to provide a scheme for interest to be paid on certain county court judgment debts. The scheme would be made by statutory instrument subject to negative resolution. The background is that interest does not at present run on county court judgments and there have been criticisms of this position from time to time from the judiciary and elsewhere. At Report stage I undertook to put down an amendment in the Commons. In view of the way in which the county court operates and also in view of the need to limit the effect on the manpower in the public service, the scheme will need to be flexible, both as to those judgment debts which are to be included and the machinery by which interest will be payable. I propose to issue a consultative paper to canvass the opinions of interested
672
parties. I beg to move this very highly technical amendment.
Moved, This this House doth agree with the Commons in the said amendment—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
35 Schedule 3, page 99, line 40, at end insert—
"7B. For section 94(3) (trial by jury) substitute—
"(3) Where, on any such application, the court is satisfied that there is in issue—

(a) a charge of fraud against the party making the application; or

(b) a claim in respect of libel, slander, malicious prosecution or false imprisonment; or

(c) any question or issue of a kind prescribed for the purposes of this paragraph,

the action shall be tried with a jury, unless the court is of opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury.".".
The Lord Chancellor: My Lords, I beg to move that the House doth agree with the Commons in their Amendment No. 35. This amendment is consequential to Amendment No. 9.
Moved, That this House doth agree with the Commons in the said amendment—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
36 Schedule 3, page 99, line 43, leave out from "in" to end of line 45 and insert "which—

(i) the jurisdiction or powers of a county court or the judge of a county court may be exercised by a registrar or some other officer of the court; or

(ii) the jurisdiction or powers of the registrar of a county court may be exercised by some other officer of the court;".

The Lord Chancellor: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 36. This amendment is consequential on Amendment No. 2.
Moved, That this House doth agree with the Commons in the said amendment—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
37 Schedule 3, page 100, line 16, after "value" insert "or annual value".
The Lord Chancellor: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 37. I believe that this is another technical amendment; I hope that I am not misleading the House in saying so.
Lord Elwyn-Jones: My Lords, I remember an occasion in the House of Lords when counsel for one of the parties said that the point being taken against him was a very technical point. The late noble and learned Lord, Lord Morris of Borth-y-Gest, said, "Ah, yes, in some cases what you may think of as a technical point is a point of principle which has been discovered by the other side!"
The Lord Chancellor: My Lords, there is not another side to this particular debate!
Moved, That this House doth agree with the Commons in the said amendment—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
38 Schedule 3, page 100, leave out line 18 and insert "whether that amount or value or annual value exceeds a specified fraction of the relevant county court limit".
The Lord Chancellor: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 38. This is another technical amendment and goes together with Amendment No. 41. I do not think that any point of principle arises on this amendment.
Moved, That this House doth agree with the Commons in the said amendment—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
39 Schedule 3, page 101, line 5, after "not" insert "(a)".
40 Schedule 3, page 101, line 7, after "enactment", insert" or
(b) take away any right of appeal from any judgment or order where a right to appeal is so conferred;".
The Lord Chancellor: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 39 and 40. These amendments are consequential on Amendment No. 2.
Moved, That this House doth agree with the Commons in the said amendments—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
41 Schedule 3, page 101, line 10, at end insert, "and the relevant county court limit" means in relation to proceedings of any description, the sum by reference to which the question whether a county court has jurisdiction to hear and determine the proceedings falls to be decided.".
The Lord Chancellor: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 41. This amendment is consequential on Amendments No. 37 and 38.
Moved, That this House doth agree with the Commons in the said amendment—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
42 Schedule 3, page 102, line 45, at end insert—
"17A. For section 143 substitute—
"Attachment of debts.
143.—(1) Subject to any order for the time being in force under subsection (4) of this section, this section applies to the following accounts, namely—

(a) any deposit account with a bank or other deposit-taking institution.

(b) any withdrawable share account with any deposit-taking institution; and

(2) In determining whether, for the purposes of the jurisdiction of the county court to attach debts for the purpose of satisfying judgments or orders for the payment of money, a sum standing to the credit of a person in an account to which this section applies is a sum due or accruing to that person and, as such, attachable in accordance with county court rules, any condition mentioned in subsection (3) of this section which applies to the account shall be disregarded.
(3) Those conditions are—

(a) any condition that notice is required before any money or share is withdrawn;

(b) any condition that a personal application must be made before any money or share is withdrawn;

(c) any condition that a deposit book or share-account book must be produced before any money or share is withdrawn; or

(d) any other prescribed condition.

(4) The Lord Chancellor may by order make such provision as he thinks fit, by way of amendment of this section or otherwise, for all or any of the following purposes, namely—

(a) including in, or excluding from, the accounts to which this section applies accounts of any description specified in the order;

(b) excluding from the accounts to which this section applies all accounts with any particular deposit-taking institution so specified or with any deposit-taking institution of a description so specified.

(5) Any order under subsection (4) shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
(6) In this section "deposit-taking institution" means any person carrying on a business which is a deposit-taking business for the purposes of the Banking Act 1979.".".
The Lord Chancellor: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 42. This is consequential on Amendment No. 6.
Moved, That this House doth agree with the Commons in the said amendment.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
43 Schedule 3, page 103, line 14, at end insert—
"19A. In section 174 (transfer to county court of money recovered in High Court by infants &c.)—

(a) in subsection (1), for "of unsound mind" substitute "a patient"; and

(b) add after subsection (2);—

"(2A) In this section "patient" has the meaning assigned to it by section 101 of the Mental Health Act 1959."."
The Lord Chancellor: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 43. This is consequential on Amendment No. 2.
Moved, That this House doth agree with the Commons in the said amendment.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
44 Schedule 3, page 103, line 22, at end insert—
"20A. In section 186 (proof of service of summonses, &c.)—

(a) in subsection (2), for "fifty pounds" substitute "the statutory maximum"; and

(b) add after subsection (2):—

'(3) In subsection (2) of this section "the statutory maximum" means the prescribed sum within the meaning of section 32 of the Magistrates' Courts Act 1980.".'."
The Lord Chancellor: My Lords, I am informed on the best authority that this is a highly technical amendment. I beg to move that this House doth agree with the Commons in their Amendment No. 44.
Moved, That this House doth agree with the Commons in the said amendment.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
45 Schedule 3, page 103, line 22, at end insert—
"20B. Before section 200 insert—
"Lords Commissioners to represent Lord Chancellor when Great Seal in Commission.
199A. When the Great Seal is in commission, the Lords Commissioners shall represent the Lord Chancellor for the purposes of this Act; but the powers vested in him by this Act in relation to the appointment of officers may be exercised by the senior Lord Commissioner for the time being.".".
46 Schedule 3, page 103, line 23, after "(interpretation)", insert—
(a) after the definition of "landlord" insert—
" 'matrimonial cause' has the meaning assigned to it by section 10(1) of the Matrimonial Causes Act 1967;" and
(b)'."
47 Schedule 5, page 104, line 29, leave out "6" and insert "5"
48 Page 105, line 15, leave out "Courts Act 1971" and insert "Criminal Appeal Act 1966".'
49 Page 107, line 37, at end insert—
"MATRIMONIAL CAUSES ACT 1967 (c. 56)
In section 10(1), for the definition of "matrimonial cause "substitute—
"matrimonial cause" means an action for divorce, nullity of marriage, judicial separation, or jactitation of marriage or an application under section 3 of the Matrimonial Causes Act 1973; "
50 Page 108, line 32, at end insert—
"ADMINISTRATION OF JUSTICE ACT 1970 (c. 31)
In section 37 for the words "no court other than a county court shall" substitute the words "the High Court shall not"."
51 Page 121, line 3, at end insert "In section 87(2) for "penalty" substitute "sum".".
The Lord Chancellor: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 45 to 51 inclusive. They are consequential on Amendment No. 2.
Moved, That this House doth agree with the Commons in the said amendments.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
52 Schedule 7, page 116, line 51, leave out "paragraph (b) of".
The Lord Chancellor: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 52. This is consequential on Amendment No. 8.
Moved, That this House doth agree with the Commons in the said amendment.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
53 Schedule 7, page 116, line 52, column 3, at end insert "In section 27(1), paragraph (c) of the proviso and the word "or" preceding it.".
The Lord Chancellor: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 53. This is consequential on Amendment No. 6.
Moved, That this House doth agree with the Commons in the said amendment.——(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
54 Schedule 7, page 116, line 52, at end insert—

"11 & 12 Geo. 6. c. 38

Companies Act 1948

In section 219, in subsection (1), the words from "at any time" to "or may", and subsection (2)."

The Lord Chancellor: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 54. This is consequential on Amendment No. 28.
Moved, That this House doth agree with the Commons in the said amendment.—(The Lord Chancellor.)
On Question, Motion agreed to.
Lord Elwyn-Jones: My Lords, to save the noble and learned Lord the Lord Chancellor from utter exhaustion, would it not be possible to move those amendments which are merely consequential together under the rubric of "merely consequential amendments"? We would not seek to invite the noble and learned Lord to put each one to us.
The Lord Chancellor: My Lords, I willingly and happily accept the suggestion which comes from the noble and learned Lord, since all the remaining amendments are consequential on quite a variety of other amendments that I have already moved.

COMMONS AMENDMENT
55 Schedule 7, page 117, line 24, at end insert—

Section 52(2)."

56 Schedule 7, page 117, leave out lines 26 to 27.
57 Schedule 7, page 117, line 39, column 3, at end insert—

"In section 71, the words "or of any other court in England or Wales".".

58 Schedule 7, page 117, line 40, column 3, at end insert—

"In section 74(1)(b), the words "(subject to the provisions of section sixty-five of this Act)".".

59 Schedule 7, page 117,line 45, column 3, at end insert—

"Section 77.

In section 78(2), the proviso."

60 Schedule 7, page 117, line 46, column 3, at end insert—

"Section 83."

61 Schedule 7, page 117, line 50, column 3, at end insert—

"Section 85(2)."

62 Schedule 7, page 117, line 51, column 3, at end insert—

"Section 94(4)."

63 Schedule 7, page 117, line 53, column 3, at end insert—

"Section 107."

64 Schedule 7, page 118, line 10, column 3, at end insert—

"In section 122, in subsection (1), the words "or chattels" and in subsection (2), the words "and chattels" and "and chattels of the first-mentioned person".".

65 Schedule 7, page 118, line 26, leave out from "146" to end of line 27 and insert ", in subsection (1) the words "or a judge thereof" and "or judge" and in subsection (2). the words "or judge".".
66 Schedule 7, page 118, line 27, column 3, at end insert—

"In section 150(2), the words "or other inferior court".".

67 Schedule 7, page 118, line 29, column 3, at end insert—

"In section 174, in subsection (1), the words "or a judge thereof "and "or judge" and in subsection (2), the words "or a judge thereof".".

68 Schedule 7, page 118, line 29, column 3, at end insert—

"Section 175."

69 Schedule 7, page 118, line 32, after "of" insert "Lord Chancellor"."
70 Schedule 7, page 118, line 36, after "(3)", insert "(5), (6) ".
71 Schedule 7, page 120, line 2, leave out "entry relating to" and insert "entries relating to section 27 of the Crown Proceedings Act 1947".
72 Schedule 7, page 120, line 4, at end insert "and section 143 of the County Courts Act 1959".
73 Schedule 7, page 120, line 11, column 3, leave out from "(1)" to end of line 13 and insert "to (3) and (5)".
74 Schedule 7, page 120, line 35, leave out "and 35".
75 Schedule 7, page 120, line 36, at end insert "and county courts".
76 Schedule 7, page 120, line 37, column 3, at end insert—

"Section 34(1).

Section 35 so far as it relates to the High Court and county courts in England and Wales.".

77 Schedule 7, page 120, line 37, at end insert—

"Section 37(3)."

78 Schedule 7, page 120, line 41, leave out "and 20" and insert ",20 and 22, and in paragraph 23, the words "and section 63 thereof (transfer of probate proceedings from High Court to county court'," and ",in each place where they occur,".".
79 Schedule 7, page 121, line 39, after "1 ", insert "6(3)".
The Lord Chancellor: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 55 to 79.
Moved, That this House doth agree with the Commons in the said amendments.—(The Lord Chancellor.)
On Question, Motion agreed to.

Armed Forces Bill
Returned from the Commons with the amendments agreed to.

British Nationality Bill
3.45 p.m.
The Parliamentary Under-Secretary of State, Home Office (Lord Belstead): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Belstead.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
Clause 43 [Decisions involving exercise of discretion]:
Viscount Colville of Culross Viscount Colville of Culross moved Amendment No. 141ZAC:
Page 38, line 8, leave out subsection (2) and insert
("(2) Subject to subsection (3) and to Rules of Court, any person who has made an application to the Secretary of State, a Governor or Lieutenant-Governor under this Act shall be entitled to appeal to the Court against a decision refusing his application for a review of the decision and for an order declaring his rights under this Act.
(3) Without prejudice to section (Appeal against refusal of registration or naturalization) subsection (2) shall not apply to a decision made under sections 3(1), (5), 4(4), (5), 5, 6(3) to (6), 7(2), (3), 11(4) and that subsection as applied by sections 23, 28 and 33, 12(3) and that subsection as applied by sections 23, 16(1), (5), 17, 19(2), (3), 26(1), 27(2), (3), 31, 38 and 39, and in the case of any such decision there shall be no requirement to assign any reason for the refusal of the application and the decision shall not be subject to appeal or review in any court.").
The noble Viscount said: The Committee will agree with me that this is not an afternoon for long speeches. We have been put in a high good humour by my noble and learned friend, and we have been advised by him not to quarrel. I shall attempt to abide by all those precepts. Nevertheless, Members of the Committee who have been following this Bill will appreciate that when one comes to the provisions relating to appeals there has been a good deal of concern. It is, of course, an important matter because of the increased number of decisions that will have to be taken by, primarily, the Home Office under the new arrangements that are coming into force.
The purpose of this amendment is to deal with the decisions made by the Home Secretary which are decisions of entitlement. In Clause 43(2) it is put in the negative that a decision which is at the discretion of the Secretary of State, a Governor, or a Lieutenant-Governor shall not be subject to appeal to, or review in, any court.
I am concerned about this because it leaves a complete silence about what are to be the rights of appeal that will be available to those who seek to obtain, for instance, registration as a matter of entitlement. First of all, two simple questions to my noble and learned friend Lord Mackay: Have I listed in the second subsection of my amendment all the discretionary decisions except the one that I know I have left out which is paragraph 6 of Schedule 2? Secondly, I put in the list Clause 38. That, together with Schedule 4 is something of an oddity in the Bill because it provides for the insertion into the Immigration Act of 1971 of certain amendments, some of which will be the subject of decisions in due course.
Under the Immigration Act 1971, inherited from legislation two years before that, there is a system of appeals to an adjudicator and the immigration appeals tribunal, and also the ability to go straight to the High Court on some immigration matters. I want to make perfectly certain that merely by putting amendments to the 1971 Act into this Bill in Clause 38 and Schedule 4, and then saying in Clause 43(2) that there shall be no appeal on matters of discretion, there is absolutely no question whatever of there being any alteration of the

679
rights of appeal under the Immigration Act. The provisions of Clause 43 will not, therefore, rub off on to the new insertions into the Immigration Act. I am sure that they will not; but one needs to be absolutely certain that the drafting is such that there is no question of anybody even being able to argue it. I ask my noble and learned friend for an assurance on that. Incidentally, I gave notice of the point before; I am sorry if it was not communicated to my noble and learned friend.
The main point of the amendment is that, as I understand the intentions of the Government, a person who is dissatisfied with the Home Secretary's decision on a matter which under the Bill is one of entitlement shall be able to go to the courts by way of appeal. Since it is not a matter of discretion but one of entitlement, Clause 43(2) does not bite. The Bill says no more about how you do it, what the courts will do or anything further. The procedure that the Government have in mind—and I hope my noble and learned friend will be able to confirm this—is the procedure under Order 53 of the Rules of the Supreme Court, which is called "judicial review". This is a new remedy which has been in being for only a few years. Consequently, the Supreme Court practice book—the White Book as the lawyers know it—has very few notes about the way in which the new Order 53 works. Broadly speaking, it replaces the old prerogative remedies and gives the courts extra powers to grant injunctions and declarations by way of supplement to their discretion to, for instance, the old order of certiorari.
I wonder whether this is the right remedy and I will tell your Lordships why. I am sorry it has to be technical, but this is a very technical affair. The history of the orders which are now incorporated in the judicial review has been built up by the courts over a period of time and they correct the abuse or misuse of power of the executive. What they have never done, and, as I understand the situation, still do not do under the new provisions of judicial review, is to act as a court of appeal on fact, and above all not on fact when decisions have been given by Parliament to one or other executive body.
I should like to illustrate the matter in this way. The other night I raised the question of the entitlement that occurs under Clause 3 to a person born outside the United Kingdom. The baby can be registered within 12 months of birth, provided that one of the parents in question satisfies all the four requirements in Subsection (2) of Clause 3. As I pointed out the other day—and my noble friend Lord Geddes raised this point on an earlier amendment—we have the term "a close connection" involved. My noble and learned friend said late on Thursday night that these were two familiar words and everybody would know what they meant; but, as a matter of fact, the Committee, upon reflection, will see at once that there will be ail sorts and conditions of circumstances which have to be considered to see whether the case in question falls on the one side or the other of the borderline, whether or not there is a close connection.
Let us take a decision under Clause 3(2)(d) that the parent in question intends to maintain a close connection. All the facts will be set out. And let us suppose that the Home Office comes regretfully to the conclusion that they do not think that the parent in question does intend to maintain a close connection.
680
According to my understanding of the Government's intention, that decision could then be taken to the court by way of judicial review. There will be affidavits which set out the material that was put before the Home Secretary in order to try to persuade him that the parent in question did intend to maintain a close connection. No doubt there will be an affidavit from the Home Office saying that this matter was considered and, for reasons that are given, they considered it was not a close enough connection or that the intention was not permanent or something of that sort.
What happens? What will the courts do about this? Are they going to look at these facts afresh and act as a court of appeal on those facts and decide for themselves, "No, we place ourselves in the position of the Home Secretary. We reverse his ruling because having taken into account all the facts set out in these affidavits we think that this does constitute an intention to maintain a close connection"? Or will they not? I would suggest to the Committee that they are much more likely not to do so because of the background I have set out whereby judicial review follows on this age-old tradition of merely correcting abuses.
My noble and learned friend might like to consider this point. What does she think of the proposition that the court might, in answer to the question that I have notionally put to it, merely say this:
"If on the evidence taken as a whole the Secretary of State has grounds, and reasonable grounds, for coming to the conclusion that the parent does not intend to maintain a close connection with the United Kingdom, this court will not interfere."
That is what the courts tend to say and, with a minor alteration, I am taking it straight from the words of the present Lord Chief Justice on an immigration case. That is the pattern of what happens on judicial review, because the courts do not like being put into a position under this procedure of having to act as a court of appeal on fact.
If that is a correct analysis of what will happen, without having to go into the subsidiary question of whether or not cross-examination will be allowed (which is in the rules but as far as I know has never previously been allowed in an individual case), without going into any of those details, the whole of the remedy which has been held out by the Government throughout the course of the Bill as providing for a correction of mistakes in cases where there is an entitlement under the Bill and an entitlement which many of your lordships believe to be an absolutely vital, quid for the quo of losing jus soil, the whole thing will turn out to be entirely without foundation. There will in fact be no real appeal at all and the decision will rest with a well-worded letter from the Home Office which cannot in practice be challenged.
I do not wish to be hostile about this. I understand perfectly well that the intentions of my Front Bench are that there shall be an appeal and where there is an entitlement it will not rest, as do other sorts of decisions, simply with the Home Office and can be taken no further. What I do not understand at the moment is how they see it fitting into the system of the courts and the procedures as we have them now. I put down this amendment to test the point. Upon reflection, I think it does not go nearly far enough, because I

681
do not think it provides enough positive rights. But, at any rate, it will do to get the discussion going, and I hope very much that my noble and learned friend will be able to give me satisfaction on this on a practical basis, saying how it will work, so as to make quite sure that we are not passing this legislation in the belief that there is a remedy only to find out far too late that the whole thing is a sham. I beg to move.
The Chairman of Committees (Lord Aberdare): If this amendment is agreed to, I cannot call any of the remaining amendments to Clause 43.
The Lord Advocate (Lord Mackay of Clashfern): I am sure that the Committee will be grateful to my noble friend for the spirit in which he addressed himself to this matter and the atmosphere which he has sought to continue from that which prevailed on the Supreme Court Bill. May I first of all try to answer the two specific questions that he raised at the beginning? Apart from the omission which he himself has noticed, I think that his clause covers all the provisions in the Bill which he would have intended it to cover. So far as the Immigration Act amendment is concerned which is contained in Clause 38 of this Bill, our view is that that has made amendments on provisions of the Immigration Act but the amendments are inserted into the Immigration Act and accordingly the provisions relating to appeals and so on in the Act are not interfered with by that amendment.
If I might now address myself to the main matter which my noble friend has raised, as I have sought to explain earlier the intention of the Government is that, where under the Bill there is an expressed entitlement to registration, that should be a right which is subject to the appeal, subject to adjudication by the court. The phrase which is in that sort of provision about the Secretary of State being satisfied is one which we have undertaken to look at in order to give effect to that view. Accordingly, so far as the substance of the matter is concerned, I think there is no difference between us in that our intention is that there should be a right to go to the court to have the matter determined.
My noble friend has asked what the procedure would be. Of course, the Bill does not attempt to lay down the procedure, that being more a matter for the court itself. I certainly understand that the most likely procedure to be available and suitable for this problem as far as the English courts are concerned is the new Order 53 provision. Of course, as my noble friend knows, the new Order 53 for judicial review provides that in an appropriate case the court may give a declaration of rights as well as effect relief such as would be given under the old prerogative writs or prerogative orders. Accordingly, the procedure that would apply for a declaration in a suitable case would be available in such a situation.
The problem of "close connection" has been referred to more than once, and I agree that the question of application of that test to particular circumstances may not always be easy. I do not regard the difficulty as arising from any doubt about the meaning of the words "close connection", but rather from the application of these to different circumstances. Our view is that in the situation where an entitlement
682
applies, the court will have the responsibility of determining whether that entitlement exists, and that, therefore, is not a situation in which any kind of discretion to the Secretary of State would arise. If the Secretary of State was entitled to reach that view, which does arise in some circumstances, we should doubt whether the formula would apply here. This is a matter which we shall, of course, consider in relation to the amendment which, I think, was originally moved by the noble Lord, Lord Gifford, a considerable time ago. Certainly what my noble friend has said today we will have in mind in considering the appropriate result of that consideration. I hope that, in the light of that assurance, my noble friend will feel able to withdraw this amendment.
4.2 p.m.
Lord Mishcon: We are all indebted to the noble Viscount and to the noble and learned Lord for a very lucid debate, so far, on a vital matter. I imagine that there will be no difference at all on any side of the Committee. once one accepts the fact that there is a need for an appeal; certainly, where the question of entitlement is concerned. Some of us feel that it should also be there in other circumstances where discretion applies, but we are not going to debate that on this amendment. I ask for the Committee's indulgence while I go further into this matter only because, since there will be consideration between now and Report stage, I want—if I may say so, in all humility—the Government at least to know what is the position of my noble friends on this matter, although I believe it is a position which will be held by the majority of the Committee. I would even be optimistic and say that it will be held by everybody in the Committee.
The noble Viscount made a most important point when he said that if there is to be a right of appeal on entitlement, it must be clear beyond peradventure in the Bill that the court or tribunal that hears the appeal can do so de novo. It can open the matter as though the court were, indeed, the Secretary of State, looking at all the evidence. The noble Viscount, very correctly, took as his example Clause 3(2)(d) of the Bill. He mentioned only the first part of it because, out of consideration to the Committee, he wanted to be brief. But there is a second part to it.
He mentioned the first part,
"that the parent in question intends to maintain a close connection with the United Kingdom",
and that can well be held to be a question of fact. The noble and learned Lord may well say, as he has said before, that a close connection is pretty obvious. You look at the facts of each case and decide it. But I ask your Lordships to look at the second part of that paragraph which reads:
"… or, if the parent in question has died since the birth, that he or she had that intention at the time of the birth."
What an area of evidence can be covered by any such situation! I think the Committee is anxious that the appeal procedure, which the Government have been good enough to say they will now, in view of the opinion of the Committee, put into this Bill, shall be abundantly clear as being a procedure which enables the appellate court or tribunal to look at all the evidence and to make a decision of its own.
If I may say so with the greatest of deference, the

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noble Viscount was absolutely right when he talked about the limitation, so far as lawyers know it to date, of the judical review procedure. Most of us feel that the judicial review procedure will be upon the basis: "Has there been a quite apparent miscarriage of justice? Have the rules, as it were, been observed in coming to a decision so far as the Minister is concerned?" If they have been observed, then it is very likely—I put it no higher—that the judge conducting the judicial review will say: "I need go no further".
So I make an appeal on behalf of my noble friends with the same voice, if not so eloquent a voice, as the noble Viscount, that, whether the Government make it the tribunal which the noble Viscount was talking about on his important amendment on another occasion, whether they make it the tribunal that my noble friends and I advocated in a certain amendment or whether it be the High Court, it must be a procedure that allows the applicant to go with his case to the judge or to the tribunal, on the basis that it should be heard with all the evidence that was before the Home Office, and with the court or tribunal free to make its own decision in the place of the Home Secretary if the court or tribunal feels that the decision is wrong.
There is only one other matter that I wish to raise and I shall then sit down very rapidly. The noble Viscount, in my respectful view, was also correct in saying, when he referred to the provisions that amend the Immigration Act 1971, that he wanted to be abundantly sure that the right of appeal before the tribunals set out in the Immigration Act should, without any question of doubt, still be available. The noble and learned Lord said very clearly: "That is our view". I would plead with him, so that there is no dubiety at all, that at Report stage there should be brought into the Bill a clear statement in a suitable place that nothing else in the Bill affects the rights of appeal in the Immigration Act, as amended by this Bill.
4.7 p.m.
Lord Boyd-Carpenter: I do not think it is necessary, at this stage, to add anything on appeals in entitlement cases, because my noble and learned friend himself, on a much earlier amendment some days ago, during a debate in which I took part, gave the clearest possible undertaking that the Government would be looking into this between now and Report stage. I am sure that he took on board the view then expressed, which has been re-echoed this afternoon by the noble Lord, Lord Mishcon, that the kind of appeal in those cases will not be the kind of appeal in which the onus falls on the appellant of establishing that no reasonable Secretary of State could possibly have come to the view complained of, but that it will rather be a case, as the noble Lord, Lord Mishcon, has said, of the appellate body, whatever it is, having the right to look at the whole facts of the case and to see the case as the Home Secretary originally saw it, in order to see whether they come to the same view. As is it clear that the assurances we have been given cover that, then it would be premature before the Report stage to say anything more on that.
But I am moved by this amendment simply to ask one question on the construction of this clause, about which I am puzzled. This clause deals with discretion cases and subsection (1), on which the amendment
684
does not bite, lays down the impeccable sentiment that the discretion,
"shall be exercised without regard to the race, colour or religion of any person who may be affected by its exercise".
If one then reads subsection (2), one sees that recourse to the courts is excluded in these discretion cases. Subsection (1) deals with a discretion case. Does it, therefore, follow logically that there is no sanction whatever on the Secretary of State to act as laid down in subsection (1)? Alternatively, if we had a Secretary of State—and I hasten to say that no one would suggest it of the present one—who allowed any of these decisions to be affected by any of these considerations, would the person complaining, the person who thought this had happened, have any right of access to the courts at all? If he has not, then really the impeccable sentiments set out in subsection (1) are hardly worth the paper they are written on.
4.11 p.m.
Lord Mackay of Clashfern: May I first of all make it clear that the undertakings which I gave earlier were to consider the expression that was used in the Bill, "the Secretary of State is satisfied", with a view to seeing whether that expression caused an impediment to the achieving of the result which we said was achieved. I have never said that we agree that it is necessary to bring any kind of appeal procedure into this Bill for that particular matter. What we have said is that we want to consider the words to make sure that a person has access to the court in order to vindicate his rights in the entitlement situation. That seems to me to cover the right in a way more directly than an appeal. The very idea of an appeal procedure may not be the best thought for this. This is a situation in which a person has a right which, in our view, he should be entitled to vindicate. That is the purpose that we have in mind and which I think would entirely match the object that my noble friend Viscount Colville had in mind.
So far as the question that is raised by the noble Lord, Lord Boyd-Carpenter, is concerned, the view which I would suggest to the Committee is the correct one is that Section 43(1) is a very plain direction to the Secretary of State, to a Governor or Lieutenant-Governor, and I would take the view strongly that that is a very clear statement which we would not anticipate ever being breached. It seems quite inappropriate to go on to provide any formal sanction, but I feel fairly certain that the court would take account of Section 43(1) in considering the scope of Section 43(2). There are authorities, as I am sure my noble friend is aware, which state that however wide an exclusion of the court's powers of review may be in form, in fact it applies only to the area of jurisdiction which Parliament has given to the inferior tribunal or statutory authority. Therefore, in considering the scope of subsection (2) the court would certainly have regard to the existence and effect of subsection (1).
Lord Rawlinson of Ewell: While I agree with my noble and learned friend in what he has just said, he rather foreshadows what we are going to discuss, perhaps in the next amendment to be moved by the noble and learned Lord, Lord Elwyn-Jones, and perhaps my noble and learned friend would consider

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that there would be much merit in that amendment, merely to make it absolutely clear that subsection (2) is governed by the first few words in subsection (1). Therefore, while I would very much agree with my noble friend in what he just said as to what is the probable actual construction of subsections (1) and (2), nevertheless I hope he will look with considerable favour on what I understand is going to be moved by the noble and learned Lord in the next amendment.
Lord Elwyn-Jones: I was tempted to intervene to make the point the noble Lord, Lord Rawlinson, has just made in the light of what was said by the noble Lord, Lord Boyd-Carpenter, but perhaps, as I see eagerness to deal with the Statement, it would be appropriate for us to deal with that matter when I move my amendment. As to what has been said on the amendment moved by the noble Lord, Viscount Colville, he will no doubt give his decision upon the matter. I confess that we found somewhat disappointing the words of the noble and learned Lord, the Lord Advocate, in his response, and in view of the great importance of this I wondered whether it would be possible before the actual day of the Report stage if we could get some indication from the Government, by correspondence if possible, as to what they have in mind. Because clearly this is going to the root of much of the anxiety that has been created by the Bill, namely, the apparent rightlessness and parlous situation of people whose rights may be very seriously and adversely affected.
Viscount Colville of Culross: I imagine it would be the wish of the Committee just to finish this amendment before we take the Statement, and I will do so very quickly indeed. As one footnote to the point made by my noble friend Lord Boyd-Carpenter, I would say that the difficulty about getting the courts to come to the interpretation that he foreshadowed, as did also my noble and learned friend, is that you have a sort of Anisminic type case, where the difficulty is such that it is only in this House that the matter is finally resolved. That is an extremely expensive way of doing it for the sake of two or three words in the Bill which would save all that trouble. On the main point, I understand perfectly well the scope of the undertaking that had been made earlier by the Front Bench about the Secretary of State's being satisfied. What I had hoped to do in this amendment was to deal with some of the mechanics of the way in which judicial review works, and I have welcomed the support of the noble Lord, Lord Mishcon, on this. I think everybody agrees that there is a real problem here.
I think I must say finally to my noble and learned friend Lord Mackay that he referred to the extension under Order 53 of the remedies so that they now include an injunction and a declaration. With the greatest deference, I would invite him to talk to the judicial authorities about that. I think he will find that although those remedies have been put in, they have not extended the fundamental scope of what the order for judicial review covers. They have not enabled declarations to be given except when an abuse of power has been discovered; they have not changed the fundamental tests by which the courts decide in
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their discretion whether or not to make an order of certiorari. In other words, there is no new additional fact-finding machinery that has been built in by the addition of these two new powers. If that is right, think the force of what he said by say of reply to me very largely falls away and we are back with the quotation from the Lord Chief Justice that I gave him.
I want to withdraw this amendment quickly. I hope my noble and learned friend will respond to the invitation of the noble and learned Lord, Lord Elwyn-Jones, to tell us early what is going to be done, because we shall need to know about this. I hope that he will carefully consider what has been said and that we may revert to this matter when we come back again on Report. i thank him very much for what he has said, but I am afraid that unless he comes up with something which is satisfactory we shall have to go back to it. I leave one thought in his mind. Would it be possible to provide in the Bill as an absolute minimum something like "subject to rules of court" or "the ability to make rules of court" to deal with this question as a supernumary to Order 53 if it should turn out that that order is inadequate? I just leave the thought with him that that might be one of the ideas to consider. I thank those who have taken part in this debate, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Parliamentary Under-Secretary of State, Department of Trade (Lord Trefgarne): I understand that it would now be convenient to take the Statement. I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.

Royal Assent
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:

Appropriation Act,

Belize Act,

Deep Sea Mining (Temporary Provisions) Act,

Supreme Court Act,

Armed Forces Act,

Greater London Council (Money) Act.

Local Government Audit in England and Wales
4.22 p.m.
The Parliamentary Under-Secretary of State, Department of the Environment (Lord Bellwin): My Lords, belatedly, with the permission of the House, I should like to repeat a Statement which is being made in another place on local government audit in England and Wales.
The Statement was as follows:
"In their report on the role of the Comptroller and Auditor General the Public Accounts Committee made recommendations on this subject among others. The Government's response to the committee's report as a whole is being published today in a White Paper. Since early legislation on local government audit is proposed it was thought right to make a separate Statement to the House on this.
"The Government entirely endorse the PAC's conclusion that the present arrangements for local authority audit need to be improved and that greater attention needs to be given to value for money work. In addition, we do not believe it is right in principle that a local authority should appoint its own auditors. We also wish to see the experience of private sector accountants used in substantially greater measure in local government audit.
"The PAC concluded that the Comptroller and Auditor General should assume responsibility for the district audit service. The Government have considered this very carefully, but have decided that such an arrangement would be fundamentally inconsistent with the constitutional position of local authorities. Parliament's proper interest in monies voted as Exchequer grants to local authorities is best pursued through the accountability to Parliament of the Ministers responsible for the payment of those grants.
"The Government accordingly propose to introduce early legislation to establish a new audit commission which would be responsible for the audit of local authorities in England and Wales. Its members would be appointed by my right honourable friends the Secretaries of State for the Environment and for Wales, partly from local government and partly from people with relevant expertise in industry, commerce and the professions, with an independent chairman.
"The commission would appoint auditors to the local authorities, either from district audit or from the private sector. It would take over from my department responsibility for the district audit service. Discussions with the staff about possible transfer arrangements will start now.
"The commission would also subsume the functions of the Advisory Committee on Local Government Audit.
"The commission would not be responsible for the audit of water authorities, whose auditors would in future be appointed by the relevant Secretary of State.
"The commission would have powers to promote or undertake work on value for money and efficiency. It would thus cover some of the area of work of the Local Authorities Management Services and Computer Committee, and I intend to discuss this with the local authority associations.
"The commission would be self-financing, primarily from audit fees, as the audit service is now. Some increase in the present scale of fees would be required to accommodate the increased audit effort.
"A consultation paper setting out the details of
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this proposal is being issued today.
"My right honourable friend also intends to use his powers under the Local Government Act 1972 to appoint as additional district auditors members of private accountancy firms. We believe that their diverse experience will be helpful to local authorities facing the challenges of a period of declining resources. They will undertake the audit of the accounts for 1981–82 of a small number of authorities in England, working under the general supervision of the Chief Inspector of Audit. The authorities will be selected to give a variety of types of authority, geographical locations, and expenditure patterns. Their names will be announced in due course
"Mr Speaker, local government expenditure in England and Wales will be about £22,000 million this year. The need to secure value for money for such a scale of public expenditure is crucial. The Government wish to establish an audit system for the future which is well equipped to meet this need. We believe that the measures I have announced are the right way to achieve that system ".
That, My Lords, is the end of the Statement.
4.26 p.m.
Baroness Birk: My Lords, I thank the Minister for giving us the Statement this afternoon. The comments I shall make on it will include some of the points in the consultation paper because the two things go together and in this short period of time it has been rather difficult to gather them together.
The newly proposed audit commission is a much more expanded and expensive Quango which is replacing the present system of audit in local government. These proposals certainly appear to be a further and serious erosion of local government independence and accountability. In fact, paragraph 2 of the consultation paper rejects the unanimous advice of the Public Accounts Committee for a new national audit office under the Comptroller and Auditor General. It uses the following phraseology:
"In the Government's view, this would bring local authorities into a relationship with Parliament which was fundamentally inconsistent with their constitutional position, confusing their line of accountability at a time when the Government's aim is to strengthen their accountability in the direction in which it constitutionally lies, to their electors".
This is from a Government which unfortunately again and again—I say this sadly—in recent months have undermined the local accountability of elected local authorities. We have seen this running through every piece of recent legislation—orders, motions—which has come before this House and another place and has connection with local authority affairs.
Paragraph 18 of the consultation document makes it clear that under the new audit system the auditor will have extended powers
"to make an immediate report if he considered that a matter of public concern should be borough urgently to the public attention."
Does this mean public irregularities or the unlawful use of public funds? If so, we would readily support this proposal. Or does it mean that these new auditors will be empowered to make political judgments and to report upon areas of public policy where the responsi

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bility is from the local authority to its electors? I should be grateful if the Minister could tell me what are the criteria for "a matter of public concern".
In paragraph 20 of the consultation paper, the Secretary of State proposes to take powers to direct an extraordinary audit additional to those which already exist. Again I ask, what does this mean? What are the public interest criteria which the Secretary of State will apply? Again, is it in the area of public policy? If so, then the Secretary of State is not only taking away the powers of local authorities to appoint their own auditors; he is taking powers to direct the audit commission into areas of public political policy and controversy.
In paragraph 2 of the Statement, the Government say that they do not believe it to be right in principle that local authorities should appoint their own auditors. I would ask, whyever not? Most business organisations do so. These include the largest companies in this country. To paraphrase, I hope one can say that what is good enough for business is surely good enough for local government.
Value for money features largely in these proposals. No local authority in today's economic climate can possibly refute the necessity of research for value and economy. Research has gone on for many years and it is not new. Local authorities set up their own central organisation, LAMSAC, to head the search for efficiency, yet in paragraph 16 of the consultation paper the Government say that there is a case for transferring some of LAMSAC's work to the commission. The Government go on to say that they will discuss this question with the local authority associations. I very much hope that they do and that they will take their points of view into very strict account. In addition, when there is talk of an independent chairman of the commission being appointed I hope it will be done in conjunction with the local authority associations and that the local authorities will be represented in the majority on the Commission and not be relegated to a minor role.
I should like to ask the Minister what is the justification for appointing additional district auditors from private firms—paragraph 11 of the Statement. I believe it was done, with agreement, a year or so ago by Barnet and Sutton at a quite considerable extra cost to the ratepayers. Can the Minister tell us whether it was worth while and does it justify the extension financially in the coming year? In conclusion, we should like to know what is the estimated cost of these proposals, which the Secertary of State has said is going to involve some extra cost, and, even more important, what are the estimated savings which may be made.
Lord Winstanley: My Lords, on behalf of my noble friends on these Benches I wish to join with the noble Baroness, Lady Birk, in thanking the noble Lord the Minister for repeating the Statement. The noble Lord may be glad to hear that we do not take quite such a jaundiced view of the Statement as a whole as apparently does the noble Baroness, Lady Birk, although we do agree with her in wishing to oppose any further limitations on the freedom and autonomy of local government. Nevertheless, we believe that the mea
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sures contained in this statement may well prove in the long-run to be of benefit to local government and to those who depend on it.
However, we have one particular anxiety which the noble Lord the Minister may be able to relieve, and I will put one question to him. As the Statement appears to focus largely on value for money and the cost effectiveness of local government expenditure, we wonder whether the noble Lord the Minister would agree with us that it would be difficult for the commission to decide whether certain local government expenditure is in fact cost effective unless the commission is empowered to look at consequential effects on public expenditure in other areas. For example, if local government spends a lot of money on home helps it undoubtedly cuts down National Health Service expenditure, because it enables people to be discharged home who would otherwise have to remain in costly hospital or other institutional care. So my question to the noble Lord is that: Will the commissioners, in undertaking this very important task of looking at items of local government expenditure, have power to examine the consequential effects—savings or other wise—on Government expenditure in other areas?
4.34 p.m.
Lord Bellwin: My Lords, may I deal first with the points raised by the noble Baroness, Lady Birk. When she asks whether the new auditors will be empowered to make political judgments, the answer, of course, is clearly, No, any more than district auditors make political judgments now. The people who will be appointed through the commission will be district auditors: they have not made political judgments, nor will they, and I should not have thought that it was a matter for public concern that such outside expertise should be brought in. It should be a matter of some public relief, in fact, because although I pay great tribute to the work of the district auditor service, which I think does an excellent job (and I have not heard anyone say other than that), the fact is that in the main they have not concentrated on value for money exercises to the extent that we hope will be possible for others who come in and bring with them certain commercial expertise and knowledge. So that is one benefit which I think will be gained.
When the noble Baroness asks why should not local authorities appoint their own auditors, may I remind her that in the larger businesses it is in fact the shareholders who appoint the auditors, not the management as such. Management appoint them, but they have to be confirmed by the shareholders; so I would ask, who in fact is the shareholder in local government? Is it the ratepayer, is it the council staff, is it the councillors? I think really the question does not come off the ground at all.
The noble Baroness, Lady Birk, asked what justification there is for the additional auditors coming from private firms and was it worth while in the case of individual authorities who called in auditors to have a look. In fact they did not call in auditors as such; they called in management consultants to look at that aspect of their work, and only they will be able to say whether they felt that it was worth while in terms of what they received by way of advice. I could give opinions in one or two cases that I know, but I do not

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think that is something upon which I should embark now.
As to the last major question with regard to cost, it is difficult to say. We estimate that the cost of the administration of the commission will be something between £100,000 and £150,000 in a year. If the noble Baroness was referring to what will be the actual cost in each case to an authority and what would it be in total, clearly I cannot give her that answer, but I hope she will be satisfied to take into account not so much what it might cost but what it will save. Surely if it is thought—and it is—that a great prize is there to be achieved, then it is worth embarking upon.
Baroness Birk: My Lords, before the Minister leaves that point, may I say that I asked about the estimated cost. Obviously I did not mean to the individual authorities—the Minister is quite right there. And I asked about the projected savings. I should have thought that there must be some even fairly notional figure in the mind of the Secretary of State or the department when they are bringing this forward, because otherwise all we are left with are increased administrative costs.
Lord Bellwin: My Lords, if local government was able to save 0·1 of 1 per cent. it would represent £20 million, so when I said that there was a prize to go for I do not think I was exaggerating.
I took the point made by the noble Lord, Lord Winstanley, with regard to being concerned about the consequential effects, but I do not think he need worry unduly. The basic object of the exercise is, first, to help the district audit, as it is now, to bring in the know-how of private sector people with commercial expertise to add to the pool of thinking—and there can be nothing wrong with that. Basically, that is what it will be doing. It is not to take political judgments, which the noble Baroness was concerned about; it is certainly not to criticise the level of a service being provided, unless that is so excessive in some ways as to be clearly unreasonable, which is very rare indeed. In that sense it will not lead to the kind of concern that the noble Lord, Lord Winstanley, mentioned.
Baroness Gaitskell: My Lords, just now the Minister said that 1 per cent. of something resulted in whatever it was—I could not follow it. One cannot follow such a statement if one is not an economist. Unless the Minister can spell this out and say what 1 per cent. is, I am unable to understand or believe it. I apologise to the noble Lord for intervening at this stage, having not heard the Statement.
Lord Bellwin: My Lords, I am sorry that the noble Baroness does not believe what I say, but I was only giving an indication; I was not saying that this is the justification for the basic motivation of what we are doing here by appointing an audit commission. I was trying to indicate the opportunity that would exist for there to be general savings. However, I must touch on a point also made by the noble Baroness, Lady Birk, when she referred to accountability.
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That also is a major aspect of what we are looking for. I know nobody in local government—and I know as many people in it as most—who really objects at all to there being the maximum degree of accountability, and they have no concern that it should be a district auditor or anybody else who highlights what they are doing. They are always prepared to justify it and are usually well able to do so.
Lord Boyd-Carpenter: My Lords, is my noble friend aware that, notwithstanding the comments of the noble Baroness opposite, many of us are very glad indeed to hear this announcement of the strengthening both of the quality and of the independence of local government audits. In view of the enormous sums of money to which he referred, and in view of one or two unhappy cases in local government of which noble Lords are well aware, is my noble friend aware that many of us feel that this action is well timed and of very great importance.
Would he, however, reassure me on two points? Will the creation of this new organisation slow up, as centralisation sometimes does, announcements of auditors' decisions, because in local government time is so very important, and, as he knows well, things can go wrong in a matter of additional weeks. Secondly, will the very effective power of the district auditor to surcharge individual councillors who are responsible for irresponsible decisions persist tinder the new arrangements? Finally, will my noble friend join me, as a former chairman of the Public Accounts Committee, in saying how very much some of us admire the really splendid work which that Committee has put in on this extraordinarily difficult, complex and important subject.
Lord Bellwin: My Lords, I am grateful to my noble friend for his remarks and his encouragement. So far as the Public Accounts Committee is concerned, of course I think everyone is indeed glad that they look so closely as they do at this work. In fact I ought to have said to the noble Baroness, Lady Birk, that what we are embarked upon here with an audit commission in fact is not the recommendation of the Public Accounts Committee. Local Government would have felt—frankly we felt, too—much more concern had we gone the route that they proposed. Nevertheless, we felt that their basic concern and their recommendations for greater accountability and involvement in this way were very valid; hence the point of my noble friend, with which I very much agree.
On the two questions he put to me; first, will it slow up announcement of audtiors' decisions; I see no reason at all why it should; quite the contrary, because it is in fact in many ways supplementing the existing service, which hopefully should enable any decisions to be taken that bit sooner, although I would not like to make any commitment. But there is no reason at all why it should be slower as a result of what we are proposing. Neither should it have any effect at all upon the powers to surcharge councillors, happily a very rare occurrence. They will be exactly district auditors in any case, and they will have neither more nor less powers than the district auditors at the present time.
Baroness Stedman: My Lords, from these Benches we would also like to give a somewhat cautious welcome to the Statement and to the consultative document, which we have seen briefly. The noble Lord, looks surprised. I am sure there is no reflection intended on the integrity of the present district audit unit staff or indeed of LAMSAC, I hope there will be the widest consultation with the local authorities, particularly with regard to the work of LAMSAC and as to how much of that ought to be taken over properly by the new commission. I would ask the noble Lord to have another look at the date by which the reflections of the local authorities have to be in to him. The date given in the Statement this afternoon and in the consultative document is 15th September. Most local authorities, like Parliament, have a recess in August. That only gives them a bare two weeks to make up their decisions and to make their views known to their local authority associations. I hope the noble Lord is not going to be too hard and fast on the 15th September, and that he will, if necessary, lengthen it to get proper consultations with the local authorities. We also welcome the fact that the commission's annual report is going to be laid before Parliament, and if it is necessary there will be an opportunity for either or both Houses to discuss it. We would applaud anything that takes away the powers from the Secretary of State in the Local Government Act 1972, even if it puts them on to a new commission.
Lord Bellwin: My Lords, on the last point the noble Baroness, Lady Stedman, makes, the powers are the same and will be the same as they are now, neither more nor less. They are independent; the district auditor is independent. If anything, the new Commission will be less attached to the tenuous relationship there is at the present time with the Department of the Environment. As to the work of LAMSAC, I do know that this is a matter of concern. We can only decide it together with the local authorities, who, after all, pay half the cost of LAMSAC anyhow.
If the local authority associations feel that the date of 15th September is a difficult one to meet, I am sure they will make that known to us. This is something we want to do together because it is for the betterment of everybody involved. So without making any commitment—I know the noble Baroness does not expect me to—I would feel entitled to say that if the local authority associations feel there is great difficulty for their members we would want to know about it and consider it accordingly.
Lord Marshall of Leeds: My Lords, I think that most people concerned with local government will be very welcoming of this Statement made by the noble Lord. Would the noble Lord care to say that a view was taken by the Advisory Committee on Local Government Audit in regard to the Public Accounts Committee's recommendation, that the audit commission should be under the surveillance of the Comptroller and Auditor-General; the fact that he has announced that it is not going to be so will be greatly welcomed by those in local government.
Lord Bellwin: My Lords, I am deeply grateful to my noble friend, who quite properly reminds me that it was in fact the unanimous feeling of the Advisory
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Committee on Local Government Audit that it should be an audit commission in this way. While it would be fair to say that on some aspects they have reservations, in the main—and there are some very distinguished members on that body, not least my noble friend Lord Marshall—it was their unanimous view that they approved of an audit commission, albeit with reservations on some aspects, and they certainly thought it a more preferable route than the one through the Comptroller and Auditor- General.

British Nationality Bill
4.48 p.m.
House again in Committee on Clause 43.
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 141ZB:
Page 38, line 8, at beginning insert—
("Subject to subsection (1) herein,").
The noble and learned Lord said: I bee to move Amendment No. 141ZB. The purpose and aim of this amendment is that subsection (1) should be made to prevail over subsection (2) of Clause 43 of the Bill. Your Lordships will be very familiar with the two subsections. Subsection (1) reads:
"Any discretion vested by or under this Act in the Secretary of State … shall be exercised without regard to the race, colour or religion of any person who may be affected by its exercise."
That subsection is, or at any rate could be, a pivotal provision in the Bill.
But then, when one goes to subsection (2), subsection (1) is left in isolation; splendid isolation it may be, but ineffective. Subsection (2) provides that,
"The Secretary of State … shall not be required to assign any reason for the grant or refusal of any application under this Act the decision on which is at his discretion; and the decision of the Secretary of State … on any such application shall not be subject to appeal to, or review in, any court."
The proposal of the amendment is to insert the words, "subject to subsection (1) "at the beginning of subsection (2). I am gratified that already the noble Lord, Lord Boyd-Carpenter, and the noble and learned Lord, Lord Rawlinson of Ewell, have expressed at any rate sympathetic interest in what the amendment has in mind.
In our submission subsection (1) standing alone has merely cosmetic effect in the provisions of the Bill. If the circumstances shown to exist in a given case did establish or go to establish that the Secretary of State was not exercising his discretion in accordance with subsection (1), then the inclusion of subsection (1) in the second subsection giving it, so to speak, overriding effect on subsection (2), would at least give an opportunity to the complainant in such a case to have his case brought before the court.
I ask: Is the complainant in such a case to be left without any remedy whatever? If that is so, then the splendid words of subsection (1) would have no significance whatever in practice and would indeed, be something of a sham. I think it, therefore, imperative, if the Government's position on the Bill, that it is in no way discriminatory on grounds of race, colour or religion, is to have reality, that something must be done in Clause 43 to enable—and this is the purpose of the amendment—the matter to be opened judicially if the

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circumstances are such that there are indications from the factual position in a given case that the Secretary of State has not been exercising his powers without regard to race, colour or religion. I need not say that this bears no reflection upon the present Home Secretary in whom I have, of course, the utmost confidence. But this is legislation for the future. It is legislation affecting quite fundamentally the minority peoples in our community and accordingly I greatly hope that this amendment will be accepted by the Government. I beg to move.
Lord Mackay of Clashfern: In my respectful submission it is not right to speak of subsection (1) of Clause 43 as being in isolation, or even in glorious isolation; it is part of the whole provisions of the Bill. I am sure that the noble and learned Lord who moved the amendment would accept that it is one of the fundamental principles of the construction of any Act of Parliament that it must be read as a whole and that therefore the court in reading subsection (2) of this clause would read it in the light of all the provisions of the Bill, including subsection (1). I think that that is abundantly established on the authorities in this branch of the law.
That having been said, the amendment is seeking to say that subsection (2) is to be subject to subsection(1), There is an inherent difficulty in that particular formulation. These two subsections are concerned with different parts of the process of dealing with applications for citizenship which are at discretion. Clause 43(1)—what might be called the anti-discrimination provision—is concerned with the procedures leading up to the decision whether to grant citizenship. Clause 43(2), on the other hand, is concerned with what happens after the decision is made. It seems very difficult to provide that a provision affecting one part of the process should apply to a separate part of the process. That is, we believe, a fundamental objection to the amendment as it stands and likely to introduce confusion into the Bill rather than clarity.
Clause 43(2) is in two parts, the first part dealing with the question of assigning reasons and the second part dealing with the question of decisions not being subject to appeal to or review in, any court. So far as the second part is concerned, as I said, it seems to us that that exclusion will be read in the light of the whole provisions of the Bill. But so far as the first branch is concerned—the giving of reasons—I must say that I cannot understand how the noble and learned Lord proposes that that part of subsection (2) should be subject to subsection (1) or, indeed, what that means in the circumstances.
Accordingly, in so far as the noble and learned Lord has explained the purpose of his amendment, then the rules about context and so on, to which I referred, would seem to mean that, under the Bill as it stands, what he is looking for is very much already so. So far as the first branch of subsection (2) is concerned, it does not appear to make much sense, if I may say so, with all appropriate respect.
Viscount Colville of Culross: Whatever may be the effect on any other Member of the Committee, my noble and learned friend has thrown me into a certain amount of confusion. I would have tended to suggest
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to the Committee that it is not so much the glorious ioslation of Clause 43(1) that is the point, but the juxtaposition of it with Clause 43(2). When Parliament put into one and the same clause in a Bill that there should not be any appeal against a discretionary decision and at the same time that where discretion is used it must be done without regard to race, colour or religion, what court would not suppose that the two are to be read together in precisely the way that my noble and learned friend has said, but to precisely the opposite effect? In other words, surely most courts would be inclined to think that the provisions in subsection (1) were not intended to be subject to an appeal because of what comes in subsection (2). I do not think that that is what the Government want.
I do not see any reason why the Government wish to object—if there is the rare and conceivable case where you have actual evidence that a discretionary decision has been taken to the detriment of somebody because of his race, colour or regligion—that that matter should be precluded from being appealed. I do not think that that is what the Government want at all. I should have thought that they would underpin the concession which, in fact, subsection (1) consists of and which was added in another place.
Why will my noble and learned friend not take the point? I quite see that there might be something a little unworkable in the way in which the amendment has been drafted and it is probably not intended to relate to reasons, but the substance of it is something that needs to be made clear. As I said before, why do the Government insist that, instead of inserting a few simple words, they should leave a situation which is bound to lead, if it occurs at all, to massive and expensive litigation? What is the point of it? Why not make a small change and make the matter clear beyond peradventure?
Lord Boyd-Carpenter: I apparently jumped the gun on this point as regards the earlier amendment of my noble friend Lord Colville of Culross. I am bound to say that I found the reply of the noble and learned Lord the Lord Advocate on that occasion, though adroit and suave as ever, somewhat unconvincing. On this occasion I should simply like to ask him this question. Is it clear beyond peradventure that some person who, rightly or wrongly, has had the Home Secretary's discretion exercised against an application of his and who alleges that there is here an element of discrimination on grounds of colour, race or religion, could take this appeal to the court?
Lord Mackay of Clashfern: My answer to that is that to some extent it must depend upon the circumstances. But in an applicaton to the court to have the question determined, I should expect it to be argued in court that the protection afforded by the latter part of Clause 43(2) cannot apply to prevent review where it is suggested that the discretion which has been exercised is not a discretion which the Bill contemplates but something completely different. There may be other ways in which a discretion could be vitiated by considerations of that kind, apart from questions about discrimination under Clause 43(1). There may be inferences from other parts of the Bill or from general principle that would have that effect.

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Certainly—so far at any rate-I would suggest to your Lordships that the juxtaposition of these two clauses requires the court to do justice where there is proof that discrimination has taken place, although, as I said earlier, our view is that the existence of subsection (1) is simply declaratory of the position. We cannot contemplate that the Secretary of State, the governor or lieutenant-governor vested with this discretion would act in breach of subsection (1).
Lord Mishcon: In another place after some debate the Government conceded the general principle contained in subsection (1); that is, that so far as the Secretary of State is concerned there should be no discrimination in regard to race, religion or colour. That was greeted with some satisfaction by those who are anxious to see harmonious race relations in this country and who had regard to the unfortunate feelings—whether or not they are deserved—that there is some sort of prejudicial element in this Bill, because that concession was at least an expression of Parliament saying that in any circumstances before the Secretary of State there must be no question of discrimination.
Some members in another place felt that this was a cosmetic exercise and nothing else. As I understand it, the Government were extremely keen to say that that was not so and that it was meant to be a principle that is very firmly embedded in the Bill. If I may put it respectfully, they did not make a very good job of embedding the principle firmly in the Bill. Certainly they did not make a very good job of it by putting that principle in the same clause—and this has been pointed out by other Members of your Lordships' Committee—as a subsection which said that you cannot ask the Secretary of State for any reasons as to why he granted or refused and you cannot appeal to any court against his discretionary decision.
The noble and learned Lord can speak with that accent of which we are so fond until doomsday, but without any question of doubt he will not convince the Committee otherwise than to say that there must be some doubt about this. When an advocate is appealing on behalf of an applicant, he is trying to say to the court "Would you please look at this case and decide whether or not there was discrimination? "In his opening remarks he has to say "Of course, I could not ask the Secretary of State to give me particulars as to why in the case of Mr. X, who happens to be white, who lives next door to Mr. Y, who was in this country for precisely the same time, and who, indeed, works side by side with his white neighbour in the same factory and upon the same work, Mr. X was granted naturalisation or registration—whatever it was that happens to be discretionary—and Mr. Y was not.
Furthermore, immediately drawn to the court's mind would be the second part of this clause, which would say in very distinct terms that in any event there could be no appeal against the Secretary of State's decision, because it was a discretionary matter. The hearing would end in a nullity or a farce. I know that it would be a long nullity or a long farce if an advocate of the capability of the noble and learned Lord was acting in the matter and was appearing before the court. But a farce or a nullity is no less the case
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whether it be short or long, and it is the duty of this revising Chamber and—if I may say so with deference—the Government, to make the principle that was supposed to be embedded in the declarations in another place on this clause abundantly clear, and to say that in a case where discretion is alleged, without any question of doubt the applicant has the right of appeal and to deal with that matter before the courts.
All that I ask of the noble and learned Lord is this. We have heard three eminent lawyers upon this matter and one who is endeavouring hard before he leaves this world to deserve that title. If all four lawyers are of the view that this matter could not be debated before a court, or that it is very doubtful whether this discrimination matter could be debated because of the wording of Clause 43(2), then it must be the duty of the Government to say that at least they will take this clause back—unless the mood of the Committee is to be tested—and ensure that it is abundantly clear that on a matter dealt with by Clause 43(1) there is a right to have the matter investigated by the court.
The Lord Bishop of Rochester: Throughout the discussions in this Committee we on these Benches have been looking for assurances for those about whom we are concerned, who are fearful as to the consequences of this Bill and who, rightly or wrongly, misunderstand its motives and intentions. That is why we shall look forward with particular interest to the response at the Report stage to the amendments in the name of the noble Viscount which we have recently discussed, and why we think in this whole area involving the exercise of discretion it is very important indeed that there should be no doubt whatever as to the Government's intention. In the interests of clarity I would appeal to the Minister to take this back.
Lord Avebury: Perhaps I could say a few words in addition to the opinions that have already been expressed and with which I warmly agree, although it has been proved in practice that taking individual cases of discrimination before the courts or before any tribunal is not a very satisfactory way of asserting rights, because there can always be a multitude of reasons advanced as to why some decision has been made other than the question of race, religion, or colour. I anticipate that if the Secretary of State's decisions were queried or the governor's—and I agree with those who have said that we are not talking about the present Secretary of State—there would be a multitude of other reasons why he had declined to grant nationality, or to have exercised his discretion in favour of the applicant, under any of the other parts of the Bill where the powers are given to him.
What I want to ask the noble and learned Lord to tell me is this. If the Secretary of State's discretion is not to be questioned, does that also mean that a general investigation as to the way these powers are exercised by the Commission for Racial Equality would be legally impossible? My own opinion is that the general powers of investigation which we gave to this Commission for Racial Equality under the 1976 Act are a far better way of proceeding to examine discrimination over a broad area than the pursuit of individual complaints.
If the arguments that noble Lords have advanced are

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correct, that these matters are not capable of being tested in a court of law, then the same thing would be true of the general investigations that are conducted by the Commission for Racial Equality. It was not so very long ago that the Home Office sought to prevent the CRE from conducting an investigation of the way that the Secretary of State uses his discretion under the Immigration Acts. Fortunately, that was found not to be possible by the courts, and the investigation was pursued. If we leave this clause as it stands the same arguments could take place all over again, and not only would individuals find it difficult to pursue complaints in the courts but also any general investigation of the use of these powers would be declared outside the powers of the Commission for Racial Equality.
5.12 p.m.
Lord Gifford: May I briefly support what has been said by referring to the sense of bitterness which arises when somebody believes that he has been discriminated against for reasons of race or colour or religion; reasons over which in the case of race or colour he has no control, and in the case of religion should not be expected to play any part in the decision. When one is faced with a complaint of discrimination in other fields we now have a law which enables advisers to investigate whether there is evidence. I certainly have had experience of investigating allegations of discrimination against Government departments.
It is not a question of the integrity of the Secretary of State; it is a question sometimes of what is alleged against a particular official at a very junior level. Sometimes one finds there is no evidence, but sometimes one takes it to a court or tribunal and, whether or not the complaint is in the end found to be justified, the safety valve, the importance of having a forum in which this can be adjudicated, is of paramount importance.
I am bound to say with other noble Lords and noble and learned Lords that if a case of alleged discrimination came up against the Home Office under this Act I would hesitate indeed to advise someone that, even if there was a prima facie case, it was likely to succeed. The Treasury counsel, who are not slow to take points of jurisdiction and take points of this kind, would I am sure raise as a preliminary point that under this Bill there is no jurisdiction in the courts to review a decision however wrong or however unreasonable it may seem to be.
The Earl of Erroll: May I briefly rise to say that it seems to me that there is one thing that ought to be looked at on the religion side. There are certain sects in America who have some rather strange beliefs and who have been known to kill off rather a large number of people, and there may be moments when a Secretary of State has to exercise discretion. If these people have a total right of appeal on the grounds that they have been discriminated against purely because they belong to one of these extremely strange sects, that would not be right. I do not know whether elsewhere in this Bill there is any provision to stop this.
Lord Renton: May I just say to my noble and learned friend the Lord Advocate, as one lawyer to another,
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ubi jus, ibi remedium: where there is a right there has to be a remedy.
Lord Elwyn-Jones: I think that this might be the moment for us to come to a decision about this matter. I regard it as quite fundamental. What may have happened in the history of the Bill is that subsection (1) came in late in the consideration of the matter. It was accepted by the Government as of fundamental importance, but of course they did not marry it with subsection (2). On the contrary, as the noble Viscount, Lord Colville, has said—and he attached most valuable weight to the juxtaposition element here, and the noble Lord, Lord Boyd-Carpenter, sought an answer from the noble and learned Lord about the situation—where an applicant claims to have evidence of discrimination, is he to have no remedy? Is he to have no opportunity of coming before the court? The answer given by the noble and learned Lord was, "Well, it depends on the circumstances". Of course it does. If the circumstances justify the proceedings, he ought to have a right to proceed. Accordingly, I think that this matter ought to be tested.
5.17 p.m.
On Question, Whether the said amendment (No. 141ZB) shall be agreed to?
Their Lordships divided: Contents, 94; Not-Contents, 70.

CONTENTS

Airedale, L.

Hunt, L.

Ampthill, L.

Jacques, L.

Ardwick, L.

Janner, L.

Avebury, L.

Jeger, B

Aylestone, L.

Killearn, L.

Balogh, L.

Lauderdale, E.

Banks, L.

Leatherland, L.

Beloff, L.

Lichfield, Bp.

Beswick, L.

Listowel, E.

Birk, B.

Liverpool, Bp.

Bishopston, L.

Llewelyn-Davies of Hastoe B.

Boyd-Carpenter, L.

Lloyd of Kilgerran, L.

Brockway, L.

Lovell-Davis, L.

Bruce of Donington, L.

McGregor of Durris, L.

Buxton of Alsa, L.

Massereene and Ferrard, V.

Campbell of Alloway, L.

Mishcon, L.

Caradon, L.

Nathan, L.

Chelwood, L.

Norfolk, D.

Cledwyn of Penrhos, L.

Northchurch, B.

Collison, L.

Northfield, L.

Colville of Culross, V.

Oram, L.

Cooper of Stockton-Heath, L.

Oxford,Bp.

Craigmyle, L.

Peart L.

David, B.

Pender, L.

Derwent, L.

Phillips, B.

Diamond, L.

Pitt of Hampstead, L.

Elliot of Harwood, B.

Ponsonby of Shulbrede, L. [Teller.]

Elwyn-Jones, L.

Ewart-Biggs, B.

Redcliffe-Maud, L.

Gaitskell, B.

Renton, L.

Gardiner, L.

Rochester, Bp.

Gardner of Parkes, B.

Rochester, L.

Geddes, L.

Ross of Marnock, L.

Gifford, L.

Sempill, Ly.

Gladwyn, L.

Stamp, L

Gregson, L.

Stewart of Fulham, L.

Grey, E.

Stone, L.

Hale, L.

Strabolgi, L.

Hankey, L.

Strauss, L.

Hanworth, V.

Swinfen, L.

Hatch of Lusby, L.

Trumpington, B.

Houghton of Soserby, L.

Underhill, L.

Hughes, L.

Vickers, B.

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Wallace of Coslany, L. [Teller.]

White, B.

Wigoder, L.

Walston, L.

Worcester, Bp.

Wells-Pestell, L.

Wrenbury, L.

Whaddon, L.

Wynne-Jones, L.

NOT-CONTENTS

Allen of Abbeydale, L.

Ironside, L.

Auckland, L.

Kinnaird, L.

Avon, E.

Kinnoull, E.

Bellwin, L.

Lane-Fox, B.

Belstead, L.

Lawrence, L.

Bessborough, E.

Long, V.

Boardman, L.

Lucas of Chilworth, L.

Bradford, E.

Luke, L.

Brougham and Vaux, L.

Lyell, L.

Campbell of Croy, L.

Mackay of Clashfern, L.

Cathcart, E.

Macleod of Borve, B.

Cockfield, L.

Mancroft, L.

Coleraine, L.

Marley, L.

Cottesloe, L.

Marshall of Leeds, L.

Cullen of Ashbourne, L.

Milverton, L.

Daventry, V.

Monk Bretton, L.

Davidson, V.

Montgomery of Alamein, V.

De La Warr, E.

Mottistone, L.

Denham, L. [Teller.]

Moyne, L.

Eccles, V.

Newall, L.

Ellenborough, L.

Nugent of Guildford, L.

Elles, B.

Orkney, E.

Erroll, E.

Orr-Ewing, L.

Fairfax of Cameron, L.

Rawlinson of Ewell, L.

Ferrers, E.

St.Aldwyn, E.

Fortescue, E.

Saint Oswald, L.

Fraser of Kilmorack, L.

Sandys, L. [Teller.]

Gainford, L.

Skelmersdale L.

Gormanston, V.

Spens L.

Gowrie, E.

Strathspey, L.

Gridley, L.

Sudeley, L.

Hailsham of Saint Marylebone, L.

Thomas of Swynnerton, L.

Trefgarne, L

Henley, L.

Vaux of Harrowden, L.

Holderness, L.

Vivian, L.

Home of the Hirsel, L.

Resolved in the affirmative, and amendment agreed to accordingly.
[Amendment No. 141CZ not moved.]
5.26 p.m.
Lord Pitt of Hampstead Lord Pitt of Hampstead moved Amendment No. 141A:
Page 38, line 9, leave out ("not be required to assign any") and insert ("give in writing to the applicant his").
The noble Lord said: Following the great success we have just had, I hope we shall have another success with this amendment. I make no apologies for moving it. Though I have had a great deal of correspondence on the Bill, strange to say I have had more letters about the right of appeal against refusal of naturalisation or registration than about any other matter. I would not have expected that because there are other parts of the Bill about which I am personally more alarmed than the absence of a right of appeal. With permission, I shall speak at the same time to Amendments Nos. 142 and 142AA because in effect they are a package.
Along with the amendment which the Committee has just accepted, my proposal would mean that, instead of the Secretary of State not giving any reasons, he would have to give in writing to the applicant his reasons for exercising his discretion, except where national security was concerned. The Secretary of State could not be expected to give reasons in writing about matters connected with national security, so that aspect is excluded. But apart from matters of
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national security, he would give reasons to the applicant, who would have the right of appeal to a suitable court; the words I would use are "a court of appropriate jurisdiction" because that would enable the Lord Chancellor to determine the level at which this type of appeal should be heard.
The earlier debate on the question of discrimination on grounds of race, colour or religion shows how important it is that there should be some means of review. Under this measure and the Immigration Act 1971, we are bringing naturalisation and registration together, so that many more people will be affected by this whole matter than is the case at present. Today, it is merely a question of naturalisation; Commonwealth citizens who live here for five years will be able to register, and others will be able to claim that if they have their British nationality through, say, being Irish, they also can register.
Until now the discretion has related only to people who are being naturalised, whereas after the passage of the Bill it will apply also to people who are seeking registration. Therefore, a much larger group will be involved. It is necessary, in fact I think it is even in the interests of the Secretary of State, that there should be some form of review, so that people who are refused know why they have been refused and can be satisfied as to the grounds of the refusal. The establishment of some form of review machinery would mean that in the final analysis not only the people who had been refused naturalisation would be satisfied, but the community as a whole would be satisfied. The community would know that the matter had been properly investigated and that no one had been unjustly treated.
I hope that I am correct in thinking that, as a result of the amendment that we have just passed, if the grounds relate to race, colour, religion or sex, there will be an entitlement to enforce the right. I hope that I am correct about that. But there are other grounds on which people are refused naturalisation. I referred to one of the other grounds earlier when I tried to make it incumbent on the Secretary of State to state why he thinks that a person should not be naturalised because of his particular character. In other words, I tried to put the onus of proof on the Secretary of State to show that the person was of bad character. We shall put that aside for the moment.
I think that the people ought to know. For example, there might be a mistake regarding the information given to the Secretary of State. Perhaps there will be a mistake on the police computer. If there is merely a blanket refusal, with no explanation and no appeal, then there is no way to remedy the mistake. Therefore, I commend this package of amendments to the Committee.
What I am proposing is much tighter than the proposals of the noble Viscount, Lord Colville of Culross. In fact, had those proposals been accepted, I might have hesitated about putting forward mine. But I strongly hold the view that there must be some form of review. The value of my proposal is that it is quite straightforward. It places an onus on the Secretary of State, the Governor, or the Lieutenant-Governor—whoever is exercising the power—to indicate his grounds for exercising that power. It gives the applicant the right to appeal to a court on the basis that the grounds on which his application has been refused

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are wrong. That is a summation of what the recommendations would entail.
This is the right way to proceed. There would be no question about it. Anyone who applied to be registered or to be naturalised would know that, if he were refused, the grounds would be given, and if he thought that he had a right of appeal on those grounds he could go to court. That is quite straightforward, and I hope that the Committee will agree to support the amendment. I beg to move.
5.34 p.m.
The Lord Bishop of Liverpool: I support the amendments of the noble Lord, Lord Pitt of Hampstead, and I should like to speak to all of them. It has been argued from the Government Front Bench that discretion in fact gives the better deal to those who apply in one way or another—that they can be handled sensitively and flexibly, whereas if there is a machinery of appeal, everything becomes rigid. I want again to make a point which the noble Viscount, Lord Colville of Culross, made; namely, that everybody knows that there is already a route of appeal. If one can find a Member of Parliament, or can get together a campaign appeals will be made to the Home Secretary. Everyone knows that that takes place. It is an erratic course of appeal.
In an earlier debate during the Committee proceedings the noble Lord, Lord Avebury, said that he had personally been involved in 320 appeals and that 56 per cent. of them had been decided in favour of the applicants. There is in fact an informal, hidden route of appeal, and what so many of us in the Committee and in the country want to press is that there should be an open and clear method of appeal. If we were to put to the communities who feel to be most under threat the argument that a better deal would be obtained by way of discretion and hidden ways, I believe that they would ask us not to go that way, and would say that there should be an open and clear method of appeal.
However, there is the other side, and in this respect I still wonder whether the Government hear what is being said. This concerns the whole matter of suspicion and fear. What is being said to us is, "Trust the Minister". It is paternalism. I do not always use the term "paternalism" in a bad sense. There have been kindly fathers. There have even been kindly fathers in God. But fathers in God, and Ministers and Governments need to understand that people do not always trust them just like that. This approach ignores the deep suspicion which is felt in regard to the Home Office. I do not believe that many Members of the Committee understand how deeply the suspicion is held. I have friends in the black community—highly responsible leaders—who have always refused to have dealings with the Community Relations Council or the Commission for Racial Equality because those bodies were under the Home Office—the department which has responsibility for prisons, the police, and immigration. It is terribly important that, if we are to have an acceptance that justice is being seen to be done, there should be established an appeal procedure independent of the Home Secretary.
A subjective element is involved when the Minister
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has to say, "This is the kind of person", or, "This a good character". The White Paper referred to criminal activities which were not limited to those which had been before the courts, and in these anxious days through which we are passing, in which it is very clear that there is much suspicion which we would want to allay, surely it would be right to see that there is a clear route of appeal.
Lord Justice Templeman, speaking of immigration officers and other civil servants, said that without the nationality tribunal the disputed citizen is left to the Immigration Act, which confers fearsome powers on an immigration officer and prevents the effective recourse of an individual to the courts which administer justice in this country. Well, we are not talking about that exact point, but we are talking about the question of trusting civil servants and officers in instances where the reasons cannot be had out in the open.
I was very distressed when I heard the noble and learned Lord the Lord Advocate speak of resources and costs. I do not believe that it is our way in this country to cut our corners when the administration of justice is at stake, and if there is a cost involved I believe that we would all gladly pay it if it would allay fears of parents, children and families. It is not a party point that is being made. The Churches are concerned about the Bill and in particular about a proper appeals machinery. Bearing in mind our many contacts throughout the country, it seems to me that if the Bill is to go forward, it is very important that a clear appeals machinery should be part of it.
Baroness Birk: During our discussions on this matter in perhaps a somewhat different form earlier, it occurred to me that the people in this country and in other countries used to accept very readily what authority said, without questioning it. That is not so today. It is also a fact, I think, that many lawyers with the best motives in the world are extremely suspicious and concerned that a Secretary of State should not have to give his reasons in writing. I understand their concern. That is also something which has got built into the establishment in this particular area.
However, I think we have to look at this subject anew. We have heard from all sides of the Chamber and from the right reverend Prelate just now about the feeling of people in the country. I think we are all aware of this and I feel strongly that it is a proposal which should get support. However, I should point out to my noble friend that his amendment would also force the Secretary of State to give reasons for the granting of citizenship as well as for refusal. That is how it reads to me from the drafting of the amendment. I should have thought that giving reasons for the granting of citizenship was not only unnecessary but would cause a lot of work and may not be what was meant at all; but that does not alter the main thrust of the amendment, which deals with reasons for refusals.
In 1980, 1,119 applications for naturalisation and 204 for discretionary registration were turned down. Quite a large number of individuals are involved, and even if one took the view that one man or one woman should have the sole right to decide on these matters it would be quite impossible for him or her to be able to do so. So it must go further down the line and become an administrative, official or bureaucratic

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decision. I think it is important that the applicant should know the reason for the refusal. Why not? I cannot see that it will put the Secretary of State in any difficult position. The noble and learned Lord the Lord Advocate, in discussing the last amendment, said that every case is different. Every applicant may be different but he should know the reasons for his refusal. First, if he wishes to re-apply at a later date he ought to know what had held him up before. This could help to cut down and not necessarily add to the work involved. Also it is highly probable that some refusals are made on the basis of incorrect information. My noble friend Lord Pitt mentioned the question of mistakes having been made. We have to accept that. It does not mean that we attribute any malevolent motive to the Home Office, but people do make mistakes in every field of life and mistakes will be made here. Somebody may suffer for the rest of his life from being refused citizenship if a mistake is made in his case.
Then there are refusals which are made on the basis of incorrect information, and there is no possibility of the person being able to put that right unless he knows the reason why he has been turned down. Some may be refused because of a case of mistaken identity; there may be people with similar names and those names have come up in the computer and there has been confusion. Thirdly, there is scope for subjective judgment by a large number of people. However objective one tries to be—and I am sure the people considering these cases will do their best—a large amount of subjectivity must come into their decisions on certain occasions. It seems to me that with this important Bill—and it is many years since we have had changes of such magnitude in our nationality law—it behoves us all to get it as right as we can so as to allay people's doubts and to make it as simple and clear as possible for individual applicants to know exactly where they stand and to have the right to know why their applications for naturalisation or registration have been turned down.
My noble friend, in a further amendment, does insert,
"save where the reason relates to national security".
It could be argued there, though I would not take it as far as that, that people could be told that in the interest of national security they were being turned down. I do not know that many spies or people who are likely to cause damage to the country actually apply for naturalisation. I should have thought it was extremely unlikely, but I certainly would accept the proviso which I think would meet the objections of a number of Members on the Committee where the reason relates to national security. I hope this question will not be looked at from the Government Benches and by others with a shut mind or on the basis that we have never done it in a different way or because it has only been in the Secretary of State's parish, so to speak, to deal with these matters. I hope we shall look at it in the context in which this Bill ought to be looked at, as has been repeatedly said from all sides of the Chamber over many of the amendments.
Lord Home of the Hirsel: Since the noble Lord, Lord Pitt, moved all three amendments together, may I
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raise for the attention of my noble and learned friend a point raised by the noble Baroness, Lady Birk? Where does the Home Secretary's discretion now rest, as the Bill now stands, in cases of national security? Had my noble friend Lord Colville been successful in moving his amendment I would have asked him to include some words in it which would ensure that these cases are covered. I do not think that the amendment moved by the noble and learned Lord, Lord Elwyn-Jones, affected the security question; but there ought to be something in the Bill which covers this point. I have seen too many of these cases over a good many years not to feel that they could not go to court or to an appeal court. In many of the cases it certainly would not serve the national interest if all the facts had to be exposed; so I am not quite clear about this matter of security now. Could my noble and learned friend include in his reply on the general question an answer as to whether the discretion of the Home Secretary in relation to security cases is unimpaired?
Lord Avebury: That last point made by the noble Lord, Lord Home, gives rise to a further consideration: that is, whether the procedures we have had for looking at persons' characters have always been successful in the past. For instance, have any of the spies who have been convicted of offences been naturalised citizens of this country? I do not remember, for example, whether Mr. Klaus Fuchs, who was referred to at an earlier point, was a naturalised citizen. But I am convinced that some spies whose cases were dealt with in the early post-war years had become citizens of this country by naturalisation. So the assumption we are making that these cumbersome procedures built into this Bill in continuation of the processes that have always been in our law are a method of safeguarding this inestimable privilege of citizenship from undesirable characters, is not correct. There are examples not a million miles from your Lordships' House which we can think of where persons who have been granted our citizenship have subsequently been convicted in a court of law. So the procedures, while they take up an enormous amount of time and effort in the Home Office, cannot be said to be 100 per cent. successful.
The noble Baroness, Lady Birk, spoke about the thousand or so cases that were rejected over the last year of persons whose applications were refused, presumably on grounds of character, not because they had necessarily been shown to be of a criminal nature but for reasons of the kind we discussed earlier on, which may be completely trivial. One can only deal with cases which come to one's own attention and which one takes up with the Home Office, and so I do not know what the experience of other noble Lords is, but the few cases that have come to my notice have satisfied me that the reasons for rejection are sometimes of an extremely trivial nature.
I do not know what "good character" means. I do not know whether there is an internal definition in the Home Office and what instructions are given to the people who carry out the interviews. This is one of our problems. This is where we get to by departing from the objective tests which were set out in the Green Paper and which anybody could see. The noble Baroness said that what we ought to aim at is

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something which is simple and readily understandable by the applicants, and I would say by those who have to adjudicate on them as well.
If we had stuck to the recommendations that were floated in the Green Paper—the three objective criteria: that a person has not been convicted of certain kinds of criminal offence, that he is not an undischarged bankrupt and that he has not been found unfit to manage a company, with the added consideration of security that the noble Lord, Lord Home, rightly emphasises—then we should know where we were. We would not then have this enormous and cumbersome apparatus of examining every single case to see whether somebody's character fits into some pre-determined criteria which nobody will know about. I say that because it is the practice of the Home Office to issue secret instructions to officers who have to take these decisions in the name of the Secretary of State, and other noble Lords and I are not able to know what they are.
We do not know what the instructions are in the case of the Immigration Acts, so frequently we are at a loss to understand why a particular officer made the decision he did. Now there will be a parallel set of instructions. Another example I could have given was the standing orders and circular instructions which apply to the procedures which operate in prisons. We in fact have a copy in our Library here, but no member of the public is allowed to see them and no prisoner who is subject to those rules is allowed to see them, except that after the case of Silver and Ors. he can now get his Appendix 4 to the Commission's decision—a complete copy of the standing orders and circular instructions as they stood in 1977. But this is purely an accident because of the fact that somebody happened to bring proceedings before the European Commission. It would not normally be the case that anyone would have access to these secret instructions; and here we are going to be faced with a fresh set of instructions that the Home Office will issue, or they will simply continue the ones that are presently in force.
Officers will examine these to determine whether a person is fit to become our citizen, and he may reject him for a reason that never becomes known to the general public. For instance, what if somebody is "gay"? Is that a defect in his character which disqualifies him from becoming our citizen? I have not the faintest idea, and no one would ever know, if a person came for examination before an officer to see whether his character was suitable for this purpose and an immigration officer found that he was "gay", whether the instructions say that that is a disqualification and that perhaps he was being turned down on those grounds. He would never know, and the persons acting on his behalf, such as his Member of Parliament, would not be able to make representations that this was an unwarrantable exercise of the Home Secretary's discretion. So I think it is vitally important that reasons are assigned, and that the whole thing is brought out into the open. If the Minister is not prepared to go back and think about the question of objective tests, this is the only tolerable and fair alternative.
Viscount Colville of Culross: May I say to my noble
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friend Lord Home of the Hirsel that on the question of security the amendment I moved earlier on this afternoon of course dealt with the appeal on questions of entitlement, as to which I do not think security is a relevant critieria as I read the Bill. The earlier amendment that I moved last week, which was a form of appeal system against the discretionary exercise of the Home Secretary's power, including naturalisation, specifically did not provide for reasons to be given, which would have covered matters of security; so I did have the matter in mind.
Lord Home of the Hirsel: I would not dare challenge my noble friend on the law, but I thought that if you left out subsection (2) probably something else ought to be put in dealing with security; but I may be wrong.
Viscount Colville of Culross: What we are dealing with at the moment, as I understand it, are the acts of discretion, like naturalisation and a number of others in the Bill, and it is really because of my interest in the appeal procedure that I ventured to say a few words to the noble Lord, Lord Pitt, and those who support him, because I am a little unhappy about the way in which his amendments are drafted, and it would be less than consistent of me if I did not say so.
As the noble Lord will remember, I made a very strong appeal to my noble friends on the Front Bench when I was dealing with Amendment No. 141 last week to see whether we could find some form of acceptable compromise which would provide for an appeal system which they could fit into the administrative machinery that the Home Office wants to have. At the same time I recalled that in another place my right honourable friend the Home Secretary had said that reasons would in practice be given in a very large number of cases notwithstanding the provisions in Clause 43(2), which says that he need not give them. Certainly nobody on the Front Bench denied that, and I am sure that that is the case.
The difficulty with the group of amendments that the noble Lord, Lord Pitt, has put down seems to me to be exactly the same as I was explaining on the first amendment this afternoon. If you provide for an appeal in these circumstances to the courts, or to an appropriate court, or for an appeal and a review, you are going to be in exactly the same difficulty as that which I attempted to explain to the Committee earlier on this afternoon, which is that the court is not going to look at the merits of the case. They will not go into the facts all over again, for the reasons that I gave. They will simply ask, "Is this a decision that a reasonable Secretary of State could have come to, or not?", and if it is a decision that a reasonable Secretary of State could have come to, whatever that decision may be, they will not interfere.
So, with the greatest respect to the noble Lord, I think he is placing reliance in the wrong place if he thinks that by providing for an appeal to the courts in these circumstances he has got the answer. I do not think he has. I will not go into the whole matter again, but for those reasons, and since I hope very much that we may have a further dialogue with my noble friends on the Front Bench about this matter, I would urge him perhaps to consider this in the light of what has been said earlier on this afternoon, rather

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than press it today, because perhaps we could come back at the next stage of the Bill with something which would cover the whole of this area, and cover it in a comprehensive and satisfactory way.
Lord Gifford: My noble friend Lord Pitt has drawn our attention, I think really for the third time in this Committee stage, to the inadequacy of the appellate provisions of the Bill; and although the Government have said that they are going to look again at the appellate procedures so far as an entitlement is concerned, I think they have been very firm in resisting any kind of appellate review where discretion is concerned, and I am bound to say to the noble Viscount, Lord Colville, that I would much prefer even the limited review of Order No. 53 to no review at all, which is the proposal in the Bill.
I have made one speech already—I think it was many weeks ago—on Clause 5, when I urged the Committee to recognise that it was far better for these matters to be decided by some form of judicial open process than through the secret processes of the Home Office, where even Members of Parliament cannot be told the reasons why certain decisions have been taken, so that their power to make representations is very limited. I will not repeat what I said, except that I asked a question in relation to procedure in other countries, where it is not unheard of for there to be a proper appellant provision, even in discretionary cases. The United States allows for appeals to the courts when naturalisation has been refused by the appropriate federal Secretary. The United States is a country where respect for forms of challenge to administrative decisions is well developed. I asked on an earlier occasion, what is wrong with the provisions made in the United States? Or in Canada, where I believe there is reference to a tribunal? Have the Government looked at these other jurisdictions and can the Government really tell us that they do not work? If so, why do they not work? I wonder whether an answer will be forthcoming on this occasion?
Baroness Elles: I should like to support the principle which has been so eloquently put by the noble Lord, Lord Pitt of Hampstead, and at the same time to support the reasons which were given by my noble friend Lord Colville for not being able to accept the amendment in the form in which it has been drafted. In a democracy, surely no form of public measure should be without some form of public control, so that an individual can know why he has been treated one way or another? It is for this reason that I support some form of judicial review as outlined by my noble friend Lord Colville.
I believe it is also true to say that your Lordships' House alone (a legislative body having the most balanced membership that one can find in the country) has made passionate pleas for certain black citizens—rightly; passionate pleas for white citizens who do not live in this country—rightly; and other passionate pleas and remarks on entirely emotional grounds concerning certain sections of the world community. In this House alone we have over the past few weeks shown an amazing amount of prejudice one way or the other. I do not imply anything derogatory in my use of the word "prejudice", but if we in this House can show
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our prejudices and feelings can we really expect officials in the Home Office not to do the same? It is for these reasons that I support the principles put by the noble Lord, Lord Pitt of Hampstead, and also the remarks made by my noble friend Lord Colville.
Baroness Hornsby-Smith: There is another side to this case. I was privileged to serve in the Home Office and had responsibilities in the immigration department for three years. I was aware of certain cases being turned down for naturalisation. In the case of somebody who comes to this country, possibly on a work permit applied for by a company of standing because the person concerned has special skills, no profound investigation is made into his past. That person may obtain his work permit and then stay in this country for many years. However, when he then applies for naturalisation, after a considerable term of years, a much wider investigation is made. I have known cases where the individual's alleged country of birth was entirely false. I have known cases where the individual had a substantial criminal record. Do we really want to expose all this and make the man worse off than when he started? I have known of a treble bigamist—at least, a double bigamist because one of the marriages was right and two were wrong. Would we have to tell his other poor wives? Many people are turned down for far more serious reasons than many noble Lords have given us credit for, and probably their announcement would mean that the person concerned would no longer be able to stay in this country at all.
6.5 p.m.
Lord Belstead: I listened to my noble friend Lord Colville and it may or may not be that the noble Lord, Lord Pitt of Hampstead, will feel that as a result of my noble friend's speech it would be right to ask for the decision of the Committee this evening on these particular amendments. None the less I believe your Lordships would expect me to answer the main thrust of the amendment which the noble Lord has moved, namely, Amendment No. 141 A, which is that reasons should be given to the applicant in writing so far as decisions on discretionary cases is concerned—and, of course, your Lordships have confined their remarks to naturalisation cases. When taken with Amendment No. 142A, the effect of the amendment now before the Committee would be that national security cases would be excepted from the effect of the amendment.
My noble friend Lord Colville very fairly referred to the practice which he knew from the time he worked in the Home Office, of trying to give reasons wherever possible. It is a fact that over the years reasons for decisions on applications for citizenship have been given wherever possible—particularly in cases where it is felt that if a reason is given the applicant will be able to overcome the difficulty. Indeed, my right honourable friend the Secretary of State said in another place at Report stage that we are particularly concerned that, where it is possible for the applicant to put the matter right, he or she should know why the application has been refused so that the applicant may have the opportunity to take action before applying again. We are constantly reviewing the matter and considering whether more can be done in order to help applicants in this respect. After the Bill comes

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into force we fully intend—and I give this assurance—to continue what I believe the Committee would feel to be a positive approach to the question of giving reasons.
The Committee may ask, why not accept the amendment? What is wrong with the amendment? There are cases where the giving of reasons is not so easy and where matters are not so clear cut; where refusal is for a combination of factors. For instance, an applicant may have criminal associations which have not as yet led to charges and convictions but may well do so. There may be another instance where an individual's financial reputation and dealings may be dubious, to say the least; yet the matter has not yet been before the courts. In such cases giving reasons would be very difficult indeed. There would be endless wrangles which could not be satisfactorily resolved. Indeed, the work of those who would be responsible for following up the supposed improprieties—the police or other authorities—could be hampered, since the individual would immediately be put on notice that he had been spotted and was the subject of inquiry. I say these things seriously, and I believe they must be looked at seriously.
The noble Lord, Lord Pitt of Hampstead, also spoke to Amendments Nos. 142B and 142C. These two amendments go a little further. They would have the effect of enabling applicants refused citizenship by grant to appeal to an appropriate court against the refusal or to seek a review of the refusal in a court. Once again, despite the remarks made by my noble friend Lord Colville, I must reply on the principle of the matter.
Naturalisation in this country—as in many others—has always been within the gift of the state. It used to be a matter within the grant of the Sovereign, and then the powers to naturalise were exercised by Parliament. Since it has long ceased to be practical for naturalisation to be granted by Act of Parliament except in very rare cases, the discretionary power has now come down to my right honourable friend the Home Secretary. This power has been vested in the Home Secretary by Parliament since 1844. In reply to my noble friend Lord Home of the Hirsel, this general discretion covers, and would continue to cover if the Bill is left unamended, security cases.
There are inherent difficulties, here again, in reconciling a system of appeals (which would be the effect of those two last amendments to which the noble Lord is speaking) with the requirement for naturalisation: notably, naturalisation if you take good character into account. I realise from his speech that the noble Lord, Lord Avebury, would not wish to take it into account. There it is; we must agree to differ.
The discussion paper of the previous Government, to which I have referred before, said this:
"It is questionable whether it would be apt to have an appeals system if good character assessed in each case by analysing all the factors involved were to remain the criterion for citizenship".
The reason I quote that is that it was a passage from the Green Paper which again was based on some pretty hard practicalities: where for instance an applicant has serious criminal convictions and is considered to be generally unsuitable. In such cases, I wonder whether the personal referees would be very keen on having
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what they had put in in confidence about somebody then distributed for all and sundry to know.
More importantly, the police would be reluctant to have information divulged to them in confidence set out in their reports so that everybody knew what it was that they had said about an applicant. The police would feel themselves restricted in the information that they could include in their reports. My noble friend Lady Hornsby-Smith—again with her experience of the Home Office in previous years—was absolutely right to say that in addition she really wondered whether it was in the interests of the applicant himself or herself.
I know that the right reverend Prelate the Bishop of Liverpool said that it is wrong to look at the matter on resource grounds, but I am sure that he would understand, even though he may not agree with me, when I say that I am adding this as an extra argument on what I hope are the arguments that I have put already. There is the problem of resources. The courts have already heavy burdens and it could add to delays on matters which frankly are very pressing indeed in the courts in this country today. The machinery of justice is under enough strain without thrusting further burdens upon it. Yet the only feasible alternative—the immigration appeals machinery—is equally stretched and it is extremely unlikely that additional resources could be found to meet the costs of an appeal system on citizenship as part of that machinery.
I know perfectly well that this Committee thoroughly dislikes the argument of administrative convenience. Therefore I return to where I began, which is how things stand under the machinery as it exists at the moment. May I give as good a reply as I can to the question which the noble Lord, Lord Gifford, asked and say that there are many other countries in which the good character requirement is undefined and the grant of naturalisation is at discretion. Certainly I know of Australia, Belgium, Greece, India, Italy, the Netherlands and New Zealand. Although the noble Lord spoke of the United States, the naturalisation law there indicates that certain categories will not be regarded as of good character.
In the same way as the Government in this Bill are not attempting to change the law so far as discretion on naturalisation is concerned, we are not departing from the general discretion which is to be found in many other countries. Canada has a different system. I am saying that some countries have one and some another. It is reasonable for me to draw attention to the fact that we are not unusual or different in this respect, and it is reasonable, if I may say so, to say that the system in this country works.
In very many cases the truth of the matter is that the remedy for someone who is refused a naturalisation application lies with the applicant himself or herself. What happens is that the reasons are given and the applicant then re-applies. What would happen under the amendment is that we should find that there would be appeals which might not be necessary. We must not lose sight of the fact that it would mean more burdens placed upon the courts. I ask the Committee to look at the real problems as well as the advantages. This is a matter of balance. I would not come before the Committee and suggest it was not. I ask the

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Committee to look at the problems as well as the supposed advantages of the amendment which the noble Lord, Lord Pitt, has put forward. I therefore ask the noble Lord, Lord Pitt, to think again before he asks that the matter should go to a Division.
Lord Pitt of Hampstead: I have been thinking long and hard. I was listening in the hope that the Minister would give me an assurance. I pointed to the number of letters I have received. It shows that many people are worried that naturalisation and registration is subject to the discretion of the Secretary of State and there is no appeal. They feel there should be some machinery which would enable them to appeal against the decisions. I was hoping the Minister would say that at least they were going to contemplate some form of appeal machinery. The Minister answered me without at any stage saying that. I regard that as of the utmost importance. We need to reassure the people who are worried. One of the ways we can do that is by saying that there is some form of review machinery which would enable anyone who is refused naturalisation or registration to have his case reviewed.
I took the point made by my noble friend Lady Birk. I circulated a manuscript amendment, which the Table refused to accept and which I would have moved on Report stage. It was never my intention, frankly, that there should be a reason given in writing for the granting of naturalisation. It was always my intention that there should be reasons given when naturalisation was refused. As the noble Lord, Lord Gifford, pointed out, there is appeals machinery in the United States, Canada and Sweden. I cannot understand why the Government feel so strongly that there should not be an appeals machinery in this country. The point made by the noble Baroness does not hold water. If a man has such a bad character that he receives a reply from the Secretary of State saying, "We will not naturalise you because of X, Y and Z", he is not going to appeal; he is not going to allow anybody to know about it. The only people who will know about it are those in the Home Office and perhaps legal advisers. Therefore the problem would not arise.
The people who will appeal are the people who feel aggrieved when they receive a reply saying that their application for naturalisation or registration is refused because of X, Y and Z. If they think that X, Y and Z are wrong, they are going to appeal. If the grounds—and I take the Minister's point—can be remedied, they can apply again and they will not appeal. The people who will appeal are the people who feel aggrieved.
This Bill has caused so much controversy. There are so many people who are concerned about it and the degree of controversy to my way of thinking is exaggerated. That does not alter the fact that there are many people in this country who are in fact very concerned about the Bill. It is the duty, as I see it, of this House, to try to assuage some of these fears and do some reassuring. I am sorry that the Minister does not feel he can join me in doing this. I must say that unless the Minister can now assure me that the Government are going to contemplate some form of review by report stage I must take this amendment to a Division.
The Deputy Chairman of Committees (Lord Nugent of Guildford): Tellers for the Contents not having been appointed, a Division therefore cannot take place and in accordance with Standing Order No. 52, which provides that no proposal to amend a Bill in the form in which it is before the House shall be agreed to unless it has a majority in favour of such an amendment, I declare the amendment disagreed to.
[Amendment Nos, 142 and 142A not moved.]
6.25 p.m.
Lord Mishcon Lord Mishcon had given notice of his intention to move Amendment No. 142AA:
Page 38, line 11, leave out from ("discretion") to end of line 14.
The noble Lord said: I wonder whether I may have the agreement of the Committee to speak very briefly both on Amendment Nos. 142AA and 142D.
Lord Pitt of Hampstead: I said it was not moved.
Lord Mishcon: I am sorry; I was speaking to Amendments 142AA and 142D because I understood that 142AA had been called.
The Chairman of Committees: I called Amendment 142AA.
Lord Mishcon: I find myself in order, which is an unusual situation for me. As your Lordships will appreciate, both these amendments deal with the question of appeal. I am hoping, as I believe many people on all sides of your Lordships' Committee are hoping, that the general question of appeal, both on entitlement cases and discretionary cases, will have the consideration of the Government, whatever the procedure for appeals. It would be much more convenient and I believe that was in the mind of my noble friend Lord Pitt when he decided not to force the Division: that having heard an expression very definitely of the view of the Committee, certainly in many quarters, the Government would consider the whole question of appeals, be it on discretionary cases or entitlement cases, and would be courteous enough to inform those of us who have participated in a major way before the Report stage as to what their conclusions are. Then it would be open to us either to voice gratitude to the Government or to express our views in another way by putting appropriate amendments down at the report stage. In that hope, in the same way as my noble friend decided, I do not propose to move these amendments or to weary the Committee with any further speeches on the question of appeal.
[Amendment No. 142AA not moved.]
[Amendments Nos. 142B, 142C and 142D not moved.]
Clause 43, as amended, agreed to.
Clauses 44 to 48 agreed to.
Clause 49 [Interpretation]:
[Amendment No. 142E not moved.]
Lord Aylestone Lord Aylestone moved Amendment No. 143.
Page 42, line 29, leave out ("and").
The noble Lord said: In the temporary absence of my noble friend Lady Vickers, may I move this

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amendment on her behalf? The amendment deals with the Falkland Islands, in a not dissimilar way from the position we had last week in respect of Gibraltar. It is a smaller problem in the sense that the Falkland Islands have a population of fewer than 2,000, whereas of course Gibraltar has a population of about 30,000. The Falkland Islands are probably 8,000 miles away from us with, as I have said, 2,000 people, all of whom are British—probably more British than we are—all of whom speak English, using our type of coinage and regarding themselves as a part of this country.
The problem about the Falklands is their relationship with, and nearness to, Argentina. But it is my view—and I hope it is the view of noble Lords on both sides—that this amendment will in no way affect, exacerbate or improve the political situation that has arisen between Argentina and ourselves. The Falklands are too small for independence or they would not be in this group. In expressing the hope that the Government will accept this amendment, I ask them to consider these people who are living a long way away, under some kind of constant threat—I would not put it any higher than that—who will, at no time, have any desire to uproot and move to this country for permanent residence.
I accept that if the amendment is carried they will have the right of abode here, but the Immigration Acts cover any form of immigration. However, it is unlikely that there will ever be any movement from the Falkland Islands for residence in this country. So I hope that the Committee will give this amendment the same kind of consideration that it gave to the position of Gibraltar. It will not harm our relationship with Argentina, but it will help to reassure those very few British people, who are so many miles away, that we have not forgotten them and they will be able to regard themselves, as they want to regard themselves, as first-class British citizens. I beg to move.
Baroness Vickers: I should like to thank the noble Lord, Lord Aylestone, for moving this amendment. I just slipped out for one moment and I did not know that other amendments were not going to be moved. Noble Lords will see that this amendment has all-party backing. The only difficulty is that, so late at night, we may not have so many people here to support it as we should wish.
I should like to draw the attention of the Committee to what was said by my noble friend Lord Soames, when he intervened in the debate the other day on Gibraltar. He said at col. 265:
"but I hope that she"—
that is, myself—
"will not forget that the whole purpose of the Bill is to alter British citizenship to those who are specifically and intimately connected with the United Kingdom, and only with the United Kingdom".—[Official Report, 22/7/81.]
I should have thought that that proved the whole point, because who can be more connected than they are, by descent? I hope that this will be taken into consideration.
I understand that, according to the 1981 census, there are 1,710 people living in the Falkland Islands; that is to say, 94 per cent. of the total are British.
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These islands are unique because, when the British went there in 1833, there was no indigenous population; in fact, there was nobody at all living on the islands. Therefore, I suggest that these people are our own kith and kin, our own people. Some families have been there for six generations and one for eight generations. All are, by birth, British and they have never had any language other than English. They are as British as anybody living on the Isle of Wight. Some even have crofts in Scotland and, when their sons take over their sheep farms in the Falklands, they retire to Scotland. They live on their pensions and do not cost this country any money at all. One of them has a croft on Uist.
There are other people on the islands who never wish to become British and never could be. There are 24 Americans, of what is known as the Birhi sect, who settled there in 1948; there are four Australians, four Canadians and five New Zealanders, who will naturally wish to retain their own nationality. There are also 30 Argentinians who go there to deal with the airways, but stay only a short time and then return to their own country. In addition, there are 27 Chileans who go to work on the roads and they, too, go back to their own country.
As was said by the noble Lord just now, there is no question of these islands becoming independent, but all the inhabitants are of British origin and have no other mother country. They are all descendents of English, Welsh, Scots and Irish people. I understand—the Minister will correct me, if I am wrong—that the original service pensioner settlers were promised the right to retain full British citizenship. Therefore, I hope that they will be given the full rights of British citizenship, with the right of entry and abode in their own country, which I suggest is the United Kingdom.
For example, I should like to suggest that the islanders should have the same rights as people living in the Channel Islands and the Isle of Man; though, in the last fortnight, there has been a change in the case of the Isle of Man, because it has decided to take another status and become a Crown Colony of Her Majesty the Queen, and not to be under the Home Office. So I suggest that since we put down this amendment there has been a slight change. Anyhow, the Falkland Islands could be classified in the same way as the Channel Islands.
In an undated letter from the Minister, Mr. Timothy Raison, it was stated:
"The law on nationality must be related to such matters as an individual's place of birth and parentage".
I suggest that, on that basis, the Falkland Islanders qualify. Also in this letter it is stated that, in the event of an emergency, sympathetic consideration would be given to the position of the Falkland Islanders. I am just wondering why they need sympathetic consideration. Is it because of some doubt about their origins, in view of the fact that in 1836 all their records on the islands were burnt and that, by mistake, the copies were also burned in England? As they do not have adequate records, that may be why they need sympathetic consideration.
I hope noble Lords will not think that I am trying to cash in on the decision made about Gibraltar, because I think that this amendment should be judged on its merits. This amendment is concerned with only 300 to 400 adults and their children. I should like to

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assure noble Lords that the immigration laws on the Falklands are even stronger than they are here. In fact, when I suggested not long ago that, as they were short of population, they might take some Vietnamese people they were very shocked indeed, and certainly did not accept my suggestion at all. As I said, a fortnight ago the Isle of Man voted to separate itself from the British Isles and to become a fully self-governing country and one of Her Majesty's Crown Colonies.
The Channel Islands are not part of the United Kingdom, but they are so defined in the Bill because they are Crown possessions and inhabited by British people, as are the Falkland Islands. The latter are, regrettably, often forgotten by the British people. I wonder how many British people know where the Falklands are, as so little interest is taken in them. People do not know about the Falklands because, being 7,000 miles away, they are not near enough—like the Channel Islands or the Isle of Wight—to take their holidays there. So I hope that, before making a decision, your Lordships will consider that those 300 to 400 people form a loyal part of the Commonwealth.
Finally, we must remember the service they gave in the wars, especially in the 1939–45 war. When HMS "Achilles", "Ajax", and "Exeter" were stationed there before the Battle of the River Plate, they were very well looked after. After their famous victory, which noble Lords will remember, they returned to Port Stanley in the Falklands. HMS "Exeter"—a Devonport ship that I knew well—limped back and was very well looked after. There were a great number killed in that action, but the others were well looked after. There were 49 wounded, four of whom died in the Falklands. I think that this River Plate action gave us the first incentive, the first hope that we might win the war, and we owe a great deal to the Falkland Islands. I suggest that if we do not eventually, or even tonight, accept this amendment we are abandoning our own folk and I hope that noble Lords will consider this when the Minister comes to reply.
Lord Avebury: As has been pointed out, this amendment does have all-party support, and my noble friend Viscount Thurso would, I am sure, want me to say just one word or two in support of the noble Lord, Lord Aylestone, and the noble Baroness, Lady Vickers. Although I would agree with her that the amendment stands on its own merits, none the less an argument which the Government might have used if it had not been for the vote on Gibraltar is now no longer available to them because the principle has been conceded that it is possible for one of the dependencies to have the same citizenship as the United Kingdom itself. I think that is an extremely important factor, apart from the great merits of the principle of self-determination which is the really important aspect of this amendment. As the noble Baroness has said, there are 1,700-odd people in these islands who unanimously wish to remain British. After all, if we accept that the people of Northern Ireland can have a plebiscite and can declare that they will remain part of the United Kingdom and they do not wish to be transferred to the Republic of Ireland, what is the
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difference between that and the people of the Falkland Islands making a similar declaration—except for distance? One hundred per cent. of the people of the Falkland Islands wish to remain British, whereas in Northern Ireland it is only something like 60 per cent. I think that if we are going to abide by the principle of self-determination we have to pay careful regard to the wishes that the people there have expressed.
The other point which I wish to make briefly relates to the remark of the noble Lord, Lord Aylestone, that he does not believe that if we pass this amendment it will damage the relationships between our country and Argentine. I am not interested in appeasing the dictators of Argentina. I think it is our duty to make sure that the people who live in those islands are given the support of British citizenship so that they will know that it is not the intention of Her Majesty's Government to hand them over against their will to a particularly repugnant military régime which massacres many of its own citizens. I think they may well have legitimate fears of what would happen if Argentina took over in the islands and established the sort of terror there which in the last five years of the régime, first of General Videla, and now of General Viola, we have seen operating on the mainland. I very much hope that this will receive all-party support and that we shall support the people of those islands who have been so loyal to this country over 150 years.
6.43 p.m.
Viscount Massereene and Ferrard: I should like to support this amendment very strongly. I have had two Falkland Island shepherds in my time, and I could never have had better shepherds. I know that that is no reason for supporting the amendment, I can, however, understand the Government's point of view. Of course, it is far more tidy to have all dependencies treated in exactly the same way, but it is actually very difficult to be tidy when you are dealing with human beings. Of course, now that we have had the vote on Gibraltar the tidiness has been rather ruffled, so I hope my noble friends on the Government Front Bench will make an exception regarding the Falkland Islands. After all, as my noble friend Lady Vickers said, it is only going to affect three or four hundred people, which is really a storm in a teacup. I think the Government ought to accept this amendment.
I would go further and say that under this Bill the Channel Islands are going to be part of the United Kingdom because they are a Crown possession. So are the Falkland Islands a Crown possession. The Channel Islands, after all, have quite a lot of people of French descent in them—not that I object to that—but the Falkland Islanders are of pure Scottish descent. There is an old saying that blood is thicker than water, but this Bill does not support that, because, under this Bill, Britons by descent do take an inferior position to Britons who are naturalised or registered, which I think is a pity.
I should like to finish by drawing your Lordships' attention to what Lenin said. I have always made a study of Karl Marx and Lenin and all their writings, and Lenin wrote in 1921,
"The only resistance to our world domination by Communism will come from the Anglo-Saxon race".

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Of course by "Anglo-Saxon race" he was including the Celts. What he meant was the Anglo-Saxon race throughout the world. He then went on to say,
"Therefore, the race must be driven back to their own country and then destroyed".
He does not say how we would be destroyed. There are many ways of destroying a race, but we will not go into that. I would just add a further plea to the Government to accept this amendment, and if they do not accept it I would ask that they take it back and consider it, and I sincerely hope that they will accept it at the Report stage or at Third Reading.
Lord Mishcon: I am able to make a more objective speech than the noble Viscount who has just spoken. I cannot think, if I may say so to your Lordships, of a speech more opportune before tomorrow's happy event, because I am quite sure that the noble Viscount will be able to go home tonight knowing that his recorded speech in Hansard will do much to unite the British Commonwealth of nations in a way they did not anticipate being united before his speech was made.
So far as my noble friends and I are concerned, we generally support this resolution It is our view that loyal people everywhere, whatever be their colour and whatever be their ancestry, who want to be part of our family should, indeed, be part of our family. So far as the Opposition is concerned, we only wish that there were not categories of citizens in this Bill and that there was one category alone. Having said that, I think I have said everything that I want to say at the moment on behalf of the Opposition.
Lord Beloff: I think it is necessary, before we decide how we deal with this amendment, to be quite certain of the international context in which we are proposing to act, because the demand of Argentina for sovereignty over the Falkland Islands is not, as the noble Lord, Lord Avebury, suggested, an affair of recent and, no doubt, deplorable military dictators; it goes back for a very long time indeed. When I visited Argentina on a lecture tour for the British Council 17 years ago I was asked to call on our embassy in order to be briefed on the position we took with regard to the Falkland Islands because I was rightly told that whatever the subject I might be giving in my lectures somebody was going to ask about the Falkland Islands.
Lord Avebury: I did not mean to imply that the claim over the Malvinas, as they call it, was of recent origin, merely that the people of the Falkland Islands might have heightened anxieties about the consequences of an Argentinian takeover because of the nature of the régime which rules that country at the moment.
Lord Beloff: I am quite in accord that their anxieties are greater than ever, but their wish has always been, for the reasons which the noble Baroness gave, to remain part of the British family and not to be transferred. The question which is before us is, how can we best reassure them of our intentions to make that wish effective without giving a new impetus to the Argentinian campaign, which no doubt will in any event be prosecuted. It is a question of what this conferment of
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British nationality on the inhabitants of the islands would mean.
It could be argued, as the noble Lord, Lord Aylestone, said, that since this in fact entitles them freely to come and reside in this country they might be alarmed at the thought that we propose precisely to hand over the islands at some future point and that we are merely offering them asylum in this country, supposing we were to take this view. So one is not absolutely certain—and I should like to be reassured—that the Falkland Islanders would really wish for this, rather than for some other form of association with this country. Merely to take it on the Britishness, the desires of the islanders, though important, is wrong unless we realise that this is a matter which will be followed up by Argentinian governments of any complexion.
Lord Jenkins of Putney: To underline the widespread support for this amendment, I should like to say a word from these Benches in favour of it. Various reasons have been given in different parts of the Committee for supporting the amendment and I wish to go along with all of them. The argument which has been put forward that if what has been decided in relation to Gibraltar is correct then it is difficult to resist the propriety of this amendment, seems to me to be extremely persuasive. Apart from the question distance, the arguments which persuaded the Committee in relation to Gibraltar are even stronger in relation to the Falkland Islands.
In particular, so far as Gibraltar is concerned, if the worst came to the worst and the Gibraltarians were to disappear into the hands of their near neighbour they would disappear into a state which at the moment, though possibly precariously, is a democracy, a constitutional Monarchy. If, however, the Falkland Islands were to disappear into the hands of the Argentinians, they would, as the noble Lord, Lord Avebury, has pointed out, be falling into the hands of a military dictatorship, one which practices torture as an instrument of state and of repression, as has been made abundantly clear in the press just recently. For all these reasons, it is my hope that when he comes to reply the noble Lord will say that he feels able to accept the amendment. If he does not feel able to do so, it is my wish that the noble Baroness will press the matter. If she does, I shall be happy to follow her into the Division Lobby.
Lord Geddes: The precedents just instanced by the noble Lord, Lord Jenkins of Putney, apply, I suggest to your Lordships' Committee, with equal force and equal truth to any other dependent territories. I make no apology for rising yet again in your Lordships' Committee (this is perhaps the fourth or the fifth time) to instance the case of Hong Kong. There is absolutely no argument that I have heard this evening in your Lordships' Committee or that I heard on the Gibraltar amendment that is in any way unique to the Falkland Islands or to Gibraltar. I must declare to your Lordships that I have enormous sympathy for the motive behind this amendment, as I had for the motive behind the Gibraltar amendment. However, as those noble Lords who study these matters will have noted, I did not vote in favour of the Gibraltar amendment

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because of the enormous floodgate of precedent which that would open apropos the other dependent territories. If this amendment is carried, that argument will need to be stood on its head. If two amendments rather than just one on Gibraltar are agreed to, I must certainly consider very seriously tabling an amendment at Report stage which would encompass, of the other dependent territories—I am trying to pick my words carefully—the position of Hong Kong.
I said in your Lordships' House during the Second Reading of this Bill, and I think it right to repeat it for the record, that I am aware that if there are further movements to single out dependent territories—I instanced Gibraltar but the same argument could apply equally to the Falkland Islands—there will be great bitterness and resentment in Hong Kong. Rightly or wrongly, it will be said that the principles of the Bill which provide the three clearly defined types of citizenship can be set aside by some Members of your Lordships' House and of another place, simply because the numbers of people concerned in the territories involved are very small in immigration terms. I suggest that the argument of numbers—my noble friend Lady Vickers has instanced this and I have a great deal of sympathy with it—is immensely persuasive. However, it is a non sequiturial argument. It has absolutely no basis vis-à-vis the other dependent territories.
Arguments have been used—again I suggest entirely correctly by the noble Baroness—as to the military support given by the Falkland Islands. The same argument was raised about Gibraltar. I say strongly that the same argument is equally valid to Hong Kong, which put up tremendous resistance during the last war, with enormous casualties. The right reverend Prelate, the Bishop of Rochester instanced the concern of the churches in Gibraltar during the debate the other day in your Lordships' Committee. I am quite certain that the same argument can be used about Hong Kong. I will not detain your Lordships' Committee any longer, but would re-emphasise that if precedents are set with respect to any of the dependent territories, I can find no persuasive reason why those same arguments should not apply to all the dependent territories.
Viscount Massereene and Ferrard: The noble Lord is not being practical. He is speaking like a lawyer. You cannot compare allowing in 300 or 400 Falkland Islanders to allowing in 3 million Chinese. Do be practical.
Lord Geddes: May refute that? Again this is a non sequiturial comment from my noble friend. First, I am not of the legal profession.
Viscount Massereene and Ferrard: I knew that.
Lord Geddes: Secondly, of the 2.6 million rather than 3 million holders of Hong Kong British passports who would be eligible under this Bill, barely a handful—I have already said this, the noble Lord, Lord Mishcon, has said it in the past and many other members of your Lordships' Committee have said it—have the right of abode in the United Kingdom. All the others are restricted by way of the 1964 and 1968 Commonwealth Immigration Acts and the Immigration
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Act 1971. I repeat that the advice which I have been given is that none of those are looking for, expect to have, or have any inclination for the right of abode in the United Kingdom.
The Earl of Lauderdale: There is some danger in saying that what we do on Gibraltar has got to be done elsewhere. A substantial part of the argument about Gibraltar related to that colony's position within the EEC. May I ask those who put down this amendment whether they can say, apart from broad generalisations, that everybody in the Falklands wants this: whether it is in fact the case that the Falkland Islands' representatives or Government have said that they want this particular form of association? Whereas we had much information from Gibraltar which was precise and which pointed in one direction only, I for one—I normally get the Falkland Islands' material—have not seen anything which shows that they particularly want this specific form of association. Possibly those who are moving the amendment can answer that point. The third point about Hong Kong is, I believe, quite misleading. Hong Kong is a leased territory and is different in kind from any of the others.
Viscount Montgomery of Alamein: I intervene briefly to follow up the words of my noble friend Lord Beloff because I think he made a very important point. My noble friend Lady Vickers argued her case very cogently, but it is important that at this delicate stage of the negotiations with Argentina is is no good your Lordships supposing that the Argentine claim will go away; for better or for worse there it is and it has a wide measure of international support. It is important that we should not do anything in this House which would in any way exacerbate the situation or in any way impede a solution which might be more beneficial to the islanders in other circumstances.
Lord Geddes: If I may be allowed one moment to intervene, the noble Earl, Lord Lauderdale, referred to Hong Kong as leased territory: I think it should be put on record that, while the majority of the landmass of the Crown Colony of Hong Kong is leased, the minority geographically is ceded to the United Kingdom, and certainly the vast majority of the population live in that ceded territory.
Lord Monson: May I point out to the noble Earl, Lord Lauderdale, that on 14th July the Falkland Islands Office wrote to certain noble Lords, asking the House to accept these two amendments.
Lord Trefgarne: Considering the very deep affection which we all have for the people of the Falkland Islands it is hardly surprising that the question of where they should come in the scheme of citizenship provided for in this Bill has aroused strong emotion. If I may say so, that is as much a tribute to the Falkland Islands as to those who have spoken so eloquently in this short debate this evening. I should like to associate myself with the tribute paid by my noble friend Lady Vickers to the gallantry and loyalty of the Falkland Islands during the last war and earlier.
However, we must be careful, in our desire to declare and reinforce the affection in which we hold the islanders

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and their home, not to turn the facts on their head, because I must remind your Lordships that however strong the affection the fact remains that the Falklands are not and never have been a part of the United Kingdom. The Government have explained on a number of occasions during the proceedings on this Bill that citizenship of the British dependent territories is designed to provide a citizenship precisely tailored to the needs of our friends in the dependent territories while at the same time replacing the outdated and anomalous arrangements which now exist. The new British citizenship is likewise tailored to the needs of the inhabitants of the United Kingdom. In essence, therefore, this Bill is intended to create a distinctive citizenship for those who belong to the dependent territories and have close personal ties with them and another distinctive citizenship for those who belong to this country and have close personal ties here.
Of course, we accept that there will be the closest of links between the peoples of the United Kingdom and the peoples of the dependencies. These links are valued and cherished. This Bill does not alter our obligations and our commitments to them in any way. But we have to accept that we can no longer go on with the fiction of a common citizenship of the United Kingdom and Colonies. We need citizenships which properly reflect the basis on which they are held and we cannot shirk this task any longer.
If we accept that conclusion we really must be consistent. We cannot resort to subterfuges and exceptions which would muddy our intentions and breed confusion and uncertainly for our successors. We must do what we set out to do, and we ought not to be deflected by the inevitable but not insuperable difficulties of the tasks which we have set ourselves. It may be helpful if I compare this amendment with the amendment which your Lordships agreed to on 22nd July, which would have the effect of enabling people connected with Gibraltar to acquire British citizenship upon application. Your Lordships will remember that that amendment was agreed to against the advice of the Government. That amendment, against which the Government argued, related to British dependent territories to which Article 227(4) of the Treaty of Rome applies, and the case for it was based upon Gibraltar's inclusion in the European Community being the decisive factor. As was made clear in that debate, no other dependent territory except Gibraltar would be covered by that amendment. It was argued that Gibraltar was thus a special case; now it is being argued that the Falkland Islands are another special case. Nearly all the dependencies believe that they have a special case to make for exceptional treatment in this Bill and they have represented their views to us. But if we are to have a distinctive citizenship for the United Kingdom, then we must have another citizenship for the dependencies, not an inferior or second-class citizenship but a parallel citizenship, and having created that citizenship all the people of the dependencies should be entitled to it. It would be invidious and discriminatory to make exceptions, expecially if these were on grounds of race, as has been alleged.
Of course the amendment last week did not confer British citizenship automatically on the people of Gibraltar. It would simply enable them to acquire
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British citizenship on application. On the commencement of the Act, however, they would become citizens of the British dependent territories. By contrast, this amendment would confer British citizenship directly on the people of the Falkland Islands. We assume that it is intended that they would therefore not become citizens of the British dependent territories on commencement, but, unlike all other people in the dependent territories, including Gibraltar, they would become British citizens automatically The effect therefore would differ significantly from that proposed in the amendment agreed by your Lordships on 22nd July.
We are very conscious of the concern about this Bill which has been expressed in the Falkland Islands, but an essential element of the new scheme of citizenship is, as I have said, that there should be a distinctive citizenship for the United Kingdom and another for the dependent territories. It would be a major breach of this principle and quite unacceptable to and discriminatory against the peoples of the other dependencies if the people of the Falkland Islands were to be granted British citizenship by virtue of their links with the Falkland Islands. I think the remarks of my noble friend Lord Geddes underlined that point.
We should be in no doubt that this would be the effect of the amendment. The inclusion of the Falkland Islands in the definition of "the islands" for the purposes of the Bill is to say that a connection with the Falkland Islands, without any connection with the United Kingdom, would confer the automatic right to British citizenship. The majority of the islanders will in fact acquire British citizenship on commencement because of their descent from a father or grandfather born in the United Kingdom, but that is quite a different thing from acquiring it from a connection with the Falkland Islands.
Our appreciation of the anxieties of the inhabitants of the Falkland Islands has been made clear on various occasions, most recently in the debate in your Lordships' House on 30th June. On that occasion I said, the Falkland Islanders
"have been given assurances by the Government, most recently by my right honourable friend the Home Secretary in another place on 28th January, that the islanders could depend upon the most sympathetic consideration of their position in the event of an emergency".—[Official Report, 30/6/81; col. 184].
We believe, however, that the right way to meet these anxieties is to meet particular concerns in suitably effective ways, not to create further citizenship anomalies. Therefore, we have made it quite clear to the islanders that nothing in this Bill affects the relationship between the United Kingdom and the Falkland Islands, nor does it affect in any way the Government's obligations to the Falkland Islands and its citizens.
As for entry to this country, most of the islanders have the right of abode in the United Kingdom at present and the Bill will preserve this. Those who do not have the right of abode have been assured by my honourable friend the Minister of State, Mr. Ridley, that in the event of an emergency the problems of any islander who did not possess the right of abode in the United Kingdom and who was in trouble at that time would be most carefully and sympathetically considered. In another place on 28th January my right honourable friend the Home Secretary reaffirmed this pledge and assured the islanders that in such circumstances they

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could depend upon the most sympathetic consideration of their position, as I have said. I reaffirm those pledges tonight, which in our view recognise the historic position of the Falkland Islands.
May I now deal with one point which was raised during the course of the discussion this evening by my noble friend Lady Vickers about the position of the British people who went to the Falkland Islands originally 130 or 140 years ago. It is true that a detachment of 30 Chelsea Pensioners, I understand, were sent to the Falkland Islands in 1849. In 1857 seven accepted an offer to return at Government expense to the United Kingdom. By this time, of the 30 men seven had died, 11 had already left the Falkland Islands, and five chose to remain. But the conditions on which the pensioners were enrolled for service in the islands dealt with pay, housing, duties, et cetera, and no mention was made of nationality.
This is not surprising because at that time every colonist leaving these shores carried with him the words of the late Lord Grey, who was the then Colonial Secretary—I am quoting from what I imagine were the words on whatever passed for a passport in those days:
"that protection which the character of a British subject everywhere confers".
In this the Falkland Islands were, of course, no different from places such as Canada, Australia, and New Zealand. But the point I want to make is that the question of nationality was not touched upon then in the way which some people have suggested ought to weigh with us today.
We are very conscious of the problems that the people of the Falkland Islands face, and we are concerned to help them with these, but we do not believe the grant of British citizenship to them, with all the anomalies that would cause elsewhere in the dependencies, can be justified. We believe that the pledges we have given to the Falkland Islanders are much to be preferred to measures which, however well intentioned, would have consequences which could go a long way to nullifying the objectives of this long overdue legislation. I am afraid the Government see very real difficulties with these amendments. I hope that, in the light of what I have been able to say and the pledges I have been able to repeat, the noble Baroness and her noble friends will not press them.
Baroness Vickers: I must say I am very dissatisfied with the noble Lord's reply. First of all, it is quite wrong to suggest that this is an emotional thing; it is not an emotional thing, it is what we think is the right of these people. The noble Lord says there was no nationality Bill when the pensioners were there, but of course they did not have to bother about their nationality. They knew they were British; it was quite obvious to them. When the noble Lord speaks of sympathetic consideration in emergencies, I wonder what kind of emergencies he means—whether they are travelling and get caught where they cannot get away with their passport. I think we need further explanation as to why they need this sympathetic treatment in emergencies. I would say to the noble Earl, Lord Lauderdale, that I have checked and this is what the people of the Falklands need.
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If I may refer to the Bill, Clause 1 makes provision for the acquisition of British citizenship by those born in the United Kingdom, which throughout the Bill includes the Channel Islands and the Isle of Man. This is why I want the Falkland Islands to be included in this, and why we have put down this type of amendment. However, in view of the fact that I am not satisfied, and I do not think my noble friends are satisfied, I would beg leave to withdraw the amendment now, and reserve the right to bring it back at Report stage.
Amendment, by leave, withdrawn.
[Amendment No. 144 not moved.]
Lord Pitt of Hampstead Lord Pitt of Hampstead moved Amendment No. 144A:
Page 43, line 13, at end insert—
("For the purpose of this subsection a person is ordinarily resident in the United Kingdom or, as the case may be, a dependent territory, if that person's principal or permanent home for all ordinary purposes of living is situate in the United Kingdom or a dependent territory.").
The noble Lord said: I hope the Government will feel able to accept this particular amendment. All the amendment attempts to do is to define what is meant by "ordinarily resident". I regard that as of the utmost importance because Clause 1(1) says that
"A person born in the United Kingdom after commencement shall be a British citizen if at the time of the birth his father or mother is—

(a) a British citizen; or

(b) settled in the United Kingdom".

Clause 49(2) says:
"Subject to subsection (3), references in this Act to a person being settled in the United Kingdom or in a dependent territory are references to his being ordinarily resident in the United Kingdom or, as the case may be, in that territory without being subject under the immigration laws to any restriction on the period for which he may remain".
I am told on reasonable authority that there have been many different legal interpretations of what "ordinarily resident" means. If we are going to say that being settled in the United Kingdom means ordinarily resident, if the two things are to be accepted as having the same meaning, we should define what we mean by "ordinarily resident". My attempt here is to give such a definition. I am not tied to this definition in such a way that I will not allow the Government to say that they can word it better, but I do feel that we ought to define what we mean by "ordinarily resident", and this is merely my attempt to define it. I beg to move.
Lord Belstead: We have discussed this matter earlier on in dealing with the Bill, and I remember that on the previous occasion I said on behalf of the Government that the term "ordinarily resident" is a question of mixed law and fact which has not, as far as I know, been interpreted by the courts in a nationality context. Although I know at first sight this sounds unsatisfactory, I do not think that the absence of a definition of this term in the Bill will cause serious problems in deciding whether someone is settled here or not. Indeed, I think it could be harmful to attempt a definition since such a definition could exclude many deserving people.
If I may say so, the noble Lord's amendment, which I know is intended to try to be helpful and to clarify the

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matter, illustrates the difficulty. Under the amendment a person claiming to be settled here would have to show, first, that he was free of any restrictions on his stay, and, secondly, that he was ordinarily resident, that his permanent or principal home was in this country. But there is ambiguity over the use of the word "home", which could create as much uncertainty as the term "ordinarily resident" itself. If a home, for instance, is where one lives—and this is suggested by the words "all ordinary purposes of living"—then arguably anyone who goes abroad for long periods is excluded, because he or she is living abroad and not here, even though that person may retain links here and be intending to return here.
It is certainly true that the place of one's principal home,however interpreted, would normally be an important factor in deciding whether a person was ordinarily resident here, but it would not necessarily be the only factor. Also this definition could be a source of much detailed argument about which of his homes was his principal or permanent home, and whether one or other home was the principal or permanent home for all ordinary purposes of living. That last phrase of itself could be a fertile area of argument.
I should like to say to the noble Lord, Lord Pitt, that if it were possible to produce a short, but above all comprehensive, definition of "ordinarily resident" he may be assured that the Government would be very ready to accept it. But I really do think that this amendment almost creates as many problems as it sets out to solve. I think the fact is that the term "ordinarily resident" really has to be related to the individual circumstances of the case, and can only be interpreted in that light.
Lord Pitt of Hampstead: I was going to ask the Minister whether he would like to have another try at defining it, but it seems that the Government do not think "ordinarily resident" should be defined. I think it ought to be defined; I think people ought to know what "ordinarily resident" means because it is of such importance in terms of Clause 1(1) of this Bill. However, we shall not get anywhere this evening. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
7.20 p.m.
Lord Avebury Lord Avebury moved Amendment No. 144ZA:
Page 45, line 41, after ("mind") insert ("within the meaning of the European Convention of Human Rights").
The noble Lord said: I beg to move Amendment No. 144ZA. In the definition clause, we find that a person is of full age if he has attained the age of 18 years and of full capacity if he is not of unsound mind. It is important that a person of full capacity should be able to exercise certain privileges under Clauses 5, 11 and 12, for instance. He is not able to put in an application for naturalisation if he does not qualify as being of full age and of full capacity. Therefore, the interpretation of the phrase "of unsound mind" becomes of significance.
A person of "unsound mind" is not able, for instance, to put in an application for naturalisation. Therefore, one has to construe the phrase "of unsound mind" and one finds, in looking at the statutes, that it
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has virtually disappeared from the rest of our legislation. The Mental Health Act 1959 replaced the Lunancy and Mental Treatment Acts 1890 to 1930 and the Mental Deficiency Acts of 1913 to 1938, and provided a single code to cover both mental illness and mental deficiency.
There is now a whole new language dealing with mental disorder which does not include the term "person of unsound mind". That has been discarded from the rest of our legislation. It has been pointed out to me that earlier this afternoon your Lordships were pleased to accept an amendment that came from another place as regards the Supreme Court Bill in which "of unsound mind" was taken out of another Act and instead there was substituted "a patient", meaning a patient in accordance with the definition of Section 101 of the Mental Health Act 1959. So I am afraid that if we did put this into the Bill at this point, it would create difficulties in the courts unless they were given some guidance as to what Parliament intended the phrase to mean.
On the other hand, the phrase does occur in Article 5(1)(e) of the European Convention of Human Rights. Perhaps I may remind your Lordships of what that says. Article 5(1) says that:
"everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with the procedure prescribed by law".
It then goes through from (a) to (e) where it refers to the lawful detention of persons for the prevention of the spreading of infectious diseases, and refers to persons of unsound mind, alcoholics, drug addicts or vagrants.
So the occurrence of the words "unsound mind" in the European Convention of Human Rights has meant that the phrase has to be interpreted in the Commission and in the European Court. There have been a couple of cases where it has been of significance. There was X v. United Kingdom, Application No. 6998/75 where the appellant was detained in Broadmoor, and although he did not assert that his initial detention in 1968 was not justified on the grounds of his mental ill-health, he did argue that he should not have been recalled without due process after his release on licence. In that same case, reference was made to the case of Winterwerp v. Netherlands, Application No. 6301/73, where it was pointed out that under Netherlands law there is no definition of the term "unsound mind". What they have in the Netherlands is the Mentally I11 Persons Act—the Krank Zinnigenwit—where grounds are laid down under which persons may be compulsorily detained in hospital. I think it emerges from those two cases that some persons of unsound mind are compulsorily detained in both countries, and presumably in the rest of those countries which have signed the European Convention, without that representing any violation of their rights under the Convention. It may be noticed that both in the United Kingdom and in the Netherlands there are procedures for determining who may be lawfully detained under the Mental Health Acts in question.
The question that arises then is: are any persons who are compulsorily detained under the Mental Health Acts nevertheless of sound mind; and, conversely, are the persons voluntarily in hospital or being cared for in the community of unsound mind? I think that

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the answer to the first question ought to be "No" unless the person comes within another of the provisions of Article 5. The answer to the second question is "Maybe"; but since we are now permitting voluntary patients and patients who are being cared for in the community to exercise all their other civic rights, I see no reason why we should not also permit them to exercise the rights that they would have under Clauses 5, 11 and 12 of this Bill.
For a discussion on these issues I would refer to a very interesting paper by Larry Gostin in the International Journal of Law and Psychiatry. In case anyone wants to look it up, it is volume 2 for 1979, pages 127 to 167. It is headed, "The Merger of Incompetency and Certification: The Illustration of Unauthorised Medical Contact in the Psychiatric Context." What Mr. Gostin is saying there is that the governing principle of the previous Government's White Paper was to extend the Royal Commission's formulation, so that the position of informal patients should be equivalent in all respects to that of non-psychiatric patients. That would mean that anybody who is compulsorily detained may be reasonably deprived of his civic rights, but if he is not compulsorily detained—if he is a voluntary patient or being cared for in the community—then he should be in the same position as any other person.
Therefore I would suggest that instead of the words "of unsound mind" the Government should consider that a person may only exercise the privileges in Clauses 5, 8 and 11 et cetera if he is not detained in a psychiatric institution under any of the provisions of the Mental Health Act 1959 or possibly, as an alternative, if he is a patient within the meaning of Section 101 of the 1959 Act. It is in order to explore whether the Government are prepared to entertain some alternative of this kind which would be much more readily understandable by patients and their families that I have tabled this amendment. I beg to move.
Lord Belstead: I recall some time ago making a lengthy speech about some Northern Ireland legislation and protesting against the use of the word "lunacy". The noble and learned Lord, Lord Elwyn-Jones, in his capacity as Lord Chancellor then, dealt in very kindly fashion with my speech and indeed I believe to some extent met what was, in fact, a protest at the use of what I and others believed was an out-of-date term. This, of course, is a rather different amendment, in that the noble Lord is objecting not so much to the term, but to the imprecision which is inherent in the use of the term. The difficulty which I see in the amendment is that the term "unsound mind" is not actually defined anywhere in the European Convention, although it is used in Article 5(1)(e) which is concerned with the lawful detention of persons of unsound mind.
As I am sure the Committee will appreciate, the interpretation of "unsound mind" in this context will be very different from its interpretation in the context of nationality applications. In the former case, one will consider, for example, whether the person concerned is a danger in some way, either to himself or to the public; but in the case of nationality applica
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tion one is concerned whether the person is able to grasp the purpose of an application for citizenship and is able to take the oath of allegiance. I think that little advantage would be gained from trying to relate these two diverse aspects of the term "unsound mind".
I would further stress that the definition of "full capacity" as being "not of unsound mind" set out in Clause 49(11) is, incidentally, identical to the current definition in Section 32(9) of the British Nationality Act 1948. The noble Lord will say to me, "Yes, the whole point is that we have moved on since then and it has now become out of date". Maybe, but since 1948 I do not think that it has given rise to difficulty. I will certainly look at what the noble Lord has said. I think it is possible that there is a point here and I am very ready to look at what he has said in this respect, but it would have to be without any commitment.
Lord Avebury: I think that that is the most co-operative answer that I have had from the Minister during the whole of the proceedings on the Bill. I will not look a gift horse in the mouth. I will certainly beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 49 shall stand part of the Bill?
Lord Mishcon: Perhaps I could take up a few moments of your Lordships' time to make a protest and a plea. This is a definition clause, and taking it for granted, as we have to do, that there are to be citizens of British dependent territories, cannot we think of a better name for them other than a title that seems to betoken them as members of a British Commonwealth of soup kitchens? Surely the term "dependent" is not necessary here. Can we not think of a term such as "associated territories"? If that is caught by another Act, cannot the Government think of a more suitable term than this?
Lord Belstead: On behalf of the Government I will be ready to look at the point that the noble Lord has made. However, the point which the noble Lord has perhaps overlooked, and which perhaps some other Members of the Committee have also overlooked, is the supreme importance of having the word "British" in the title. This is what the Government, all noble Lords and Members of another place attach enormous importance to, and, of course, so do the people of those territories. This is the No. 1 priority. As regards the rest of the title, we shall look at what the noble Lord has said, but I cannot say that we shall necessarily come up with any bright ideas. Before I sit down, may I ask whether it is noble Lords' understanding that with Clause 49 goes Schedule 6, and then there are three other schedules which go with Clause 30? I was a little worried about the sequence with which we are taking matters and I thought that I would make sure before we continued.
Clause 49 agreed to.
Schedule 6 agreed to.
Clause 50 [Meaning of certain expressions relating to nationality in other Acts and instruments]:
7.34 p.m.
Lord Belstead Lord Belstead: moved Amendment No. 145:
Page 46, line 31, after ("commencement") insert (" "British subject" means a person who has the status of a British subject under this Act;").
The noble Lord said: This is essentially a technical amendment which seeks to clarify one aspect of this clause which sets out how various terms relating to nationality are to be understood in the light of the Bill. The amendment makes clear that in any legislation passed or made after commencement the term "British subject" is to be understood as referring solely to those who are British subjects under this Bill—that is, those who hold that status under Part IV of this Bill. I must stress, however, that this limitation does not affect references to British subjects in legislation passed or made before commencement. Such references will continue to be understood as referring to people who are Commonwealth citizens; this is provided for under Clause 50(1). There is therefore no question—and I must stress this most firmly—that the Bill in any way affects the scope of references to British subjects in existing legislation. Such references will continue to be read as referring to exactly the same people as at present. But where legislation is brought forward after the commencement of this Bill, then references in such legislation to British subjects will be understood to refer only to those who are British subjects under Part VI of this Bill. I beg to move this amendment.
On Question, amendment agreed to.
Clause 50, as amended, agreed to.
Clause 51 agreed to.
Schedule 7 agreed to.
Schedule 8 [Transitional provisions]:
On Question, Whether Schedule 8 shall be a schedule to the Bill?
Lord Avebury: I should like to raise a very small point with the Minister, of which I am afraid I gave him notice only this afternoon. It is on Schedule 8, which is concerned with the transitional provisions. It relates to the position of British protected persons who made an application for naturalisation prior to the commencement of this Bill. As the Minister explained earlier, there is an improvement in the position of British protected persons, in that once the Bill becomes law they will be entitled to apply for registration as opposed to naturalisation. The question that arises is what happens to the people who are in the pipeline at the time of commencement and who have already submitted an application for their naturalisation.
As I understand it, under Schedule 8 these outstanding applications would continue to be dealt with in terms of the provisions of the British Nationality Act 1948, which, of course, in this respect is less favourable to the applicant and also requires greater resources in terms of police and Home Office time. I wonder whether it is possible for the Home Office to find some way of ensuring that these outstanding applications
732
could be automatically dealt with, as though they were applications for registration, without those concerned having to lodge fresh applications and without their losing their places in the queue, but perhaps at a fee appropriate to the exercise of an entitlement rather than naturalisation or discretionary registration. If so, it would be a waste of resources to interview these applicants, certainly in the London area. I am not sure what the average delay at each stage of processing is, but in the report of the Parliamentary Commissioner for Administration it was said in October 1969 that it took 10 months for papers to be returned by the Metropolitan Police following inquiry. So cases which are now being passed to the Metropolitan Police would probably not be returned to the Home Office until after 1st January 1982.
Therefore, I am suggesting that the time of the police and the Home Office could be saved by waiting to process these applications as though they were applications for registration immediately after the commencement of the Bill, although one appreciates that it might not be right for any such decision to be made until after the Royal Assent has been given and a decision has been made on the date of commencement. However, in order to save quite considerable resources in terms of police and Home Office time, I hope that this is a point which the Minister will undertake to consider.
Lord Belstead: The noble Lord, Lord Avebury, undoubtedly has a point. Nevertheless, the full process of naturalisation, which is expensive, will have been gone through in these cases or, if not in all these cases, in many of them; then there would have to be decisions as to exactly where the line should be drawn. No decision has yet been reached, but we will, of course, look carefully at the matter as put to me by the noble Lord, and will try to reach a decision before the Report stage of the Bill.
Schedule 8 agreed to.
Schedule 9 [Repeals]:
[Amendment No. 146 not moved.]
Schedule 9 agreed to.
Clause 52 agreed to.
The Title.
[Amendment No. 147 not moved.]
House resumed: Bill reported with amendments.

Building Societies (Authorisation) Regulations 1981
7.40 p.m.
Lord Cockfield Lord Cockfield rose to move that the draft regulations laid before the House on 30th June be approved.
The noble Lord said: My Lords, in 1977 the Council of the European Communities issued a directive on credit institutions requiring Community members to introduce a system of authorisation. The directive was subsequently implemented for banks and other deposit-taking businesses by the Banking Act 1979, but at that time application of the directive to building

733
societies was deferred. The present regulations, which are made under the European Communities Act 1972, now apply the directive to building societies. The regulations before your Lordships implement the directive through the introduction of a scheme of authorisation. The regulations have been drafted to correspond as closely as possible to existing legislation on building societies as set out in the Building Societies Act 1962.
The main features of the proposed scheme of authorisation are as follows; first, the regulations will prohibit building societies from taking in funds or borrowing money unless they are authorised to do so. Secondly, a new building society will be granted authorisation only if the chief registrar is satisfied on two points: first, that the society has adequate reserves or, if the society has had inadequate time to accumulate reserves, then at least an adequate level of deferred shares which are funds which cannot be withdrawn until a sufficient level of reserves has been accumulated; and secondly, that there are at least two individuals of sufficiently good repute and experience who effectively direct the business of the society.
The third main feature is that existing building societies will not need to demonstrate that they fulfil the conditions for new societies provided that they are empowered to carry on business on the day on which the regulations come into force. They will receive authorisation automatically. They will however be liable after a period of 18 months to have authorisation revoked for non-compliance with those conditions. Authorisation could be revoked for an existing building society any time from the date of implementation of the regulations on any of the other grounds set out in the regulations.
Decisions by the chief registrar to refuse an application for authorisation or to revoke authorisation will be subject to Treasury consent. Societies may appeal to the courts on any question of law arising from any decision of the chief registrar. The Joint Committee on Statutory Instruments have examined these regulations. The Committee's 28th report draws the special attention of your Lordships to the discretion which the Chief Registrar of Friendly Societies will enjoy under Regulation 7(b)(ii). This requires that the chief registrar must be satisfied that a building society is effectively directed by individuals who "are of sufficiently good repute and sufficient experience to perform their duties".
Such discretion is inevitable if the chief registrar is to give proper effect to the requirements of the directive. The words sufficiently good repute" and "sufficient experience" are indeed taken from the wording of the directive itself. The discretion thus conferred is no wider than the chief registrar enjoys already under various provisions of the Building Societies Act 1962. The Government are confident that the Chief Registrar will use this discretion with wisdom and care.
Perhaps I should say that there have been detailed consultations with the Building Societies Association who are broadly content with the form of the regulations and the proposed scheme of authorisation. The regulations come into force on 1st December 1981 and they discharge our obligation to implement for building societies the EEC directive on credit institutions.
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I beg to move.
Moved, That the draft regulations laid before the House on 30th June be approved.—(Lord Cockfield.)
7.45 p.m.
Lord Bruce of Donington: My Lords, the House will be grateful to the noble Lord for having moved the Motion standing in his name. With the broad general content of the proposed regulation we have but a few matters in which we would like to dissent. The regulation is brought on the basis of the EEC Directive No. 77/780 dated 12th December. Your Lordships will note that Article 14 of the directive states:
"Member states shall bring into force the measures necessary to comply with this directive within 24 months of its notification and forthwith inform the Commission thereof".
I am therefore bound to inform your Lordships that of course the regulation itself is already out of time. It ought to have been put in to come into operation by 12th December 1979, which is two years after the directive itself.
I do not make any particular complaint about that. In general Her Majesty's Government under both Administrations have been very punctilious in the execution of the matters that are carried in the other place and in this House in order to conform with EEC directives. In fact, I would say that in this respect the United Kingdom has probably a better record than any other country in the Community for being prompt in carrying out the various directives.
The regulation itself effects a number of amendments to various Acts, including the Building Societies Act 1962, the Prevention of Fraud Investment Act 1939, the Prevention of Fraud Investment Act 1958, and the Building Societies Act 1960. I mention that because a directive of course lays an obligation on the member states not to carry out meticulously the actual provisions of the directive but to effect legislation which accomplishes the aims that are set forward in the directive. We had the same kind of thing, as your Lordships will recall, in the case of the recent Companies Bill, now a Companies Act, that was before your Lordships and which sought to conform with the provisions of the appropriate EEC directive. The difference then was that it became necessary to amend the Companies Act 1948, the Companies Act 1967, and the Companies Act 1976, and precisely because it was necessary to amend those various Acts it was decided to bring forward a Bill in your Lordships' House in order that this could be accomplished.
The advantage of bringing a Bill forward is that it enables Members of another place and Members of your Lordships' House to debate the various matters in detail and indeed to dissent in detail and to bring forward amendments. The disadvantage of bringing forward regulations to accomplish the same kind of thing is that of course your Lordships are not enabled to move amendments to the regulation as proposed; they are only either able to accept it or reject it. I am not at all sure that in this particular case the choice of issuing a regulation was the correct thing to do. There might be quite a number of the regulations as set forward to which amendment might conveniently have taken place according to the views of the several Members of your Lordships' House and perhaps to their political persuasions. But in bringing forward

735
a regulation, of course, this opportunity is denied them. They either have to accept the regulation as a whole or reject it as a whole.
I should not like this case to be taken as a precedent because the regulations comprise quite a small measure and I do not think any Government of whatever political complexion—particularly when the drive for the legislation originates from overseas, or from within the EEC as the case may be—should automatically do it in this way. In other words, very great care should be exercised by whatever Administration in deciding whether to bring forward a Bill to accomplish the purpose of the directive or to introduce regulations. On this occasion the Government have decided to bring forward regulations. I observe that according to the proceedings of the joint committee, they have sought the advice of the Building Societies Association and that in broad general terms they approve. It might have been wise to have consulted the Consumers' Association as well. After all, it is not only the building societies that are concerned; it is the public at large.
The regulation is brought under Section 2(2) and Schedule 2 of the European Communities Act 1972. On reference to Section 2(2) it is clear that the Government have full authority to bring forward a regulation, but always subject to the provisions in Schedule 2. It would seem—and I have taken advice on this—that the existing draft regulation is ultra vires in that it does not comply with the provisions of Schedule 2 to that Act, paragraph (1)(d) of which does not give power to any Minister to make a regulation which creates
"any new criminal offence punishable with imprisonment for more than two years or punishable, on summary conviction, with imprisonment for more than three months, or with a fine of more than £400, if not calculated on a daily basis, or with a fine of more than £5 per day".
Therefore, if there is any power in the draft regulations that goes against that provision in Schedule 2, then clearly the Minister has no power to do it. I would draw attention to Regulation 13 of the draft regulations and in particular to subsection (4)(b) which says:
"A person guilty of an offence under paragraph (2) or (3) above"—
I shall come to that in a moment—
"shall be liable:

(a) on summary conviction, to a fine not exceeding the statutory maximum; or

(b) on conviction or indictment, to imprisonment for a term not exceeding two years, or to a fine, or both".

Those penalties exceed those set out in Schedule (2)(1)(d) of the European Communities Act, and therefore the Minister has no power to do it. Moreover, one sees from Regulation 12(3), to which paragraph (4) particularly refers, that the offences created in respect of a breach of the requirement by the registrar to obtain information, among other things—and I refer to subsection (3)(d)—
"for the purpose of enabling the Chief Registrar to fulfil a Community obligation"
is quite clearly a new criminal offence, one which certainly did not exist under the Building Societies Act 1962 and, being a new offence, it comes immediately within the provisions of subsection (1)(d) of Schedule 2. It is, therefore, my respectful submission that the Minister has no power to do what he is seeking to do in Regulation 13, in particular in paragraph 4(b), which is
736
clearly in excess of what is prescribed in Schedule 2, to which I referred.
This is of course an error which can speedily be corrected because the regulation is not due to come into operation until 1st December 1981, as is stated on the face of the regulations, so there is time for the Government to examine the matter and re-submit it, I suggest when Parliament resumes in October. Clearly, it would be wrong to allow this to go through now because it is ultra vires. As I say, as to the general purport of the Bill—subject to the observations I have made about the desirability of introducing a Bill as distinct from regulations—we have no particular dissent. But the price of liberty is eternal vigilance and your Lordships' House has a right and duty to pay detailed attention to these matters and, in the circumstances, I suggest the Minister withdraws this regulation and, after taking legal advice, re-submits it in the new Session, when I assure him we shall give it a fair wind.
7.57 p.m.
Lord Cockfield: My Lords, the noble Lord, Lord Bruce, raised a large number of points and I will take them in sequence. He said the directive was made in 1977 and, as he rightly said, it provided a period of 24 months for compliance. However, in Article 2(5) and 2(6) there is provision for an extension of that period to five years. Mr. Denzil Davies announced in another place in May 1978 that the implementation of the directive in relation to building societies would be deferred. He said:
"Such deferment is for a period of not more than five years in the first instance, which would take us until 1982 … The Government have therefore decided to defer the application of the directive to both building societies and trustee savings banks and the Commission is being notified accordingly".
It is in pursuance of what Mr. Denzil Davies said that we are now proceeding at this time.
The noble Lord, Lord Bruce, raised a very important point, namely whether this should be done by way of regulation or by primary legislation. Obviously, this is a point to which one should always pay great attention. We gave it much consideration before deciding to pursue the present route. The Building Societies Act 1962 is, we believe, an extremely good Act and its provisions are effective and, broadly speaking, up-to-date, and we did not feel that at this time it would be right to ask Parliament to embark on legislation which went much beyond the scope of the European directive. If I may say so, your Lordships will be very conscious of the fact, to which Mr. Denzil Davies drew attention, of pressure upon parliamentary time, and rather than have a Bill which covered a very large range of subjects, we decided to proceed solely on the basis of the requirement in the directive.
The noble Lord also raised the question of consultation with the Consumers' Association and with the public at large. In general all Governments—it was true of the previous Government, and it is true of the present Government—consult as widely as they can on legislation of general importance. But looking at these regulations, as opposed to looking at an entirely new building societies Bill, we felt that they were of too technical a nature to warrant widespread consultations.

737
I should now like to come to the very important and erudite point of whether or not the penalties provided in the regulations are ultra or intra vires. We have in fact taken legal advice on this question, and the legal advice is absolutely clear; that the regulations are intra vires. As a result of the noble Lord's courtesy in informing me in advance of this somewhat difficult legal point, I have spent virtually an hour in your Lordships' Library reading the relevant statutes. It so happens that Schedule 2 to the European Communities Act 1972, to which the noble Lord referred, is drafted almost in the form of a double negative. It states that the powers conferred by Section 2(2) shall not include certain powers. They may include any powers, but not the powers specified under heads (a), (b), (c) and (d). One of the things specified as not being permissible is a new criminal offence punishable with imprisonment for more than two years; that is, in effect, punishable on indictment. The paragraph then goes on to deal with summary convictions, which I do not think we need worry about in this connection because there is no dispute over them.
Therefore the position in law is that Schedule 2 prohibits the regulations from creating a criminal offence which is punishable with imprisonment for more than two years, but it does not impose any other limitation on the punishment which may be awarded on indictment. That is not uncommon. Not uncommonly, on indictment there is an alternative of a fine without limit, or both a fine and imprisonment; and because Schedule 2 does not prohibit it, it is therefore intra vires for the regulations to proceed on the basis on which they have proceeded.
We have taken this point very seriously indeed. We have had legal advice on it. I am myself satisfied that the legal advice is correct. The regulations were of course examined by the joint committee, which did not raise this point, though it raised another point on the width of the discretionary powers. I hope that the noble Lord will be prepared to accept the assurance I give him that our legal advice on this point is absolutely clear.
Lord Bruce of Donington: My Lords, it would be a very bold chartered accountant who would dream of arguing with a barrister of 39 years' standing, and I approach your Lordships' House with all the humility that is appropriate to my professional position. When I made inquiries—as the noble Lord would expect I should—I was informed that the Select Committee had not addressed itself to the consideration of whether or not the regulation was intra vires, and in fact was tendered no legal advice on this particular aspect of the matter. I have taken legal advice on the construction of both the regulations, in particular Regulation 13(4), and paragraph 1(1)(d) of Schedule 2 to the European Communities Act, and my legal advice is contrary to that which has been put by the noble Lord, which of course places me in some difficulty.
I should be reluctant to enter into legal confrontation with the noble Lord opposite on a matter of this kind, which quite clearly falls within his own profession, but I am bound to say that I have myself had legal advice on it, and the legal advisers might be in conflict. On the face of it, and despite the noble Lord's researches
738
in the Library and his consequent conclusions, I remain persuaded that I am quite right in saying that Regulation 13(4) in fact creates a new offence, and that the offence puts the matter beyond the reach of paragraph 1(1)(d) of Schedule 2, and that therefore it is ultra vires.
I do not know how your Lordships would be prepared to deal with a question of this kind, which is raised in no spirit of party rancour, or even with the idea of making a funny point for the pure cleverness of it. I am a little uneasy about the whole thing. On mature reflection, and taking even possibly higher legal authority than might have been at the disposal of both the noble Lord and myself, perhaps a different conclusion would be arrived at. I would say at the very least—I put this to the noble Lord—that it is a matter of some ambiguity, which ought to be resolved, because nobody wants to have a regulation that is in fact ultra vires. Therefore I remain of the suggestion that perhaps it would be advisable—the noble Lord ought to consider this—that the matter be referred back to the Government's legal advisers, or, if necessary, referred to even higher legal advice than has been given, if indeed that is possible. We on this side ought to be given the opportunity of taking legal advice, too. After such amendments as might be necessary to make the regulation conform, we on this side of the House would give it a very fair wind. The dictates of caution might suggest that it might be wise to withdraw it tonight and bring it back in October. That would give adequate time for the regulations to be put into operation by 1st December, and it would not take more than 10 minutes of your Lordships' time. I make that suggestion as a constructive one, and I sincerely hope that the noble Lord will find himself able to agree with me.
8.9 p.m.
Lord Cockfield: My Lords, I do not know whether I require permission to speak again, but if I do, may I ask for it? We are ourselves quite clear that the regulation is intra vires. Indeed, it would be remarkable if it were not intra vires in the sense that on indictment it is customary for there to be a limited term of imprisonment—two years is a very common term for a breach of this kind of obligation—and for that to be backed by an unlimited fine, or to have both. These powers, however, are given not to courts of summary jurisdiction, but to the higher courts, where it is thought that powers of that kind are quite appropriate. I say that it would be remarkable if it were not possible to do that. If the noble Lord were right—and I do not accept that he is—it would mean that every regulation made under the terms of the 1972 Act would fall foul of the particular argument that he puts forward.
I accept that the way Schedule 2 is drafted is a convoluted one, but that is not at all unusual in legal matters. I do not say it is done to prevent those who are not lawyers from understanding it, but that is very often the unfortunate effect. However, the broad legal principle is that what is not prohibited in a power is permitted, and what is prohibited here is any new criminal offence punishable with imprisonment for more than two years. That, the regulation does not in fact infringe.
Obviously I should like to dispose of this matter now

739
if we possibly could. Clearly to have a Division on what in fact is a legal argument is not the correct way to resolve matters of this sort. A Division is the appropriate procedure if there is a difference of opinion on matters of principle or indeed on matters falling short of principle. But when one comes on to pure question of law, as this one is, I do not think a Division is the right way to resolve it. If the noble Lord wishes to press his objection I think it leaves me with no alternative but to take the regulation away. I hope he does not do that, but if he does, then I do not want to press matters to an extreme. I would ask him whether he is prepared to give one moment's further thought to what I have said on this matter.
Lord Airedale: My Lords, if the regulations do not come into operation until next December, it does not seem to me to be absolutely essential and urgent that this Motion should be agreed to this evening.
8.12 p. m.
Lord Bruce of Donington: My Lords, with your Lordships' leave, I accept immediately what the noble Lord has said and I must say he has approached the whole question with the utmost generosity of spirit, which I greatly appreciate. However, he said that paragraph 1(1)(d) of Schedule 2 had perhaps been unfortunately drawn. I do not want to make too much of the point, but of course when important measures of this kind are passed through both Houses almost under the guillotine, errors of this kind are likely to arise. I do not reproach the noble Lord for that, because he was not a Member of your Lordships' House at that time. Had he been here perhaps we should have had even greater vigilance on his part—the same kind of vigilance as we have had today.
I am most reluctant to press the noble Lord on this point, but I am still not satisfied and I do not see that any harm would be done by allowing it to remain over, on the basis that, as I say, we will give it a fair wind and it is not going to come into operation until 1st December 1981. I therefore have to press the noble Lord. I do it with some reluctance because he has been extremely pleasant in his reception of the objections I have made, but I am quite sure that if he were in my position, knowing his temperament and the way he goes about things, he would have done exactly the same. So I hope that he will not take it amiss and I hope also that the House will bear with me if I do have to press him on this matter.
Lord Cockfield: My Lords, so far as the comment made by the noble Lord, Lord Airedale, is concerned, of course the shorter the period that is allowed for the administrative arrangements to be made, the greater the practical difficulties that arise. I do not put it any higher than that. The reason we set the 1st December as the date was that we felt it was not unreasonable to give people, say, the best part of six months in order to get their affairs in line with the requirements under the directive; but in view of what the noble Lord, Lord Bruce of Donington, says, I beg leave to withdraw the Motion.
Motion, by leave, withdrawn.

Industrial Investment (Amendment) (Northern Ireland) Order 1981
8.14 p.m.
Viscount Long Viscount Long rose to move that the draft order laid before the House on 23rd June be approved. The noble Viscount said: My Lords, on behalf of my noble friend Lord Elton, I beg to move that the draft Industrial Investment (Amendment) (Northern Ireland) Order 1981, a copy of which was laid before this House on 23rd June 1981, be approved. This short order brings Northern Ireland law on the payment of grant towards capital expenditure on the provision of industrial premises broadly into line with that of Great Britain. In Northern Ireland, existing powers under the Industrial Investment (General Assistance) (Northern Ireland) Act 1966 limit the payment of grant to a person who incurs capital expenditure on the provision of a factory for his own use. In Great Britain, Part I of the Industry Act 1972 provides for the payment of regional development grant to any person who incurs expenditure on providing industrial premises when those premises come to be occupied by a qualifying activity.
In effect, grant is payable to a person who builds a factory for his own use or to a person who builds a factory for leasing to a manufacturer. The order will therefore ensure that a grant incentive will be available to private sector investment in Northern Ireland in the same way as it is in Great Britain. In the past, most of the factory provision in Northern Ireland has been met from public funds, and it is hoped that the incentives to private investors will assist in establishing a private sector share in the market for speculative factory building. I am hopeful that by the bringing of Northern Ireland law into line with that of Great Britain the order will achieve the result of attracting funds from the private sector for the provision of new industrial premises. I beg to move.
Moved, That the draft order laid before the House on 23rd June be approved.—(Viscount Long.)
Lord Ponsonby of Shulbrede: My Lords, on behalf of my noble friend Lord Blease, who is unfortunately unable to be with us this evening, I should like to thank the noble Viscount for explaining this order. We on this side of the House welcome the order in so far as it beings Northern Ireland into line with legislation in Great Britain for the payment of capital grants to private industries for the construction of industrial premises. Whatever may be the benefits in the long term to Northern Ireland's industrial potential, it would seem unlikely in the short term that this legislation will provide the kind of assistance which is urgently required to promote productive employment, as, unfortunately, spare factory space is not all that scarce a commodity in Northern Ireland. I hope that the noble Lord will be able to assure your Lordships that development sites will be released by the appropriate authorities in new towns where land is nearly all vested in a public body. Perhaps the noble Viscount would also be able to define for your Lordships what he means by "a qualifying industrial purpose".
Viscount Long: My Lords, I am most grateful to the noble Lord, Lord Ponsonby, for his kind comments on this order. Perhaps I might deal with his first point, which concerns the land available and whether the authorities would release it, and how much land there is. At present the Department of Commerce has only 35,000 square metres of factory space available for immediate occupation. Other stock is being refurbished, but there is clearly a market for the private sector in respect of factory building. The important thing here is to encourage employment, of course.
In his second question the noble Lord asked what the factories would be used for. The purpose would be entirely the bringing in of new industry, manufacturing industry, as such. I hope that answers the noble Lord's question.
On Question, Motion agreed to.

Tenerife Air Accident: Spanish Report
8.20 p.m.
The Earl of Kinnoull The Earl of Kinnoull rose to ask Her Majesty's Government why they saw fit to qualify the recent report of the Spanish authorities concerning the accident at Tenerife in April 1980.
The noble Earl said: My Lords, I am grateful to the Chief Whip for allowing this brief moment of time tonight in his busy programme to raise for the first time in this House the extraordinarily confusing report published last week by Spanish authorities on the Dan Air accident at Tenerife in April 1980, which contributed, as the House will recall, to the worst air disaster in British aviation and the tragic loss of 146 lives. I say "confusing report" as, of course, the conclusions were seriously qualified and, indeed, rejected by Her Majesty's Government—that is, the conclusions on culpability. I hope that tonight my noble friend, whose responsibilities, we know, cover all civil aviation matters, will be able to throw more light on the reasons behind the disagreement on culpability, and give an assurance from Her Majesty's Government that they are satisfied that the steps which have been taken by the Spanish authorities since the accident now meet the safety standard of ICAO at the two Tenerife airports.
May I start at once by adding my name to what I am sure is the deep sympathy felt by the whole House to all relatives and families of both the crew and passengers who perished in the disaster. I would also add that I am sure the Government's rejection of the Spanish authorities' report of pilot error is a very welcome source of comfort and vindication to the reputation and memory of the crew and, indeed, the airline, and their families. The report itself must be unique in the history of air accident investigation. We had experts from three countries—from the United States, from Britain and from Spain—all joining forces to analyse the cause. The report took 15 months to publish, although I suspect only nine months to complete. Its contents were mysteriously leaked some weeks before publication. Its chief conclusion of pilot error is refuted firmly by the British Government, with reasons.
The report offers three pretty ineffective recommendations for future safety. I suggest it leaves any reader of the report with no confidence on the face of it that the then inadequate Spanish air control organisation could not again repeat their awful mistake. The British addendum to the report offers three major criticisms of the Spanish air control system at Tenerife at the time: first, the ambiguity of information for the pilot; secondly, the lack of a published holding pattern for the pilot; thirdly, the unrealistic aircraft track. If one adds to this the recent criticism by the International Federation of Airline Pilots' Association of the limited landing aids available at the old Tenerife Airport, it makes one wonder whether Her Majesty's Government are truly satisfied with the present procedures of air traffic control at Tenerife—and, indeed, do they now meet the safety requirements of ICAO?
This leads one to query: Should not a busy airport with mountainous terrain be equipped with every possible known safety aid, including radar? Surely this would diminish the scope of human error of traffic controllers. Perhaps my noble friend could comment briefly on this. In recent months, of course, matters have changed at Tenerife considerably, with the opening of a new airport. This, I understand, now handles all the direct flights from Britain. But what of its standards of air traffic control and landing aids at this airport? Can my noble friend confirm that British airlines now use this airport exclusively, and that they are satisfied that the necessary steps have been taken by the Spanish authorities? Perhaps when my noble friend replies he will also confirm that the normal Civil Aviation Authority conditions of licence as regards insurance provisions applied to the Dan Air service to Tenerife in 1980.
My noble friend knows well that there have been a number of disturbing features surrounding this investigation, and indeed the publication of this report, not least the apparent deliberate leaking of its conclusions before publication. I hope my noble friend can say that this matter is being taken up, and has been taken up, at the appropriate level. But the most disturbing feature remains—the disagreement on culpability. Anyone who has read the transcript recorded from the "black box" cannot fail to wonder about the illogicality and bias of the Spanish authorities' conclusions. I commend the Government for their addendum, for removing the unfairness of the charge of blame from the crew and the airline.
But, having said that, I trust my noble friend can assure us tonight that every reasonable step arising from this report has been taken by the Spanish authorities to avoid a repeat of such an accident, and that thousands of sun-starved British holiday-makers visiting Tenerife can have that assurance in planning their holiday.
8.26 p.m.
Lord Ponsonby of Shulbrede: My Lords, may I first of all thank the noble Earl, Lord Kinnoull, for allowing us on this auspicious day, although rather late in the evening, the opportunity to discuss this report, which unfortunately we were unable to discuss last week. I should first of all like to associate myself with the condolences which he expressed to all those who were bereaved as a result of this appalling accident. Secondly,

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I should like to thank the noble Lord, Lord Trefgarne, who is to reply to this debate in his role as one of the Ministers at the department, for insisting that there was an addendum to the report. I am sure that we are all very much concerned that in fact the report as a whole should be a properly balanced document.
This fact, that it was necessary to have an addendum at all, I think raises the point about whether there is adequate international machinery for the investigation of crashes of this sort. Indeed, my Lords, my attention has been drawn to a leading article in The Times newspaper on the day after the statement was made, in which it was said:
"It is unfair and unsatisfactory to continue with a system in which the country that has primary responsibility for investigation may also have a national interest in the result".
The article went on to say:
"Increasingly air crashes today have international ramifications. It is not uncommon to find the airline of one country flying the aircraft of another, ferrying passengers of various nationalities to all manner of foreign destinations. It is no longer satisfactory to leave the investigation of air accidents with such international aspects to the often inefficient and sometimes not impartial offices of a country which happened to play host to the crash".
I wonder whether the noble Lord has given any consideration to the desirability of trying to set up some form of international and impartial mechanism for the investigation of air crashes. I think that this is a particular lesson which this report, and the fact that it has been necessary to make an addendum to it, raises.
I should then like to return for a short period to the details surrounding this report. It has a number of disquieting aspects, particularly from the point of view of the layman. One felt that there was a very casual attitude to some of the instructions which passed from the control to the aircraft. For example, the controller, in his instruction to the 727 crew, was meant to say,
"The standard holding pattern turns to the left".
What was recorded on the cockpit voice recorder recovered from the wreckage was the instruction:
"Turn to the left".
Indeed, the noble Earl, Lord Kinnoull, referred to the inadequacies of these instructions. He also referred to the fact that some sections of this report were leaked by the Spanish authorities before it was published. That is another worrying aspect. Another worrying aspect is how the programme "Panorama" was able to obtain a copy of the cockpit voice recording; that is another point on which I hope the noble Lord, Lord Trefgarne, will be able to comment when he replies.
Those who have heard the cockpit voice recording will know that to some extent it demonstrated a casualness on behalf of those flying the aircraft. I wonder whether the noble Lord will have anything to say about whether the crew of the aircraft were perhaps over casual in their duties at the time immediately prior to that at which the crash occurred. I wonder whether the noble Lord feels able to make any comment on that point as well.
Finally, I wonder whether the noble Lord, Lord Trefgarne, has any point to make on the question of radar, because it seems that if radar had been installed this particular catastrophe might possibly have been averted. This report, by its very publication, raises a
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number of serious issues. I hope that in his reply the noble Lord will be able to respond to some of them.
8.32 p.m.
Lord Trefgarne: My Lords, I want first to thank my noble friend for initiating this debate on the tragic accident which occurred at Tenerife in April 1980. As my noble friend said in his opening remarks, this accident was the worst in the history of British aviation. The accident has been the subject of a comprehensive inquiry in which our own Accidents Investigation Branch and American investigators were closely involved. As my noble friend has pointed out, however, my right honourable friend decided that the final report on the accident produced by the Spanish Commission of Investigation should be published with a qualifying addendum. This was published on 20th July and was also attached to the Spanish version of the report.
If I may, I should like to point out right away that this addendum was not produced by Her Majesty's Government but by the United Kingdom's accredited representative, who is a senior inspector with the Accidents Investigation Branch. In accordance with the procedures established by the International Civil Aviation Organisation, an inspector with the Accidents Investigations Branch of the Department of Trade was appointed the United Kingdom's accredited representative and actively participated, together with his advisers, in the Spanish investigation. The addendum was prepared by him in order to restore balance to the report which was, in his opinion, missing from the original document. I am sure that your Lordships appreciate that the Accidents Investigation Branch enjoys statutory independence in the discharge of its duties and that it would be quite improper—indeed, unlawful—for Her Majesty's Government to intrude into the preparation of reports et cetera.
May I now turn to this particular report, which was prepared by the Spanish authorities. In general, the AIB are in agreement with the report but, as I have said, it was considered that further comments were necessary in order to give the document a proper balance. The Spanish report places responsibility for the accident firmly on the aircraft commander. Although it is true that final responsibility for maintaining a safe altitude rests with the commander, in our view the report seriously understates those inadequacies of the Spanish Air Traffic Control Organisation which contributed to the accident. The most appropriate way of ensuring that these comments were seen in the context of the report was to publish them as an addendum. The Spanish authorities readily acceded to the United Kingdom's request to do this.
From time to time, especially following a tragic accident such as the one under discussion, there are calls—such as that which the noble Lord, Lord Ponsonby of Shulbrede, repeated tonight—for some form of international accident investigation organisation to undertake the investigation of major aircraft accidents which have a strong international flavour. The procedures for the investigation of such accidents have long been under the benign influence (if that is the right expression) of the International Civil Aviation Organisation, and in general they are very satisfactory.

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In addition, it must be borne in mind that questions of national sovereignty arise. For example, how would we in this country react to an international team of investigators descending on us—who would, almost certainly, be less qualified and experienced than our own Accidents Investigation Branch? It does not follow that an international organisation would necessarily be any more impartial or better qualified than the local national team.
The noble Lord, Lord Ponsonby of Shulbrede, also referred to the absence of radar at Tenerife, and others have commented on this as a possible contributory factor in the accident. I have to say quite plainly that I do not think that the availability of radar in this case would necessarily have avoided the accident. There are two reasons why I believe that. The first is that radar in general is not a terrain clearance aid. It is designed to expedite the flow of traffic in and out of airports such as Tenerife. At airports where the level of traffic is comparatively low then procedural approach arrangements are entirely satisfactory, provided of course that they are properly devised in the first place and are properly executed by the aircrew who are always trained, of course, in the use of those facilities.
Secondly, in this particular case there is considerable doubt whether in fact it would have been possible within the very short time available to observe the turn of the aircraft towards the high terrain instead of away from it in sufficient time to warn the aircrew and instruct them to turn in the opposite direction, away from the mountains. There was only a very short span of time—some 40 seconds in all, I believe—during which that manoeuvre could have been completed. That is to say there were only 40 seconds in which to observe and identify the wrong turn and for the aircrew to correct it following instructions from the radar controller. Looking at the charts, as I have done quite recently, I do not think that this could have been achieved in the short time that was available.
My noble friend Lord Kinnoull asked me about the arrangements at Tenerife airport in general. There are now two airports on the island of Tenerife. The southern airport was opened comparatively recently and, so far as I am aware, it is adequately equipped to the standards ICAO laid down. The northern airport, near which the accident in question occurred, is not now used by international passenger flights. As I understand it, it is used only by local flights involving small aircraft and by freight aircraft. I hope that the reservations which my noble friend expressed have been adequately dispelled by this reply.
The noble Lord, Lord Ponsonby, and my noble friend Lord Kinnoull referred to leaks. There were two issues of concern to us in that connection. As the noble Lord, Lord Ponsonby, said, the tape recording from the cockpit voice recorder was used in the "Panorama" programme which was broadcast before the report was published. There were, as I understand it, two copies of the recordings, one of which was held by the British and the other by the Spanish authorities. I can assure your Lordships that the tape held by the British authorities was not made available to the BBC for this purpose. As for
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the report itself, it is apparently the case that a copy was available to the media at least three weeks before it was published. I can assure your Lordships that that copy did not come from any British source. How it came to be found in the hands of the media I cannot say; but, as I said, it did not come from the British authorities.
My noble friend Lord Kinnoull also referred to the question of compensation for the victims of this accident. The Warsaw Convention of 1929 established a régime under which a person can in practice recover damages, subject to proof of loss, up to a fixed limit. This gives a significant benefit to the passenger. He or she does not have to prove negligence and thus long and contentious litigation can be avoided. I accept, however, that there may be a problem over the level of compensation payable. The fixed sum is of course liable to erosion by inflation. The present limit of 58,000 United States' dollars (about £30,000) resulted largely from a United Kingdom initiative in 1974 to improve the amount paid by airlines in more than 20 countries. In a further step, the Civil Aviation Authority has arranged that from April 1981 United Kingdom airlines should contract with their passengers for a liability up to 100,000 special drawing rights, which is about £57,000. The authority is monitoring compliance at present and it is clear that virtually all air transport licence-holders have complied. But I regret that this improvement comes too late to benefit victims of the Tenerife accident crash, with whom the contracted sum was still set at 58,000 United States' dollars.
My noble friend and the noble Lord, Lord Ponsonby, referred to the inadequacies of the air traffic control system in Tenerife. The Government agreed in the course of the addendum to the report that there were indeed some inadequacies in the air traffic control system there. We believe that with the downgrading—if that is the right word—of the northern airport on Tenerife and the opening of the new airport these problems are largely eliminated. The implementation of ICAO procedures in Spanish air space is a matter for the Spanish authorities, but we have no reason to believe that there is any cause for alarm on that count.
Finally, I want to say one or two good things about the Spanish authorities in this matter. It is the case that under the international agreements—as I have already said—they have to carry out the investigation. However, they readily agreed—as they were required to do—to accept British and American accredited representatives. The American representative has a locus because he would be representing the state of manufacture of the aircraft. It is also the case that the Spaniards readily agreed—as they were not obliged to do—to publication of the report in principle, and this was some considerable time ago. Indeed, they subsequently agreed to the report being published with the addendum to which I have already referred. Those are the main points that have been raised with me tonight. I hope that I have been able to set the fears of my noble friend at rest. I should like to end by expressing once more sorrow at this tragedy and extending deep sympathy to relations and friends of all those who were killed.

Future Business
Lord Denham: My Lords, with the leave of the House, I should like to inform the House that it has been agreed through the usual channels that in view of the business before the House on Thursday of this week, 30th July, the House will sit on that day at 2.30 and not at 3 o'clock.
Lord Ponsonby of Shulbrede: My Lords, may I thank the noble Lord for making that announcement? I hope that the effect of it will be that we shall get home half an hour earlier on Thursday.
Lord Denham: My Lords, in echoing that hope, I beg to move that the House do now adjourn.
Moved accordingly, and, on Question, Motion agreed to.