Lords Sitting of 24 March 1981

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—read by the Lord Bishop of Southwell
The LORD FOLEY—Took the Oath.

Namibia: Independence Arrangements
Lord Brockway: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will make a statement on the progress of arrangements for the independence of Namibia (South West Africa).
The Parliamentary Under-Secretary of State, Department of Trade (Lord Trefgarne): My Lords, all concerned in the negotiations, including the new administration in the United States, are reviewing their approach in the light of the setback to hopes of an early settlement at the Geneva meeting in January. We hope that negotiations will resume soon but it is too early to predict when or how it may be possible to make progress.
Lord Brockway: Yes, my Lords, but is it not the case that there has been no progress since the abortive Geneva Conference owing to the intransigence of South Africa in relying on a new attitude by President Reagan? Is it not the case that South Africa is now using its military strength to increase its occupation, even going deep into Angola? Will the Minister answer this: Are the United Kingdom and the other Western powers who were parties to the settlement balancing the pro-South African visitors toWashington by urging unitedly that President Reagan should end the illegal South African occupation of Namibia?
Lord Trefgarne: My Lords, while the United States will have an important role to play in this matter in due course—that is, when they have determined their policy—the fact is that the principal organisation involved in reaching a settlement will be the United Nations.
Lord Barnby: My Lords, would the Minister not agree that impartiality is the essence of the exercise and that, while the United Nations are now funding SWAPO and have resolved that SWAPO alone is the authentic voice of the people of South-West Africa, progress must necessarily be slow and difficult for all those participating, and particularly for the Republic of South Africa? Secondly, can he comment on the reports in the press that arms for SWAPO are of Russian origin? Are they paid for by the United Nations, or are they given freely to SWAPO by Russia?
Lord Trefgarne: My Lords, I am afraid I cannot comment on the press reports relating to the sources
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of arms which are available to SWAPO, but, on the question of the United Nations' partiality, it is true that some of the resolutions and other statements that have come from the General Assembly have been less than helpful in this matter. On the other hand, the policy with regard to Namibia is the one determined by the Security Council and administered impartially by the Secretary-General.
Lord Goronwy-Roberts: My Lords, would the Minister agree that the successful outcome of the negotiations which resulted in the settlement in Rhodesia provides a very hopeful precedent for the way in which the United Nations and we in the West, and everybody else concerned, can deal with the Namibian situation? Will he in particular remind his right honourable and noble friend the Foreign Secretary that one of the major features of the Lancaster House negotiations was that everybody concerned in the future of Rhodesia within Rhodesia and in countries contiguous to Rhodesia were consulted and took part in fashioning the very effective settlement?—in which case it would seem very helpful for Her Majesty's Government to speak firmly in Pretoria and with clarity in Washington.
Lord Trefgarne: My Lords, it is right to say that the settlement in Rhodesia is a source of hope that a settlement can also be achieved in Namibia. But I would warn against drawing too close a parallel between the two situations, for I doubt very much whether the approach which was successful in the case of the Rhodesian situation would be equally fruitful with regard to Namibia.
Lord Gladwyn: My Lords, is it the fact that the United States Government have recognised the revolutionary movement known as Unita in Angola? If so, is that not likely to have a certain effect on Ovamboland and on events in North-West Namibia?
Lord Trefgarne: My Lords, I do not think it is true to say that the United States have recognised Unita as such. There was the repeal of the Clark amendment which may, it seems, pave the way for certain assistance to be granted to Unita if the American Government so decide; but this is a matter for the American Government and the American Congress. We have full diplomatic relations with the Angolan Government and do not recognise or support any opposition movement in Angola.
The Lord Bishop of Southwell: My Lords, will the Government, as we are one of the five United Nations contact countries, give an assurance that they will not agree to any further delays in a cease-fire and in the implementation of the United Nations plans for Namibian independence? Will they further give an undertaking that they will not agree to any electoral reforms which do not recognise the rights of SWAPO to seek the support of the Namibian people?
Lord Trefgarne: My Lords, on the first point put by the right reverend Prelate, the question of the way forward in the Namibian context, it is not for the United Kingdom alone to decide whether delay occurs

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or does not occur. It is quite properly the case that the Five—the contact group as they are called—move forward with a degree of consensus, and we are seeking to achieve that. On the second point, that of electoral arrangements which will in due course come to pass in Namibia, I do not wish to go further than to say that our policy is to allow all the people of Namibia to express their views at the due time.
Lord Paget of Northampton: My Lords, since the real issue in Namibia seems to be whether there is going to be Cuban control or South African control, have Her Majesty's Government applied their mind at all to which of those two real alternatives they prefer?
Lord Trefgarne: My Lords, not for the first time the noble Lord has over-simplified the matter.
Lord Hatch of Lusby: My Lords, is the noble Lord the Minister aware that there is a very widespread feeling in Southern Africa that the South African Government are deliberately postponing any decision about the cease-fire until they are able to destroy the forces of SWAPO, and that if this were so it would ignite an inferno which would sweep right across Southern Africa? Do Her Majesty's Government condemn the aggression which the South African forces are daily carrying out within the boundaries of Angola?
Lord Trefgarne: My Lords, we condemn all violence from wherever it may come, particularly in this context. However, the South Africans are not alone in this matter.
Lord Pargiter: My Lords, may I ask whether, whatever political settlement is arrived at, it is likely that none will be agreed by South Africa unless her commercial interests are well looked after, and that these commercial interests of South Africa fit in very well with British commercial interests?
Lord Trefgarne: My Lords, many supplementary questions seek to ascribe to the South Africans one motive or another. I can only answer for the motives of the British Government in this matter. Our motive is to seek a settlement in this area as soon as may be.
Lord Brockway: My Lords, does the Minister not agree that when there is fear of SWAPO's ideology we should bear in mind the case of Zimbabwe where there was similar fear of Mugabe's ideology? Is it not the case that failure of the West to act will increase the influence of the Soviet Union and help to determine the character of the independent Namibia?
Lord Trefgarne: My Lords, the question of the ideology of one party or another in Namibia will in due course be a matter for the Namibian people to decide, and that is the purpose of our policy.
The Minister of State, Ministry of Agriculture, Fisheries and Food (Earl Ferrers): My Lords, I think it may be for the convenience of your Lordships if we move on to the next Question.

Electoral Law: British Citizens Abroad
2.47 p.m.
Baroness Faithfull: 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 the review of the electoral laws of this country has been completed, and whether British citizens living abroad are to be granted voting rights.
The Parliamentary Under-Secretary of State, Home Office (Lord Belstead): My Lords, my right honourable friend the Home Secretary has now completed his review of electoral law and procedures and hopes to make a Statement about his conclusions before long. This will deal with, among other things, the proposal that United Kingdom citizens resident abroad should be able to vote at elections in this country.
Baroness Faithfull: My Lords, may I thank the noble Lord for that reply. I am sure that the citizens living abroad will be grateful for it. May I ask the Minister whether, during his review, it was found that the number of United Kingdom citizens living abroad for a short or long spell has greatly increased and therefore this matter is of double the importance it was before?
Lord Belstead: My Lords, I must make it clear to my noble friend that the Government are sympathetic to the case for permitting United Kingdom citizens resident abroad to vote at elections in this country, particularly elections to the European Parliament. But there are issues of principle as well as a large number of practical problems which must be resolved before such arrangements can be introduced. So far as the numbers question is concerned, we must await the Statement which my right honourable friend hopes to make.
Lord Wigoder: My Lords, did the review deal with the question of whether we might change to a sensible electoral system?
Lord Belstead: My Lords, the review did not deal with the question in the way that the noble Lord has put it.
Lord Wells-Pestell: My Lords, may I ask the Minister whether he is suggesting that voting rights will be extended to those British subjects who have made it perfectly clear that they have no intention of returning to this country?
Lord Belstead: This, my Lords, is of course one of the matters of principle which would have to be considered seriously.
Lord Ferrier: My Lords, would my noble friend agree that this point raised by my noble friend is one of particular significance to Scottish people? Would he agree that it is probable that there are more guidgaun Scottish men and women living and working abroad than there are resident in Scotland?
Lord Belstead: My Lords, I am sure that this is a point which will be well taken by my right honourable friend the Home Secretary.
Lord Elwyn-Jones: My Lords, will the question whether British citizens living abroad are paying taxes to this country be a relevant consideration?
Lord Belstead: My Lords, that again would be among the many considerations to be taken into account.
Viscount St. Davids: My Lords, may I ask the noble Lord a genuine question as a matter of information? What other nations, particularly European nations, go in for this practice?
Lord Belstead: My Lords, may I give the noble Viscount a genuine answer? I do not know the answer to that one.

University Places: Armed Services
2.51 p.m.
Lord Gisborough: 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 university places were sponsored by the armed services in 1980.
Viscount Long: My Lords, in 1980 the Armed Forces provided financial support for a total of 1,320 service officers, cadets and bursary-holders who were undertaking first degree or postgraduate courses at universities. This figure excludes Open University courses.
Lord Gisborough: My Lords, I thank the noble Viscount for that Answer. Could he say what was the cost of these courses, and could he also tell us the system of pay and allowances for those who attended them?
Viscount Long: My Lords, the figure is about £4,000 per annum per head on average. That figure excludes university fees paid directly by the Ministry of Defence to the universities. As to the numbers who fall by the wayside, that is difficult to say; but the majority of the students stay in the services afterwards.
Lord Peart: My Lords, I hope the noble Viscount will accept that this scheme is really a successful one, and that it is important that many of our future officers should be trained in mathematics and other matters which are essential in gunnery, for example. This applies also to the Royal Navy and the Royal Air Force; and so anyattempt to have criticism would be disastrous.
Viscount Long: My Lords, I am grateful to the noble Lord for what he has just said; and, of course, the scheme is also important for recruitment into the services. As he said, it is very important for us to have the finest brains in all our services.

Pension Age for Men: Cost of Reduction
2.53 p.m.
Lord Winstanley: 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 would be the cost to public funds of a reduction of national insurance pension age for men to 63 years, if allowance is made for consequential job vacancies being filled by men or women who are at present unemployed.
Lord Cullen of Ashbourne: My Lords, if the pension age for men were reduced to 63, it is estimated that the net cost to Government funds for a full year, at November 1980 rates, would be in the order of £600 million. This estimate takes account of the savings resulting from consequential vacancies expected to be filled by people on the unemployment register.
Lord Winstanley: My Lords, while thanking the noble Lord for that Answer, so far as it goes, may I ask whether he would not agree that if we have to plan for major unemployment in the future it is surely very much better for all those concerned, and for society as a whole, that these enforced periods of leisure should come at the end of the working life rather than at the beginning?
Lord Cullen of Ashbourne: Yes, my Lords, but one cannot leave the financial aspect out of it altogether. The calculation of £600 million was based on the pattern of employment remaining the same as it is now, with men between 65 and 70, and two-thirds of the vacancies being taken up by those on the unemployment register. That is because all vacancies will not be taken up, nor will there always be qualified people available in the areas concerned to take them up.
Lord Derwent: My Lords, may I ask what the saving would be if the retirement age for ladies were raised to 63?
Lord Cullen of Ashbourne: My Lords, I could not actually tell you that, but I could say that if we made the pensionable age for both men and women 64¼ it would even itself out completely. But it might be rather difficult to sell the idea to women, who have been expecting to receive a pension at the age of 60.
Lord Shinwell: My Lords, is the Minister saying whether the proposition embodied in this Question means that, if I rendered myself unemployed, I would be entitled to all the money that emerges between 63 years of age and 96?
Lord Cullen of Ashbourne: My Lords, nobody deserves it more than the noble Lord.
Lord Shinwell: My Lords, then could I pursue the matter now that I understand that I deserve it? Is the Minister aware that I am not the only one concerned? I see around me and opposite me others here who are also concerned. There is a vast difference

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between 63 years of age and over 90. Obviously the Government owe some of us an awful lot of money!
Lord Cullen of Ashbourne: My Lords, things have changed a little in pension arrangements since the days when the noble Lord started work.
Lord Whaddon: My Lords, can the noble Lord clarify whether the figure of £600 million is calculated on the assumption that all the 63–65 year-old band would retire, or have any calculations been made as to the proportions of those who would retire and those who might wish to remain at work?
Lord Cullen of Ashbourne: My Lords, I tried to explain that. We are assuming that for people between 63 and 68 the pattern would be the same as it is now for those between 65 and 70.
Lord Avebury: My Lords, taking into account the saving in unemployment benefit that would have to be paid, has the calculation of £600 million also taken into consideration the income tax that will be paid by the young people who will find work as a result of this reduction and also of the indirect taxation such as VAT that will be paid on the additional purchasing power that would be generated?
Lord Cullen of Ashbourne: My Lords, I think all these matters have been taken into account.
Lord Kilmarnock: My Lords, arising out of the concern for the unemployed of the noble Lord, Lord Winstanley, would the Government consider raising the disregard figure which an unemployed person may earn while drawing unemployment benefits, particularly if they are thinking of taxing these benefits? May I further ask the noble Lord whether the Government would consider a two-tier unemployment benefit, allowing those who opt for the lower tier to earn on the lines permitted to pensioners such as the noble Lord, Lord Shinwell?
Lord Cullen of Ashbourne: My Lords, if I may, I will write to the noble Lord on those points.
Lord Wallace of Coslany: My Lords, would the Minister not agree that a lot of men at 65 cannot afford to retire at the present time, due to the increasing cost of living and the miserly approach of the Government?
Lord Cullen of Ashbourne: Or any other Government, I imagine one might say, my Lords. I am not sure that this is really a point I can go very far with.
Lord Leatherland: My Lords, would it not be cheaper and more beneficial than the suggestion made in the Question if an increase in pension were granted to those over 80 years of age? I am afraid I must declare an interest.
Lord Cullen of Ashbourne: My Lords, I think the noble Lord and his noble friend Lord Shinwell have a very similar view on this matter.
Lord Winstanley: My Lords, if jobs are to continue to be in very short supply, is it not high time that we started dividing such work as is available a little bit more fairly throughout the community as a whole?
Lord Cullen of Ashbourne: My Lords, I think I must make clear that it is very difficult to make any quick changes in this matter not only as far as the individual is concerned but also regarding the state and occupational pension schemes. In due course the earnings-related addition in the pensions will build up and then it will be very much easier to do these changes when people will be able to afford to retire on a slightly reduced pension.

Prayer Book Protection Bill [H.L.]
Lord Sudeley: My Lords, I beg to introduce a Bill to provide for parishioners of any parish to require certain forms of service to be used in the parish. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read 1a.—(Lord Sudeley.)
On Question, Bill read 1a, and to be printed.

Lloyds Bank Bill
Read 2a, and committed to an Unopposed Bill Committee.
National Film Finance Corporation Bill [H.L.]
Read 3a, and passed, and sent to the Commons.
Film Levy Finance Bill [H.L.]
Read 3a, and passed, and sent to the Commons.

Matrimonial Homes and Property Bill [H.L.]
Lord Simon of Glaisdale: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Unless, therefore, any noble Lord objects, I beg to move that the Order of Commitment be discharged.
Moved, That the Order of Commitment be discharged.—(Lord Simon of Glaisdale.)
On Question, Motion agreed to.

Merseyside Development Corporation (Area and Constitution) Order 1980
3.1 p.m.
The Parliamentary Under-Secretary of State, Department of the Environment (Lord Bellwin)The Parliamentary Under-Secretary of State, Department of the Environment (Lord Bellwin) rose to move,

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That the order laid before the House on 27th November 1980 be approved.
The noble Lord said: My Lords, this order establishes and defines the area of the Merseyside Urban Development Corporation, which the Government propose to set up under the powers contained in Part XVI of the Local Government, Planning and Land Act 1980. Section 134 of that Act enables the Secretary of State by order to designate an area as an urban development area if, in his opinion, it is in the national interest so to do. Section 135 empowers him by order to establish a corporation for the purposes of regenerating the area. This order sets up the Merseyside Development Corporation, with the task of securing the regeneration of 865 acres of land, largely comprising discarded and under-used dock areas in Liverpool, Sefton and Wirral, as delineated on the accompanying map.
As I explained to your Lordships' House during the passage of the 1980 Bill, the Government consider that the scale of the problems in the London and Merseyside docklands requires the establishment of new bodies with sufficient resources and powers, with the specific objective of regenerating their areas, working at all times in close consultation with the local authorities, the port authority and other appropriate local interests.
Following the laying of the order in late November, it was considered and judged hybrid. This meant that petitions could be made against the order by any interested parties. Only one petition was submitted, but was shortly afterwards withdrawn. I shall deal briefly with the corporation and its powers, and then with the area.
The board at present exists in "shadow" form, comprising a chairman, Mr. Leslie Young; a deputy chairman, Sir Kenneth Thompson; and the chief executive, Mr. Basil Bean. The purpose of this arrangement, which is well precedented, was to enable some progress to be made in the start-up period while the formal procedures were in train. If Parliament approves the order, the Secretary of State proposes to confirm the appointments of Mr. Young, Sir Kenneth Thompson and Mr. Bean to the board. Other appointments to the board will be made shortly and will include those, taking the words of paragraph 2 of Schedule 26 to the Act, "having special knowledge of the locality". The corporation will be tightly staffed. It will not be an inflated bureaucracy, but will buy in expertise, including using local firms, and will work with and use the services of the local authorities.
Part XVI of the Act provides for a wide range of specific and general powers to be exercised by the corporation, in order for it to carry out the substantial task of regenerating the designated area by bringing land and buildings into effective use, encouraging development, upgrading the environment and stimulating private investment. The order makes no exclusions from the range of functions which the Act allows urban development corporations to exercise—with one caveat. There is no current intention to bring forward orders that would enable the corporation to exercise either building control functions or the powers of a housing authority. The corporation will still be able, however, to secure housing provision under its general powers. It is the Government's intention that the full range of planning authority
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powers, which the Act permits to be conferred, should be exercised by the corporation. My right honourable friend accordingly intends to lay a further order (subject to annulment) before Parliament to secure this, as well as orders proposing the vesting of certain publicly-owned land in the corporation.
My right honourable friend announced on 9th February that £82 million would be available to the London and Merseyside UDCs in 1981–82. The estimates published last week show a level of grant provision for the Merseyside Development Corporation of £16.5 million. This sum is, of course, additional to the £17 million that has been allocated to the Liverpool partnership for 1981–82, and the £2 million-plus that Wirral, as an inner city programme authority, can also expect to receive under the urban programme. However, the possible allocation of further sums to the new development coporation in 1981–82 will be considered in the course of the year.
Provision for future years has yet to be decided but will, without doubt, reflect the high priority which the Government attach to the development corporation's task. Inevitably, in the MDC's first year of operation, much of the expenditure will be for land acquisition and initial reclamation work. But provision is also being made for environmental schemes, expenditure on roads, payments to local authorities and statutory undertakers and grants and loans under the Inner Urban Areas Act.
As to the corporation's area, four main factors have determined what that area should be: first, where the regeneration task of the corporation could best be brought to bear; secondly, the need to avoid prejudicing the operational requirements of the port; thirdly, areas where the provision of port-related industry by the corporation could best assist the needs of the port; and, fourthly, the need not to cut across the existing initiatives of local authorities in, for example, the declared industrial improvement areas. Accordingly, the urban development area comprises three tightly-defined parcels of land. Most of the land is in various public sector ownerships. About 75 per cent. of the total is owned by the Mersey Docks and Harbour Company, and much of the rest is owned by British Rail. Most of the land has passed out of its original port or port-related use and is in poor condition, decaying and unattractive, with poor access and infrastructure. Nevertheless, there are areas with thriving economic activity, often comprising small firms which have moved in, taking advantage of the low rents offered, but with poor conditions and little security of tenure.
To look at the areas in turn, in Liverpool the South Docks finally passed out of operational use in the early 1970s. Open to the tide, they have filled with polluted silt. But in spite of the dereliction, the area has its assets and it is here, particularly, that many of the old sheds now house small firms. Through dock reclamation and selective clearance, sites can be created in order to attract private investment. Here, too, refurbishment, good estate management, improved access, infrastructure and environment will be required, both to sustain and to enhance the existing firms, and also to attract new ones.
The adjoining riverside area to the south includes a partly-cleared area which was used for petroleum

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storage, and there is a major opportunity here to improve the environment by landscaping, and for some residential development. In the Bootle area of Sefton, the modern docks continue in active use but back-up land nearby for port-related use is needed. The area designated by the order presents opportunities for site assembly and marketing in support of the port. On the other side of the Mersey estuary, a further dock system lies between Birkenhead and Wallasey. Access is poor and major reclamation works are needed. Around the Woodside/Morpeth dock areas, there are further old buildings housing small firms and some operational port uses. The area presents considerable opportunities, but there is need to assemble land, reclaim it, provide infrastructure and better access.
In all the three areas, the single-minded approach of the corporation, combining development and planning powers, will be needed to make improvements, but it is well understood that there must be maximum cooperation with existing tenants and with the local authorities, as well as of course with the Mersey Docks and Harbour Company.
The shadow organisation that has been preparing for the establishment of the corporation has done a great deal of work to ensure that the corporation can be effective as quickly as possible. Its development strategy is largely complete, as is the preparation of its proposed initial projects. Numerous consultations have already taken place with the local authorities and with existing occupiers within the area, and also with the existing landowners, in order to decide what land should be acquired initially by the corporation.
The renewal of the dockland areas of Merseyside presents immense tasks and challenges. But they represent also a great opportunity for enterprise to flourish in the heart of one of our great cities. I am confident that the new, single-minded development corporation, with the powers that I have indicated, and with the substantial Exchequer finance which we are making available, will be able to make a major contribution to the badly needed regeneration and additional job provision on Merseyside. With that in mind, I commend this order to the House.
Moved, That the order laid before the House on 27th November 1980 be approved.—(Lord Bellwin.)
3.12 p.m.
Baroness Birk: My Lords, first I should like to thank the Minister for his very clear and brief exposition of the order. We should be quite clear at this stage that there is a great difference between this order and the London Docklands Order which at the moment is being considered by a committee of this House. So anything I say about the order—we on these Benches are not objecting to it—does not in any way apply to what might evolve during the discussions on the London Docklands Order.
So far as Merseyside is concerned, it has been accepted by the area itself and by the Members of Parliament who represent the constituencies in that area that there should be a UDC. Nevertheless, we recall that there was great discussion about it during the passage of the last Local Government Act. We on these Benches opposed in principle the setting up of UDCs because we felt that the local authorities
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themselves would be able to cope. But that is water under the legislative bridge. We are now dealing with this order.
If the object of the exercise—the Minister stressed this very strongly and very well—is to stimulate growth in Liverpool, it is recognised that the most basic industries are the docks industry and the dock-related industries. The Mersey Docks and Harbour Company now has debts of between £16 million and £20 million. Any receipts from the sale of those assets will have to go towards the repayment of debts to the stockholders. To start with, therefore, it looks as though the initial £16 million will be taken up in the repayment of debts to the stockholders of that company. Not only will they lose their capital assets; they will also lose the revenue. At the moment something like £½ million is coming in from the rents of buildings, houses and other property owned by the company.
Whatever funding arrangements are made through the development corporation, the Mersey Docks and Harbour Company should not be disadvantaged. It should be helped to become viable. Half of the surplus land which it is selling off is in an incredibly bad state. Once the land is cleared, there will be a need for considerable infrastructure: drainage, sewerage, access, clearing of buildings, land put into good order and areas of water filled in. The betterment of the community, as I understand it, is what this is all about, but it should not be done at the expense of the dock company itself. If the legal responsibility which was imposed on the dock company in 1971 when it ceased to be financially viable were removed, the Government could and should write off the stockholders' debt. The Government should pay that debt themselves and not leave it hanging around Liverpool's neck.
In Liverpool, the biggest industries are the Ford motorworks and food products. In Liverpool also the level of unemployment is extraordinarily high. There is an unemployment rate in the Liverpool area of 18 per cent., which includes the "journey to work" community. And unemployment is as high as 30 per cent. in the inner areas. Therefore, it is absolutely essential to create a new employment image. The old image has gone. It is no good looking for palliatives. Something more fundamental is needed. When the last Government were in power we were in the process of redeploying various Civil Service departments, but this was axed by the present Government. The PSA had gone very far towards redeveloping the Exchange Station site, but this was abandoned by the present Government. This has been costly in terms of jobs and financial and economic sustenance for Liverpool. Therefore, Liverpool has already been put into a worse economic state than it needed to be in.
Turning to the structure of the board, the Minister spoke of the shadow board which exists at the moment. Its membership is extremely important. It is very important that membership of the board should not be considered as a reward for local "worthies". It is essential that there should be 11 dynamic people on the board and that membership should not be regarded as an honour or as a reward. I do not know whether the Minister can help me, but at the moment I understand that there are very strong and fairly authoritative rumours that each of the local authorities

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will have one member on the board. Those local authorities are Liverpool City Council, Sefton, Wirral and Merseyside County Council. The deputy chairman, Sir Kenneth Thompson, was the chairman of the Merseyside County Council.
If this is so, it means that there will be a very grave imbalance in representation on the board. To take for a moment Liverpool City Council, which has 60 per cent. of the proposed land within its area, for it to have only one member on the board would seem to be rather ill-balanced. It would also mean that there would not be one Labour representative on the board. There will be three Conservative representatives from Wirral, Sefton and the county council. This does not include the deputy chairman who was the Conservative chairman of the county council. Incidentally, at that time he was very much against the setting up of the UDC. Liverpool City Council will be represented by a Liberal because the Liberals have control of the chairmanships, although the Labour Party on the council has one vote more. I do not know whether the Minister can help us over that point.
I agree with the Minister that it is important that the links with the local authorities must be very close and that there should be very close, practical cooperation as well. It is essential that duplication should be avoided. The Minister stressed the importance of co-ordination. However, I cannot help thinking back to the Local Government Act 1972 and to the National Health Service Act 1973 which resulted, though I do not suppose this was the intention at the time, in enormous empire building, a great deal of duplication and unnecessary levels of both manpower and administration. I should like to ask the Minister whether it will be made very clear that when Liverpool City Council is dealing with its planning applications its own department secretariat will be used, where necessary, by the UDC—this is just an example—rather than setting up its own. It would be bad if the UDC got off to a feeling locally that the territorial stakes had been wrongly allocated.
I should also like to ask the Minister what incentives there are going to be to attract enterprise to this area. Trade and commerce are in fact needed more than industry because there is no longer a strong and long tradition of manufacturing industry in Liverpool. I ask this because it is all very well to say that £16·5 million is now being allocated. I would suggest that it is a financial drip, not even a drop, of money at this time. The Minister has said that further sums will be considered in the course of the year. We really have to be realistic about that.
We are living at a time when local government is being cut by the Secretary of State and having the stuffing knocked out of it week after week—sometimes almost day after day. We have no commitment; there is nothing on which we can accept that there will be more resources automatically forthcoming in the process of the next year or so. If we look at what is happening at the moment in Liverpool itself, the rate support grant has undergone a cut of £6·5 million; the reduction in the Government grant as a proportion of the reduced national expenditure has cost Liverpool £2 million (that is to say, the drop from 60 per cent. to 59 per cent.) and the effect of the new block grant has cost Liverpool £6 million. Therefore there has
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been a cut of £14·5 million.
In another place an honourable Member drew attention to the case of Sefton, where, according to him, £19 million has been knocked off the rate support grant. That is in column 523 of Hansard of another place for 19th March, and when the Minister wound up he did not argue about that figure. Unless local authorities have their grants restored all that is happening is a changed pattern of expense and more and more pressure resulting on the local authorities. There is a loss of operational jobs through these cuts, so I do not know how this will improve the employment situation when on the one hand there is a certain amount of money going to the UDC and on the other hand the local authorities are undergoing cuts. It is really chopping it all off from the knees. I cannot see that this will work in any constructive or positive way.
The Minister mentioned the partnership schemes and the £17 million there. I am glad to know that the Government are continuing with that, because at the time when the Labour Government brought in these schemes they were strongly opposed by the then Tory Opposition, who did not feel that the Government should have anything to do with the matter but that it should be left entirely to private enterprise. But what in fact is private enterprise going to do when there is so much groundwork to be done?
I come back to the context of our national economic position at the present time. While the Government's policies are de-industrialising Britain, it does not seem to me that there will be a great deal of comfort in Liverpool and a great surge of people wanting to go there. It would be a terrible tragedy if the hope that people are putting into this exercise is not fulfilled. On the face of it, it seems when one first considers the figure for the urban development corporation of £16·5 million that it means a lot, but if people's hopes are going to be crumbled and the human misery, of which there is a great deal in the Liverpool area, is not really going to be alleviated it could be a very grave tragedy. We have no commitments and no firm undertakings that more resources—that is really the important thing—are going to be put into the corporation or into this area.
If we cannot hear something more positive from the Minister, it would seem—and indeed it does seem to many local people in Liverpool—that it could well be a most inauspicious time to take the initiative. If the Government would stop lumping public expenditure all together and saying, "Cut, cut, cut", and instead would differentiate between public expenditure on consumption and public expenditure on investment—and this surely is an important area of investment—then a great deal could come of it, because we do wish it well. We want to see something positive happening in Liverpool, but the Government's record and the amount of resources that they are going to put in together with the number of cuts that are going on in local authorities make one anxious about the result.
3.27 p.m.
Lord Evans of Claughton: My Lords, at the time of the passage of the Local Government, Planning and Land Bill through your Lordships' House I was very much opposed to the concept of the setting up of a fresh Quango in the shape of an urban development

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corporation for Merseyside and indeed for the London docklands. I felt then—and I still feel now—that with slightly extended powers to acquire property and to raise money, the duties that have been given to the development corporation of Merseyside could, and would, have been carried out very successfully by the Merseyside County Council. They would then have been carried out by people who are properly accountable and elected. I still believe that this section of the Act is otiose and unnecessary; but nevertheless it is there, and, as the noble Baroness, Lady Birk, said, there is no point in continuing to oppose it. I believe that if it gets off the ground successfully, and it is properly based financially, it can do a great deal of good for Merseyside.
Before the Act came into being, the county council on Merseyside—as no doubt the noble Lord the Minister will know—had carried out detailed negotiations with the Mersey Dock and Harbour Company with a view to the county council taking the land interest in the South Dock part of the proposed area of the urban development corporation. We were of course inhibited by the Mersey Dock and Harbour Company's knowledge that, if they received capital payments from the freeholder, they would go direct to the bond-holders. However inconvenient it is to the Mersey Dock and Harbour Company not to have that capital, I think it is absolutely right that the bondholders should get their money back. Very many people invested in the belief that they were investing in trustee securities when they bought the bonds, and it seems right that these people, many of them now very elderly, should be recompensed. If the development corporation has done nothing else than to release the freehold so that the bond-holders have restored that which is due to them, I think that will be very important to many people who bought in the genuine belief that they were buying gilt-edged securities.
The negotiations which the county council have had in hand for some considerable time have been held up by the parliamentary procedures to set up the development corporation, and inevitably the initiative which the county council took has been delayed. But now that the Government have forced through the legislation, we on these Benches want to see the task of revitalising the dockland areas of Merseyside proceed as quickly as possible and to ensure that the development corporation has the proper tools to do the job. When I speak of the proper tools for the job I am thinking, as anyone will who has taken part in the debate here or in the other place, of two things. The first is the acquisition of the land. The second is the provision of money.
Obviously even £16½ million is welcome, but as the noble Baroness, Lady Birk, has said, because of the changes in the block grant and the availability of capital resources from central Government, we on Merseyside have the feeling that what the Lord giveth the Lord also taketh away. This view is held with some feeling and cynicism on Merseyside and I hope that the noble Lord will be able to reassure us that this £16½ million is not a once-and-for-all payment—which we know—and that when the land has been acquired more money will be available for the generation of new life in this area. I hope very much that one of the things which the corporation will do will be
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to generate money from the private sector in encouraging amounts. That is very important indeed.
The second point I wish to mention in connection with the development corporation being able to get on with its job is that there have been, I believe, very protracted negotiations between the designated development corporation and the Merseyside Dock and Harbour Company about what is and what is not an operational dock. I gather that most of these negotiations have been completed and most of the differences have been resolved except for an outstanding difficulty over the Wallasey and Morpeth Dock areas, which lie on the Wirral side of the development corporation area. If these areas are not vested in the development corporation I doubt whether there would be any purpose in having a development corporation on the Wirral side of the area. I believe this to be a very important matter and a key one. I have spoken to various members of the local authority and to designated members of the board about this matter and I hope that this remaining difficulty can be resolved. Speaking as a person who lives in Wirral, to me it would be a tragedy if a lengthy hold-up occurred over the vesting of the area of the development corporation which lies on the Wirral side of the Mersey.
I welcome the fact that the development corporation—through its chairman, deputy chairman designate and chief executive designate—is proposing to use existing local authority facilities and other facilities. As the noble Lord said, it would be an excellent thing if the corporation continued to buy in local experience in all fields and kept its own bureaucracy to a minimum. I do not believe that Merseyside, nor the country in general, would forgive the development of another great bureaucracy. In the choice of the development corporation's chairman, Mr. Leslie Young, and deputy-chairman designate, Sir Kenneth Thompson, the Government have started well. We have had our differences—not with the chairman but with the deputy chairman designate, who was until recently leader of the county council and is now chairman of the county council—but I am sure that his experience in politics and in dealing with difficult politicians, with touchy and with awkward politicians, both here and in local government on Merseyside have been of great value. I am sure, too, that the professional and manufacturing experience of the chairman designate is very important indeed.
With the large number of local and other authorities in the area of the development corporation it is so important that between the corporation and the other agencies "co-operation" is the watchword. I share the concern expressed by the noble Baroness, Lady Birk, about the appointment of the rest of the board's members, although I could not prevent a wry smile about the way in which the Labour Party objects to, as it were, the first past the post system when it does not suit them. They ought to have supported my amendment in Committee in your Lordships' House which attempted to introduce a proportional system of electing members to the board. But, quite apart from the composition of the board, I do hope that there will be local authority members. It is a pity that at this stage some of the names at least have not yet been announced. The schedule to the Act requires the Secretary of State to consult the relevant local

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authorities about the composition of the board and to include members (and I quote):
"having special knowledge of the locality".
I am a member of Merseyside County Council and what is of particular concern to me is that there has been no general consultation with my authority over membership of the board. There has been a specific reference to us—What do we think about the appointment of Councillor X? But that is not general consultation, that is just asking us what we think about one particular person, and since that person is a fairly prominent member of our local authority it is not likely that we would say anything particularly offensive about him. In Merseyside we countered that by saying that we approved of the person named but also put forward the names of people in the Labour and Liberal parties who could be members of the board; I suppose, therefore, that I should have declared my interest. If the Act does require general consultation, it does not appear to have taken place either at the level of Merseyside County Council or, so far as I am aware, among the other district authorities in the area.
With regard to the composition of the development board, will it be the Minister's intention to appoint board members from county councils before or after the results of the next local authority elections in May? There cannot be much doubt that there may well be changes next May and it might be an absurd situation to appoint someone who was representing the largest party on a district authority or county council on 1st May but who was representing a minority party by the end of that week.
From these Benches, we wish the development corporation well. We tried to strangle the infant at birth, but now that it has survived we wish it well and hope that it will do something, if only a very little, to help relieve the terrible dereliction, unemployment and other problems we have in Merseyside. If so, then it will have been worth while. We hope that, in addition to encouraging manufacturing industry, assistance and encouragement will also be given to the development of service industries on Merseyside, which seem to succeed particularly well in that area. In that rather half-hearted way, I wish the development corporation well.
Lord Barnby: My Lords, in her remarks the noble Baroness, Lady Birk, mentioned unemployment. Since unemployment has been of such importance in the recent history of the port of Liverpool, will the Minister ease the anxiety that exists in the minds of many, and which is expressed in press reports, that there still remain in the port of Liverpool a considerable number of dockers who are not required for work but who still receive full pay? What are their numbers and for how lone will this situation continue?
For the rest, may I give my support to the proposals which the Minister put to this House with such clarity and helpfulness. As one who used the port of Liverpool regularly in the early part of this century, when I made frequent visits to the United States, I remember its eminence as one of the great ports of Europe. How different is the position in which it finds itself today! Probably, therefore, the proposals he is putting forward today are helpful, and it is certainly
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promising that this is being taken in hand in this energetic manner. I hope a successful outcome may result in relieving the difficulties of the port of Liverpool which the noble Baroness emphasised so strongly.
Lord Bellwin: My Lords, if I may deal with the points raised by the noble Baroness, Lady Birk, some of those were touched on by the noble Lord, Lord Evans, and I will try to deal with them together. As regards her concern as to where the money goes—she was anxious about the money going to the bondholders—I thought the noble Lord, Lord Evans, made a very fair point on that; I think it is right that they should be repaid. Perhaps more important, as a matter of principle, is the fact that the capital receipts from the sale of the surplus MDHC land to the development corporation flow to the MDHC bondholders, and this in fact would have happened in any case, because, as I understand it, under the terms of the bond to whomsoever the land was sold—
Lord Evans of Claughton: My Lords, will the noble Lord be kind enough to give way for one second? The concept that the Merseyside County Council was proposing with the MDHC was to take a lease, which would release the MDHC from having to pay a capital figure because it was merely to be a rent rather than a capital figure.
Lord Bellwin: Yes, my Lords, I know that, but the fact is and my advice is that this point is not directly relevant to the setting up of the MDC, because the proceeds from the sale would have to go to the bondholders. The fact is that financial support for the port is being considered in another place.
Baroness Birk: My Lords, if I may intervene—I was waiting for the Minister to finish the sentence—I do want to make it clear that I was not suggesting, nor would I, that the bondholders should not be repaid. I think that would be quite wrong. What I was suggesting was that the Government should take that financial responsibility themselves so that it did not come out of the money given to the MDC.
Lord Bellwin: My Lords, I note what the noble Baroness says as to that. The structure of the board seems to have caused some concern. I would have thought that what is most needed on this, or on any other board of this kind, is the right and best people to do the job. While we have said that we want to have as much representation as we can, and indeed we will try to ensure that, and there will shortly be some further consultations with the local authorities, I hope your Lordships will agree that at the end of the day the fact that it is somebody who is a member of the council now but may not be after May is secondary to the contribution which he or she can make to making this whole enterprise a success, because that is what it is really all about. I think the days of people being appointed because they represent one body or another have to take second place to their being appointed because of the innate abilities that they may have. Until we come to that kind of thinking generally, we will not succeed in having other than bodies which may become, as the noble Lord said, otiose and all the

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rest. So, although I will note carefully what has been said about the composition of the board, I hope your Lordships will take from me what I consider to be the greater need to have the right people doing the job.
The noble Baroness went on to ask what incentives will there be to trade and commerce. She referred to the £16 million as a drip. Well, it is a pretty substantial drip and one that is not easy to find, and I can think of many authorities who would be delighted to have even a little of that drip. But in fact, with great respect, that misses the point, because the object of this exercise—and if we do not achieve it then we—fail is to encourage other people, the private sector, to come in and make their investment. The money we put in can be called pump-priming money. If we do not get the private sector—and the same applies everywhere else, enterprise zones and so on—to come in with their money, then we will have no more success than in the whole of the inner cities programme, which we also consider as pump-priming money. We must get other people to want to come and invest; that is the object of this exercise. Having said that, it should be a comfort to the noble Baroness when I say that we are not considering this as a once-for-all proposal; it is an ongoing thing and we will watch it as we go on. We have to allocate money very carefully indeed.
I do not think anyone in Liverpool would argue other than that we recognise the needs of their particular city. Although I would not want to put it into a league table, I think it fair to say that the amount of money we put into Liverpool must be among the greatest that we give to any authority. There may be some greater, but I cannot think of one offhand. I do not complain about that, but I think it reasonable that I should point that out. As for what Liverpool does or does not lose or gain in grants, I do not think this is the occasion to debate that. I would simply say that the system for paying those grants is now both fairer and more able to be analysed and seen than under any system of this kind previously. When the noble Baroness criticises what the Government have done for Liverpool, I would ask her to compare it with what the Government she represented did for Liverpool. She talked about cut, cut, cut. It may be we would not have to cut so much if her Government had not spent, spent, spent, quite so much. Nevertheless, I was pleased that the noble Baroness wished the project well. She said that categorically enough and I accept that from her.
Finally to answer the noble Lord, Lord Evans, I have touched on his point about consultation, and I hope I have given him some reassurance on that. He said, I hope with tongue in cheek, that his support was somewhat half-hearted. I suspect it is a lot more than half-hearted. His heart is very much in Liverpool, as I know. I can tell him that only this very day I was talking with other elected Members from Liverpool, some of his friends, I am sure, who were far from unhappy at what we were doing about this; quite the contrary, they welcome it, and I am glad that we are able to do it. I have not covered all the points, but if either the noble Baroness or the noble Lord wish me to give more detail on any of the points raised, they know I will be only too pleased to do so. With regard to the observation by my noble friend Lord Barnby—it is always nice to hear him speak—
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I cannot offhand reply to his point about the dockers. I cannot give him that number; I do not think he expected me to do so today. Nevertheless, I welcome also his welcome for what we are proposing.
On Question, Motion agreed to.

Matrimonial Homes (Family Protection) (Scotland) Bill [H.L.]
3.50 p.m.
The Minister of State, Scottish Office (The Earl of Mansfield): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, that the House do now resolve itself into Committee.—[The Earl of Mansfield.]
On Question, Motion agreed to.
House in Committee accordingly.
[THE LORD ABERDARE in the Chair.]
Clause 1 [Right of spouse without title to occupy matrimonial home]:
The Earl of Selkirk The Earl of Selkirk moved Amendment No. 1:
Page 1, line 13, after ("in") insert ("actual".).
The noble Earl said: I beg to move Amendment No. 1. This is an exploratory amendment because I think that it is important to establish one or two matters as regards what exactly is a matrimonial home. If it is occupied it is quite easily identified, but if it is not occupied then clearly it is not so easy to tell. I think that we all agree about the Bill, but it does enter certain very delicate personal elements. The relations between married people are very delicate, very different and vary in many circumstances. The Bill gives overriding rights to the ownership of heritage. We have always been very careful in Scotland about the exact ownership of heritage and we have had public registration for about 300 years. It is important that we are clear about this matter. Certainly the major part of my amendment is to clarify the issue so far as possible.
How do we discover whether a home is a matrimonial home if there is not actual occupation? It is quite clear that it is a matrimonial home not only when there is occupation, because, if we turn to page 2, it states:
"if not in occupation, a right to enter".
How are we to know if a house is unoccupied that a wife has the right to enter it? I ask that question because such a situation may well arise. Let us suppose that the husband sells a country cottage or some agreeable place in Scotland. Let us suppose further that somebody buys it and the wife claims it as a matrimonial home. What happens then? We should have some idea about how the matter is to be treated.
I note, as a matter of fact, that in the Scottish Law Commission report it says that this overriding arrangement—because the matrimonial home overrides all other rights in land—is only justified if satisfactory procedures are devised to notify third parties. This will be a very important element. I should like to know whether my noble friend can give some indication as to

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how this should be done. I am suggesting in my amendment—and I know that my noble friend will not accept it; indeed, I am not suggesting that he will—that it would be perfectly clear if "actual occupation" of a house made it the matrimonial home. That presents no difficulty. But when it is not occupied it presents difficulties which might lead to angry bickering in the law courts and elsewhere as to whether someone has been deceived.
I should be grateful if my noble friend could say how he proposes to deal with this. There is a burden on him to do so because the Scottish Law Commission put in a Clause 7 which meant that matrimonial homes were to be notified, and so one could find out. At present, there is no means that I know of in the Bill of finding out, and if my noble friend could give an explanation I should be extremely grateful. I beg to move.
The Earl of Mansfield: I am grateful to my noble friend for setting the scene, as it were, in our deliberations in Committee on this Bill. I think that as the Bill is considered two matters will become apparent to the Committee. The first matter is that the Government are prepared to be extremely flexible over quite large areas both as to the drafting and as to the way in which the various parties to a marriage will exercise the rights given to them under the Bill. Secondly, I think that there will be running through the Bill a theme—which will become apparent—that in many, many cases the interpretation of the Bill when it becomes an Act will be left to the courts. That is something which I, with my background, find a wholly satisfying, extremely just and equitable way of—as I quite appreciate—regularising what can be extremely unfortunate circumstances in which two parties to a marriage or two people who have been cohabiting together find themselves in disagreement. From my previous experience, which is now long ago, in the divorce world, I know that it can create more bitterness, more upset and more lasting unhappiness than almost any other condition known to man or woman.
So far as a matrimonial home is concerned, of course my noble friend will know that there is a legal definition in Clause 20, to which I have no doubt he has addressed himself. I do not think that the courts will have any difficulty in interpreting what is a matrimonial home. So far as the amendment is concerned, "in occupation of a matrimonial home" means, I think, living in the home in a more or less regular way. As we debated on Second Reading, matrimonial home can extend to a number of different residences if the couple are lucky enough to possess them—in other words, a holiday home can be just as much a matrimonial home as the main residence in a town or wherever it happens to be. I think that a non-titled spouse in this situation, living in a home in a more or less regular way, should have the right to continue living in the home without recourse to the courts.
I know that my noble friend's amendment was really a probing amendment. However, if one substituted the phrase "in actual occupation" then it could be argued that the non-titled spouse who was absent from the home for a short period—for instance, on holiday or whatever—was no longer in actual occupation and
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to that extent he or she would then be homeless unless and until the court had granted an application for the enforcement of occupancy rights. So, if I may say so, I think that my noble friend's fear is perhaps less real than apparent.
The Earl of Selkirk: I shall not press the amendment. I am concerned to a great extent about third parties. I do not think that a husband and wife will present much difficulty but with third parties it may be difficult. However, I shall not pursue the matter now. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Selkirk The Earl of Selkirk moved Amendment No. 2:
Page 2, line 3, leave out ("includes") and insert ("does not include").
The noble Earl said: I beg to move Amendment No. 2. This is very largely a drafting amendment. I suggest, quite frankly, that the words which I am proposing are clearer than the words in the Bill. The position is quite clear. If a house is owned by two people it cannot be the matrimonial home of one of them. If a house is in shared ownership—I do not mean shared between husband and wife; I mean shared with a third party—it cannot then be declared the matrimonial home of one of the two people who own it. It seems to me important that the meaning should be brought out and I suggest that instead of saying:
"'titled spouse' includes a spouse who is entitled, or permitted by a third party,"
and then going on to say:
"only if that individual has waived his right",
we should start the other way round and say that:
"'titled spouse' does not include a spouse who is entitled, or permitted by a third party…unless that individual has waived his right".
I am not saying that there is a great difference in the wording, but there is a difference in emphasis and it makes it abundantly clear that if the house belongs to or is shared with some other party that person cannot have his rights removed by the place becoming a matrimonial home. That makes it quite clear. It is important that the position should be clear, because in those circumstances it is not a matrimonial home.
The Earl of Mansfield: I think that one should perhaps have regard to Amendment No. 3 as well as Amendment No. 2 because they both follow each other.
The Earl of Selkirk: Yes, that is right.
The Earl of Mansfield: My noble friend is seeking to change the drafting of the Bill, because he wants to have the matter stated in a negative manner rather than in the positive way which has been adopted by the draftsman in Clause 1(2). I am afraid that this is a battle of the draftsmen. I appreciate that Clause 2 is complex, but in my submission it is the concept that is complex, and not the obscure drafting which makes it complex. I appreciate what my noble friend has said, but I am afraid that I can do no more than hold to the drafting with which I have been provided, because I am informed that my noble friend's two amendments do not make the subsection any clearer than it already is.
The Earl of Selkirk: In that case, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 3 not moved.]
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 4:
Page 2, line 6, after ("his") insert ("or her").
The noble Lord said: We now come to a very important amendment which I am sure the Government will accept. It is absolutely impeccable and is in line with what the Government have done elsewhere. Indeed, it is in line with what they have done at line 14. It is to put in the words "or her", so that it reads "his or her right". The individual is not necessarily male; the individual could be female. I beg to move.
The Earl of Mansfield: In the interests of equality between the sexes, which in other respects the Bill scrupulously maintains, I am pleased to accept the amendment. Furthermore, I tell the noble Lord that I shall move amendments to Clauses 6(2) and 16(4) on Report if he likes.
On Question, amendment agreed to.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 5:
Page 2, line 14, leave out subsection (5).
The noble Lord said: This amendment is, of course, very much more important. We all approve the principle of the Bill, which is to give protection to spouses who are subjected to cruelty and, indeed, to violence. We do so by giving a new right to all spouses. Marriage in future, in respect of a home, will mean that the husband and the wife—whoever is the owner or the tenant—will have equal rights in occupation. That is the base upon which the whole Bill rests. Bearing in mind the circumstances of an application to a court in respect of confirmation of occupancy, it is wrong that we should put at the very end of this, not world-shaking but new departure in women's rights—because it is mainly women who will get the advantage of this—a way out:
"A non-titled spouse may renounce in writing his or her occupancy rights, either generally or"
particularly. Let us bear in mind the background. The background is violence. One can easily understand how duress can be used to make a wife sign a piece of paper. That is all the Bill says—"may renounce in writing". I do not think that that should be included at all.
I thought of strengthening the Bill, as has the noble Earl in some respects, but we must remember that this will never enter the minds of the great majority of spouses. But for those who are up against violence we should not give violence a triumph by making it possible for the violent attitude of a spouse to get a woman to renounce her rights, for if her rights go then this Bill departs. That, I think, is wrong. It is difficult to imagine many circumstances where it might be necessary, and it creates a huge loophole in the Bill which could adversely affect the rights of thousands. That is what the Women's Aid Committee in Scotland say, and I entirely agree with them. I hope the Government will look sympathetically at this amendment, which is much more important than the one which has just been accepted. I beg to move.
The Earl of Selkirk: I go about halfway with the noble Lord, Lord Ross. I agree that this is a very serious matter, but I cannot agree that it should be omitted altogether. I want to strengthen the position so that when a wife does renounce her matrimonial rights she does so more solemnly than is proposed in the Bill. Amendment No. 6 says that if a non-titled spouse gives up her right of occupancy of the matrimonial home she should do so either generally in writing signed before a magistrate or in a particular manner. I entirely agree that this might be a matter of coercion, and it will also be irrevocable as regards the house; so it must be done in a serious and solemn manner. But from the point of view of third parties there must be some way in which that right can be given up, otherwise no one would be willing to buy the house at all. There must be a means of doing it, and I suggest that it should be a solemn procedure which I designate in Amendment No. 6. It should either be in writing signed before a magistrate or:
"(b) in a particular matrimonial home by an attested writing in such form as the Secretary of State shall by order made by statutory instrument prescribe.".
That is how it should be done; otherwise, I entirely agree that this fundamental right should not be forced out of a wife.
Lord Mackie of Benshie: I think the Government will have to do something about this clause. As the noble Lord, Lord Ross, said, violence is at the core of the matter, and if the clause is left as it is then it is possible that a husband (and certainly in the history of matrimonial strife and violence it has been known that a husband can coerce his wife into doing practically anything under threat of violence) could threaten his wife. I shall be very interested to hear what the Minister has to say about this, but I am certain that he must do something. I do not think the clause can stay as it is. We appear to be discussing Amendment No. 6 as well. That, perhaps, would take much of the fear out of the situation, and would give a wife time to think. I shall be most interested to hear what the Minister has to say.
The Earl of Mansfield: I have a certain sympathy both with the noble Lord, Lord Ross, and with my noble friend, both of whom claim that subsection (5) is not entirely satisfactory as it stands, although they produce two very different remedies at opposite ends of the spectrum. If a renunciation made by a spouse has been obtained under duress or by virtue of some undue influence exercised by the titled spouse—and one assumes that it is most likely to be the husband in these circumstances—then, as I said on Second Reading, legal remedies are available and no court will hold it against a spouse who has been induced to renounce her rights under such circumstances. One must say that.
However, equally, I accept that the clause is not entirely right as it stands. The noble Lord, Lord Ross, asked whether there should ever be a form of renunciation. I agree with him that the circumstances in which, for instance, it might be in a wife's best interests to renounce would be rare. In its report the Scottish Law Commission produced a circumstance which it said was at any rate not unusual: where a

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wife's family, presumably with means, buys her and her fiancé or husband a house but wants to make jolly certain that the son-in-law does not have any rights in that house in the future, and where, if they were not sure, they would not produce their cash to buy the house. I believe that this happens from time to time, and one can understand that unless there is some built-in safeguard, or the house or the cash is put in trust, there would be no protection for the in-laws' money in those circumstances. So it can happen that it might be right and proper for one spouse or the other to renounce his or her rights, because one must remember that this Bill applies to either sex.
If one then considers how that renunciation should be made and in what form, one comes to my noble friend's amendment. The Government are not entirely convinced that it has to be in a form dictated by a statutory instrument. What I should like to do, if the noble Lord, Lord Ross, would withdraw his amendment and my noble friend not move his, is to take it away and think about it, and particularly take account of my noble friend's compromise proposal and see whether we can come up with something which will be fair and satisfactory at a later stage of the Bill.
Lord Ross of Marnock: We are proceeding very well indeed and very amicably. There must be something wrong wth the Scots today! This is sensible. I tried to find suitable words that would result in this half-way house. However, I do not accept the circumstances that the noble Earl thought would justify the renunciation. I have never heard of circumstances like that. It is not a very good basis for a marriage in the first place. Remember that all this has to be entered into before the home is bought. After the home is bought and they are both there, it is then that the renunciation should take place to give anybody a right of this kind.
I did not like the noble Earl's amendment. It is too complicated. I have never heard of a notary public in Scotland. I do not think there is such a term. We have all the English lawyers going to tell us what Scottish law is.
Lord Fraser of Tullybelton: Notaries public are common bodies to be found in Scotland. About half the solicitors in Scotland are notaries public.
Lord Ross of Marnock: I think we should have put in the term we all know—"solicitor"—and it would have been even clearer. On the basis that we are all going to search for better words, I am happy to withdraw the amendment.
The Earl of Selkirk: With great respect to the noble Lord, Lord Mackie, this is not simply a question of violence. This is also a question of the ordinary sale of property. If you are buying property somewhere and you have a matrimonial right overriding any form of tenure, you have to get rid of it. This will become a perfectly normal element in conveyance of property. Therefore, you have to have some simple way of doing it.
At the other end of the scale, you can have a certain amount of pressure. The words in this Bill are too slender. In a case of violence, all you have to do is to get your wife's signature on a piece of paper and put
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in the appropriate words above it. That method could be used too easily. There is need for a third party to make the position certain. That is certainly so in cases where you are giving up the right to a single matrimonial home. However, I am quite happy to accept what the noble Earl, Lord Mansfield, said.
Lord Ross of Marnock: I am sure that the noble Earl appreciates that under Clause 6(3)(a), where a house is to be sold consent in writing is written into the Bill.
The Earl of Selkirk: May we come to that in due course.
Amendment, by leave, withdrawn.
[Amendment No. 6 not moved.]
Clause 1, as amended, agreed to.
Clause 2 [Subsidiary and consequential rights]:
4.14 p.m.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 7:
Page 2, line 22, after ("on") insert ("non-essential").
The noble Lord said: This clause deals with the question of securing the subsidiary and consequential rights of the spouses. It says:
"For the purpose of securing the occupancy rights of a non-titled spouse, that spouse shall…be entitled without the consent of the titled spouse"
to do certain things. One will be able to take over payments and perform obligations without the consent of the titled spouse. When we look at the clause we see that it deals with the question of repairs and improvements. Then it breaks up repairs into essential repairs—which I think everyone should have the right to be able to do—and non-essential repairs. But when we look at paragraph (a) we see that it says:
"to make any payment due by the titled spouse in respect of rent, rates, secured loan instalments, interest or other outgoings (not being outgoings on repairs…)".
I should have thought it was right to say there that it should be non-essential repairs.
Then we get the same thing again in line 25:
"(not being an obligation in respect of repairs …)".
People cannot perform that. But it does not differentiate between non-essential and essential. Yet when we come to paragraph (d) they are allowed
"to carry out such essential repairs as the titled spouse is entitled to carry out".
There is a conflict there. There is a confusion there in words. It would be cleared up by the words that I would insert, because later on it is said that they can do any repairs they like, be they non-essential, if the court so orders.
It would be far better when we are giving these rights and obligations to make it clear that the non-essential repairs are very different from the essential ones that they should be able to perform. Things that probably have to be done in a hurry are essential; they should not be required to apply to the courts for them. I think that is the intention of the clause. The provision would be far better with these two amendments to lines 22 and 25 inserting the word "non-essential". I beg to move.
The Earl of Mansfield: I think that the noble Lord, Lord Ross, has misunderstood the way in which the clause is set out.
Lord Ross of Marnock: We had better change it then.
The Earl of Mansfield: No, do not grumble. What it does is to set out the rights of a spouse in a logical and comprehensive manner. In subsection (1)(a) are set out a number of payments of what I might call a periodical nature, such as rent and so on, and other outgoings, which I suppose could include such matters as feu duties. Then comes the exception,
"(not being outgoings on repairs on improvements)",
which is merely to tie paragraph (a) to the periodical payments. The point is that this subsection is intended to exclude all outgoings, all periodical payments except those that are set out in paragraph (a). Then further on down the clause it tells the spouses what they can do by way of making payments in relation to either essential or non-essential repairs. The amendment which the noble Lord seeks is quite inappropriate in this particular subsection.
May I come to the second amendment to which the noble Lord spoke, that is to say, Amendment No. 8, where the noble Lord is on much stronger ground and I am much happier. If the noble Lord would not move it on this occasion I shall consider it, and in all probability put down an appropriate amendment at a later stage. The reason I say that is that Amendment No. 8 is indeed helpful because what it would entitle a non-titled spouse to do is to pay for essential repairs which in fact have been carried out but not paid for by the titled spouse. A leaking roof springs to mind as a possible example. Thus, in Amendment No. 8 the situation refers to an occasion which arose before the right of the non-titled spouse had been created, but nevertheless the legal obligation is there and has to be discharged and I hope the noble Lord will be satisfied with my admittedly rather laboured explanation.
Lord Ross of Marnock: I did not think the Minister's reply was laboured in any way. I found his remarks most interesting. For example, he told us what Clause 2(1)(a) meant, and of course it does not mean what it says. That being so, we had better start looking for words to limit what that provision says to the regular payments to which the noble Earl referred. I hope there are no cases where there may be regular payments in respect of essential or non-essential repairs, because we should have to start thinking about it again. I think we could do without the words in parenthesis.
As for the second point made by the noble Earl, I agree in that it probably would be helpful to cover that particular point, so it would be wrong for the non-titled spouse to be there in occupancy for all practical purposes, to meet all the necessary bills and then to receive one she cannot meet. That would be quite unfair to the third party. That being so, I beg leave to withdraw the amendment and, on the advice of the Minister, I will not move Amendment No. 8.
Amendment, by leave, withdrawn.
[Amendment No. 8 not moved.]
Clause 2 agreed to.
Clause 3 [Regulation by court of rights of occupancy of matrimonial home]:
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 9:
Page 4, line 36, leave out from ("spouse") to ("may") in line 37.
The noble Lord said: I tabled this amendment because the point made in this provision, which it is proposed to delete, seems unnecessary. It says:
"…if he or she has occupancy rights".
The whole thing arises because they have occupancy rights, and therefore I thought the inclusion of this phrase was otiose or, to repeat a phrase I heard from the Liberal Benches earlier dealing with Liverpool, "otiose and unnecessary". I beg to move.
The Earl of Mansfield: If Clause 1(5) were deleted, then of course these words would be superfluous, and I have already undertaken to examine Clause 1(5) and I therefore hope these words could fall to be examined in the same context.
Lord Ross of Marnock: In that case, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 10:
Page 4, line 41, leave out ("is satisfied") and insert ("appears to the court").
The noble Earl said: I will speak at the same time to Amendment No. 12, if that course is convenient to the Committee. These are the first of a number of amendments which enable the court to come to a view without the application going to a formal hearing of evidence—a proof—which might be necessary if the word, "satisfied" were to be interpreted in a strict sense. It is not thought desirable that the court should be required to hear evidence before coming to a decision merely because the non-applicant spouse or partner is not present or represented in court when the application is considered. There might be considerable delay if a formal proof was always required, which would be undesirable particularly where there was a history of violence. In these circumstances, prompt action is needed. In all cases the application will have been served on the other spouse, who will therefore be aware of what is being alleged. If that spouse chooses not to go to the court to challenge what is being alleged, it is reasonable that the court should be able to accept that the allegations are correct.
Lord Fraser of Tullybelton: While I do not wish to oppose the amendment, I suggest that the subsection as a whole should be looked at. It begins by saying, "The court shall grant an application". I should have thought we were here in a discretionary kind of region and that more appropriate words might be, "The court may grant an application", which would seem to go better with the substitution of words being proposed. I am not sure whether I should be making this point now or on the clause stand part.
The Earl of Mansfield: The noble and learned Lord could certainly make his observation on the clause

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stand part, if he did not wish to make it now, but I will certainly bear it in mind.
On Question, amendment agreed to.
4.25 p.m.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 11:
Page 5, leave out lines 22 to 24 and insert ("An interim order shall not be made unless the applicant spouse appears personally before the court").
The noble Lord said: The requirement for the non-applicant spouse to be afforded an opportunity of being heard or represented could of course be impossible to meet. A man might have left his wife in an owner-occupied house and disappeared, may be for weeks, months or years, yet she may need occupancy rights quickly in order to meet the payments about which we spoke earlier. From that point of view, I believe it would be wrong to impose the obligation that an interim order should not be made unless the titled spouse was heard. Bearing in mind that the application is for only an interim order which can subsequently be varied by the court in the light of the circumstances of the case, we should be justified to make this change so as to ensure speed. The words would then read:
"An interim order shall not be made unless the applicant spouse appears personally before the court"
and is able to satisfy the court of the necessity for speed and action to preserve her rights and benefits of occupancy.
The Earl of Mansfield: The reason behind the words as they appear is that if they did not it would be possible to apply to a judge in chambers for an interim order to protect a spouse's interests before the action was served against the other spouse. The interim order in such circumstances would be granted on the ex parte statement of the applicant or even simply on a written application. The existing provision requires that an interim order can be made only if the non-applicant spouse has been given an opportunity to be present in court. That will be done by serving on him or her a copy of the application and a note of the date, time and place when the court will consider the application. It is not necessary that the non-applicant spouse attend at that time; only that he be given the opportunity to do so if he wishes. This overrides the danger of a one-sided statement being given without any opportunity of rebuttal.
But the matter goes much deeper and more seriously than that because if the proviso were not to be made, a husband—let us assume for these purposes that he is the subject of such an order—might be quite unaware that he is subject to an order, and that order might restrict his occupancy rights in the matrimonial home. There could be an exclusion order and of course a power of arrest attached to that interim order, in which case he could, by coming back to the home, find that he is breaching a court order merely by going upstairs without having heard anything previously about the court hearing. I suggest that is a quite unjustifiable position. The proviso is intended to avoid it by ensuring that the husband can argue his case or be represented before the court, and I suggest that in common justice he must be given that oppor-
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tunity.
The noble Lord's alternative is unsatisfactory. It does not provide a safeguard for the non-applicant spouse, since it would enable the interim order to be made without the non-applicant spouse being given an opportunity to present his, or her, side of the case, in particular if he or she disagrees with the statements in the formal written application. In effect a person in this position could be arrested, because for these purposes service need be carried out only by post, by way of recorded delivery. So if someone were away from home, the papers would be deemed to have been served on him even though he might know nothing at all about the proceedings. I hope that with those reasons I have illustrated that the amendment is quite unsatisfactory and not acceptable.
Lord Ross of Marnock: I am not entirely happy about what the Minister has said on the matter. There remains the point that the man might have left his spouse; he might have disappeared, with no intention of returning home. How long a period must elapse before the requirements of the Bill are satisfied in terms of his having been,
"afforded an opportunity of being heard by or represented before the court"?
How is the period in which to do that defined? What is to be the time lag? Nothing at all is indicated. In the meantime the wife might be in an unfortunate position, having gone to the court and been granted occupancy, yet unable to exercise her rights simply because of this particular provision in the Bill.
We are dealing here with an interim order. We are not dealing with an exclusion order, to which different conditions apply. The noble Earl jumped ahead to the matter of an arrest, which can be attached to an exclusion order. I think that here he has gone too far in trying to meet my argument. However, I shall be satisfied if he gives some indication of the time that would have to elapse in respect of affording,
"an opportunity of being heard by or represented before the court".
In the meantime the wife and family are probably waiting for justice that they cannot get.
The Earl of Mansfield: I do not think that I can help the noble Lord beyond repeating what are the procedures in these instances. The non-applicant spouse will have served on him, or her, a copy of the application and details of the time and place of the hearing. That is as far as the applicant spouse need go. If the non-applicant spouse does not attend, or does not choose to play any part in the proceedings, then it will be up to the court to make such order as it thinks fit; but at least the non-applicant spouse will have been given an opportunity of meeting the case—and that is the important part of the matter. What I object to, and what the Government object to, is the proposal that the procedures should be started without the non-applicant spouse knowing anything about them, still less being able to defend himself or herself.
Lord Mackie of Benshie: Will it follow that if the non-applicant spouse cannot be found, the proceedings will go ahead in any case?
The Earl of Mansfield: I tried to explain that point earlier. Very often spouses go missing. They become fed up with what I might call the matrimonial conditions. In that eventuality all that is required is that the non-applicant spouses be notified of the hearing. The court will fix the time for the hearing and the parties can prepare their cases. If the non-applicant spouse chooses to ignore the notification or do nothing about it, then he, or she, will have to bear the consequences.
Lord Drumalbyn: Does my noble friend mean that the non-applicant spouse will have been deemed to have been,
"afforded an opportunity of being heard",
if notice of an application is sent to him at what is his usual address? I think that the difference between what is being said on opposite sides of the Committee relates to the point that it is very probable that the non-applicant spouse will want to ensure that he is not available. He might want to get out the way so that it is not possible for the notice to be served on him. Surely one can recall examples of other legislation where notice is deemed to have been served if it has been sent to the person concerned at the address at which he is accustomed to receive such notices. Could not a provision along those lines be added in order to resolve the difficulty?
The Earl of Mansfield: I am obliged to my noble friend, but I really do not think that there is a difficulty here. Notice of the proceedings can be served on the non-applicant spouse in person, or by post, either at his last known address or at his place of work. I also understand that the court can serve the notice by way of edict if the address of the non-applicant spouse is really not known. As the Bill stands there is no injustice towards either party. The applicant spouse can obtain his or her relief, while at the same time nothing can be done without the non-applicant spouse having the opportunity to defend himself, if his whereabouts can be ascertained. It is as simple as that.
Lord Fraser of Tullybelton: I think that the Minster is plainly right on this matter. It should be intolerable if there could be pronounced an order excluding a man from what had hitherto been his home without his knowing anything about it. He might return home and find himself in contempt of court by entering what he thought was his own house. There could well be a malicious wife who made entirely unfounded assertions against an absent husband, and he might return to find that position prevailing. In my submission, it would be absolutely intolerable to allow that to arise.
With regard to the question about difficulty of service, there is often great difficulty when a person cannot be found, but in the end edictal citation is a well-established method of dealing with that situation. The man's friends or family may pick it up and pass it on to him. If the man absents himself deliberately, makes himself inaccessible, it is his own look out.
Lord Ross of Marnock: That being so, I think that the Government ought to look at the whole of Clause 3. We are dealing, first, with the application for a court order, which does the real damage. Then there is the provision:
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"Provided that an interim order may be made only if the non-applicant spouse has been afforded an opportunity of being heard by or represented before the court".
That is the first that one hears about,
"an opportunity of being heard by or represented before the court".
It does not apply in relation to what has gone earlier.
Leaving that point aside, am I to understand that what is meant is that the court itself will decide on a date on which the hearing will take place, and that the court itself will convey that decision to the non-applicant spouse? If the non-applicant spouse does not respond to that notification, will it be taken that he has been afforded an opportunity but has not taken advantage of it, and so the proceedings will go ahead? If that is so, then the matter of timing is being left to the discretion of the court. If that is the case, I am quite satisfied, and I should be prepared to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 12:
Page 5, line 37, leave out ("the court is satisfied") and insert ("it appears to the court").
The noble Earl said: I have spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 13:
Page 6, line 9, after ("writing") insert ("to the court").
The noble Lord said: This, too, is familiar, because here we come back to "may renounce in writing". This is the application in respect of possession or use of furniture and plenishings. I felt that we had to strengthen it. The amendment adds the words "to the court" after the word "writing". It may be that the noble Earl is not satisfied that "may renouce in writing to the court "is strong enough. It may be that we could have a look at this again. Perhaps the Minister can tell me what form the Government think this renunciation in writing will take. The danger still arises in relation to violence.
The Earl of Mansfield: If a spouse renounces the right to apply for the possession or use of furniture and plenishings, there will be no application to the court under Clause 3(2) and in that case the court should not be concerned with the renunciation. It would be intolerable, if not unnecessary, for a court to act as a kind of filing system of renunciations in these circumstances. If the renunciation takes place after court proceedings have commenced, I am advised that court procedures will be able to take care of this situation. I am saying to the noble Lord that there is in fact no necessity, no point, in his amendment, and I hope he will withdraw it.
Lord Ross of Marnock: I can only visualise this being applied after a hearing or during the consideration by a court. I will take the word of the Scottish Office. If they say the words are unnecessary, I am glad to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3, as amended, agreed to.
4.43 p.m.
Clause 4 [Exclusion orders]:
Lord Ross Lord Ross moved Amendment No. 14:
Page 6, line 17, leave out (""the non-applicant spouse"").
The noble Lord said: With Amendment No. 14, perhaps I may speak to Amendment No. 16. It is virtually the same. This is in the interests of clarity, to get rid of unnecessary parenthetical phrases. In one case, I have changed "that" and put in the word "other". We have in the first instance
"'an exclusion order' suspending the occupancy rights of the other spouse".
We have titled spouses, non-titled spouses, and non-applicant spouses. To my mind the subsection would be very much clearer (as also would be the following subsection) and would lose nothing in meaning if, first, we got rid of these parenthetical phrases, and if, in the second case, we got rid of "non-applicant spouse" and made it read, "the other spouse". I think that is clearer. It is otherwise very confusing and muddled. I beg to move.
The Earl of Mansfield: I appreciate that the noble Lord has tabled what is to him, possibly, drafting amendments which would improve and simplify the language. I think the removal of the words "non-applicant spouse" would create problems in other parts of the Bill, since the reference in Clause 4 implicitly defines what is meant by "non-applicant spouse". Furthermore, if it was removed it would require a number of consequential amendments elsewhere in the Bill.
I think we have to consider how this admittedly clumsy piece of English came to be in the Bill at all. The basic problem which the draftsmen of the Bill had to face was the desire to appear even-handed as far as the sexes were concerned, not only as to their rights but as to their language. Therefore, the basic problem is to avoid the use of "his" or "her". I know that the Interpretation Act covers that point happily by, in effect, equating "her" with "his"; but I do not think that would be a solution which would commend itself to the feminine interests who are particularly to be protected by this Bill. So it was in these circumstances that the term "non-applicant spouse" came to be framed. It may appear somewhat contrived, and it is one which does not have much use in normal speech—certainly not in my normal speech. Nevertheless, it is very useful in the context of the Bill.
It is more precise than the use of the word "other", which the noble Lord, Lord Ross, proposes to insert in Clause 4(2), and it can be used in circumstances when the word "other" would not do. For example, in Clause 4(6) reference is made to "the non-applicant spouse". If the words "the other spouse" were inserted in its place, the section would lose some of its clarity and a more elaborate form of words would be necessary. Something like, "the spouse other than the spouse who applied for the interim order" would have to be inserted. That is even worse than the present position. As I have said, the term is used in a number of places in the Bill and it provides a useful way of describing these particular people even if the language
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is cumbersome. The term "non-applicant spouse" can apply either to the "titled" or to the "non-titled" spouse, depending on the circumstances. I agree that simplicity of language might be a good aim, but in order to achieve clarity and, at the same time, to maintain this non-sexist stance, more contrived language would be needed.
The Government are very flexible on this and are open to suggestions. I at one moment timidly suggested that the word "respondent" might be used as being well-known and really quite easy to understand; but I am informed that while that is in common use south of the Border it is not so north of the Border, and perhaps would be undesirable. If any noble Lord has any suggestions as to how to get round this—and I am sure the noble Lord, Lord Ross of Marnock, will see that his drafting amendments, although perfectly felicitously phrased in the context of this clause, simply would not do if repeated throughout the Bill—I should be happy to consider them. In any case, we shall continue to search to see if we can find a happier phraseology.
The Earl of Selkirk: The noble Earl is flexible but I hope he will not make the Bill less clear than it is at the present time. The words "titled" and "non-titled", let alone "other spouse" and "non-applicant", are very confusing. These are specialised words, and unless they are made perfectly clear it will lead to nonsense.
Lord Ross of Marnock: In the first four lines we have "titled spouse", "non-titled spouse" and "non-applicant spouse", which, in the first instance, was an afterthought and was put into inverted commas or brackets. Frankly, I had never intended the word "other constantly to be used instead of "non-applicant spouse". If I had sought to change that, I would have done so earlier, where it is first mentioned—even in the last amendment that we were dealing with. I am concerned about the immediacy of understanding. Let us read it as amended:
"…either spouse may apply to the court for an order … suspending the occupancy rights of the other spouse".
Surely that is perfectly clear. You do not need the following words in the Bill:
"('the non-applicant spouse')".
The other suggestion I made is the words:
"for the protection of the applicant or any child from the conduct of the other spouse".
The words "applicant" and "other" go together. I am not suggesting that we should go through the whole Bill and wherever we have "non-applicant spouse" that we should change it. There are places where it is right. But it is certainly quite unnecessary here and it is confusing, surrounded as it is with words such as "titled", "non-titled", "spouses", "spouses are entitled" and then "other spouse" and "non-applicant spouse". As many a man would say, let us get rid of some of the spouses. I would get rid of this particular non-applicant spouse in line 17 of page 6.
I hope that the Government will think again. They have misunderstood the suggestions as to what I want to do. If I wanted to change that I would have sat down and done it. I should not like to keep the

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Scottish Office up next weekend the way they were probably very busy this last weekend. I have tender thoughts occasionally for that office. I shall have another look at this amendment. I am not happy about the Government's attitude. I think they are muddle-headed here. I shall beg leave to withdraw the amendment.
Lord Simon of Glaisdale: It is with great trepidation that an English lawyer intervenes on a Scottish Bill. But the noble Earl's argument went far beyond Scottish legislation in a rather alarming respect. By the Interpretation Act one can use "he" to include "she", et cetera; and that avoids a great deal of peripheracy. It is rather an alarming thought that we are now going to jettison that useful shorthand because of the susceptibilities of those who insist on a complete sexual equality which is really quite inappropriate in the field of parliamentary drafting.
The Earl of Mansfield: I am sure that, having listened to the debate, the noble and learned Lord will now understand the conditions in which this Bill came to be drafted, and the way in which it is sought to get over—if that is the word a number of difficult problems. I particularly agree with what my noble and learned friend said, that clarity is all and that through drafting one should try, above all, not to make what it is sought to be clear more obscure. I respectfully agree with the noble and learned Lord and would use the word "his". I am a titled spouse and most of those in this Committee are. I do not mind being personally labelled a chauvinist when it comes to the interpretation of statutes. Nevertheless, the Government feel that they have to tread very warily—like Agag—in certain circumstances. I think that we are going about it in the same way, although the Government are very well aware of the noble and learned Lord's strictures.
Amendment, by leave, withdrawn.
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 15:
Page 6, line 19, leave out ("is satisfied") and insert ("appears to the court").
The noble Earl said: In moving this amendment, perhaps I may also speak to Amendment No. 18. These are further amendments to remove any question that in undefended cases the court need hear evidence before coming to a decision. If the spouse against whom an exclusion order is applied for chooses not to appear to defend the application, there is no reason why the applicant spouse should require to lead evidence to back up statements made in the application. If the non-applicant spouse disputes what is stated in the application, he or she can defend the case. I beg to move.
On Question, amendment agreed to.
[Amendment No. 16 not moved.]
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 17:
Page 6, line 21, at end insert ("or is likely to be").
The noble Lord said: This is more than just drafting. The subsection reads:
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"the court shall make an exclusion order if it is satisfied that the making of the order is necessary for the protection of the applicant or any child of the family from any conduct of the non-applicant spouse which is injurious to the physical or mental health of the applicant or child".
I suggest that it should better read:
"which is or is likely to be injurious".
One of the great difficulties in this whole field is proving the violence of the husband. We have not dealt yet with the question of corroboration. I have known cases where the police could go along, having been summoned by a wife, and because there is no corroboration except her actual word, they can do nothing. I have known them stand outside the house hoping the violence may be repeated within their hearing. What I want to do is try and get this before it goes too far. We should appreciate that it is enough to prove the risk of injury—mental or physical—to a child or wife, as the case may be, to get action taken.
The revised wording would allow the court to grant an exclusion order where there was a risk of conduct injuring physical or mental health. That is before the breakdown and the violence had actually occurred on this particular occasion. This is not an easy matter; but it is desirable that these words should be put in the Bill. It leaves it to the discretion of the court. There are difficulties in respect of proof and people say: "Why wasn't action taken?" Action was not taken because the court had not the power to take it.
If the court thinks that there is likely to be violence to the extent that it is going to be injurious to the health—mental or physical—of the wife or child, then they should be empowered to act. That is why I suggest we put these words in the Bill. I beg to move.
The Earl of Mansfield: The amendment would considerably widen the kinds of conduct which the court might regard as being sufficient to warrant the granting of an exclusion order. At present the court must be satisfied that the conduct is injurious to the physical or mental health of the applicant spouse. As the noble Lord said, by this amendment he seeks to extend this to include conduct which is likely to be injurious. There is a belief that in its present form the clause requires evidence that physical or mental injury has already occurred to be given, and that this evidence might not be readily available. I concede, as the noble Lord, Lord Ross, said, that the matter is by no means easy.
The granting of an exclusion order, as several noble Lords have stated, is a serious step, not least because it will almost always attract the power of arrest and, as noble Lords have equally said, it excludes the non-applicant spouse from the matrimonial home. So the Government consider it right that where the applicant spouse, or the children for that matter, require protection, a powerful remedy such as this should be available. But one has to take care that the liberty of the non-applicant spouse is not unjustly curtailed.
It is not easy to draw a dividing line between where conduct ceases to be what I might call "unpleasant" and reaches the point where it is likely to be injurious to physical or mental health. For instance, there could be a sudden loss of temper with a verbal argument, and I suppose that if the argument was sufficiently

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violent it could be regarded as likely to be injurious to mental health. Such an interpretation might well be justified if there was an earlier history of violence. In that case the earlier violence would be a factor in the court's consideration of otherwise tolerable behaviour. But in most cases I am sure noble Lords would agree that it would be inappropriate to grant an exclusion order on the basis of such loss of temper.
The Government are also alive to the possibility that if there are too many applications for exclusion orders on flimsy grounds the courts may be reluctant to grant them, even in cases where they are needed. So although I concede that there may be some anxiety that the subsection as drafted might require proof of physical or mental injury, the subsection does not say that a court shall grant an exclusion order only where there has been physical or mental injury. It says that a court shall grant such an order where it is necessary to protect a spouse or child from conduct which is injurious; that is, tending to injure. So it is up to the court to decide when conduct may be considered as being such that it is tending to injure.
I think that the noble Lord has attempted to amend the subsection in the wrong part of the sentence. I think what he is trying to cure is the situation where a court is satisfied that it is likely future conduct which is going to cause the injury rather than past conduct which is going to cause future injury. So to that extent perhaps an amendment should be drafted in a rather different form. By way of conclusion, may I say to the noble Lord that I think the whole of this part of the clause needs to be re-examined; and that I intend to do between now and the next-stage of the Bill.
Lord Ross of Marnock: I would agree with the noble Earl on that. We will need to read this with the changes that are already going to be made regarding this question of protection. There will be some changes in subsection (5) of this clause, which are mainly of a drafting nature. I, too, will have a look and see whether it is right that the anticipation of violence, or the words which I hope will lead the court to take action in anticipation of violence, should be put in somewhere else. I realise that the Minister is sympathetic towards the points that have been made, and with that in mind I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 18:
Page 6, line 24, leave out ("is satisfied") and insert ("appears to the court").
The noble Earl said: I have spoken to this amendment, and I beg to move.
On Question, amendment agreed to.
5.5 p.m.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 19:
Page 6, line 29, leave out from ("Act") to end of line 42.
The noble Lord said: We have in this Bill set out to try to protect people and to give them greater freedoms within their own homes. In this amendment I have tried to remove what I think is one of the worst features of this Bill. We are prepared to grant protection to
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everybody else but not to people who are in tied cottages. If a husband is violent and he lives in a local authority house, action can be taken, but, if a husband is violent and lives in a tied cottage, no matter what he does to the children or his wife they are going to get no help under this Bill. I know the Minister will say that that is not exactly true but, when you read this clause, together with another later one which deals with the same thing, there is no argument about it. The Bill, to my mind, takes away the discretion of the courts to act in these particular cases—that is, where the matrimonial home is part of an agricultural holding or is let as an instrument of employment, and so on.
As it stands, I think it undermines what we feel should be the paramount principle of the Bill—namely, that protection from conduct injurious to physical and mental health should be the most important consideration to the court. This clause will allow a man in a tied agricultural house or in a house which is used for business purposes to be violent to his wife without danger of exclusion. Of course, the criminal aspects of it would still come in, but, if what we seek to do here is to give the spouse and the family protection and freedom of the home, then there is no help here. The Scottish Law Commission at pages 54–55 addressed itself to this question of balance, and the members came to this conclusion:
"The court should not, we think, be precluded from having regard to such consequences"—
that is, loss of employment and so on. They finished up by saying:
"The court should at the same time have a residual discretion not to grant an exclusion order in those special cases".
They felt, however, that the court should be required to make an exclusion order if it was satisfied that the need for protecton arose, "unless there are exceptional circumstances". In other words, we leave it to the court. But here we do not leave it to the court: we put it into the statute. Would it not be better if we ended subsection (3), as I suggest, in line 29 at the word "Act", and then said:
"The court shall not make an exclusion order if it is satisfied that the making of the order would be unjustified or unreasonable having regard to all the circumstances of the case"—
rather than bringing the attention of the court specially to the question of the tied cottage, the business property and so on? I think that, because we did not take the action in. Scotland in relation to the tied cottage, though that was done in England, we are denying the wife in those particular cases the protection which, very often, a court would give her. Before an eviction took place it had to go before the sheriff, and the sheriff would usually grant the whole family six months if it were a question of eviction. But here the non-titled spouse—the wife—is going to have no protection at all, and I think that that is quite wrong. It may well be that the person who owns the tied cottage would be quite prepared to allow the non-titled spouse to stay there, but I am afraid that the whole thing is weighted here. It destroys and undermines the whole principle of a very desirable Bill. I beg to move.
Lord Collison: May I briefly support this amendment? Your Lordships would expect me to do so. I know that this is Scotland and not England and that there are

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considerations affecting the tied cottage in agriculture and houses which are used for business purposes in other industries. Nevertheless, I do not think that those considerations can override the right of the spouse to have the same protection as anyone else. It is quite wrong that these exclusions should be deliberately mentioned in the Bill, and I agree with my noble friend that it would be much better to terminate the clause at the point he suggested. People in tied cottages are at a disadvantage anyway, but your Lordships will not want me to go into that very broad subject. However, the noble Earl on the Front Bench opposite should give careful consideration to what has been said, and I hope that he can say something to us which will give my noble friend and myself some satisfaction.
Lord Mackie of Benshie: I must say that, for the first time, I disagree. I must declare an interest, because I am a farmer and in this case I can see incredible difficulties arising. It would place many farmers in an intolerable position, if the house of a stockman was taken up by his wife. There must be other solutions. What I said applies also in the case of agricultural holdings. If a farmer in a let farm was excluded from the house, it would make the running of the farm extremely difficult. I think that other solutions need to be found in this case.
Lord Drumalbyn: Before my noble friend replies, I wonder whether I may ask him to explain a little how these two legs of subsection (3) will work. I notice that paragraphs (a) and (b) are connected by the word "and". I have read that as meaning that in every case the court would have to look at Clause 3(3) together with the requirements of paragraph (b). Secondly, I do not quite understand the construction of paragraph (b). The words,
"subject to a requirement that the non-applicant spouse or, as the case may be, both spouses must reside in the matrimonial home",
are not the same as in the draft Bill which is attached to the Scottish Law Commission's report. What is the significance of that? I do not understand that. I hope that my noble friend will tell us the significance of the difference between the two drafts.
The Earl of Mansfield: If I may say so, I think that the noble Lord, Lord Ross, is under something of a misapprehension in the case of this amendment, probably prompted by his dislike of tied houses, and that has prompted the noble Lord, Lord Collison, to spring to his defence. I shall not say anything about tied houses in Scotland and their desirability or otherwise. What I shall say is that what this subsection does is to give the court a complete discretion.
What the Scottish Law Commission did when it proposed this subsection was to give the court discretion in the case of, for example, service tenancies and tied cottages. In those circumstances, the court has a discretion where occupancy of the home by the non-applicant spouse was a condition of the lease. If that spouse were excluded, the tenancy might come to an end and then the applicant spouse would lose his or her occupancy right under Clause 5(1)(b), and the object of the exercise would be frustrated. I wish to emphasise that the court is given only a dis-
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cretion not to grant an exclusion order; it is perfectly possible for an exclusion order to be granted against someone living in a service tenancy, if the court feels that it is reasonable, right and proper in the circumstances.
So what, then, is the situation which was envisaged by the Law Commission when it made this recommendation? For instance, it could be an isolated tied cottage where a husband could not find suitable accommodation which would enable him to continue his employment if he was excluded. However, in other circumstances—for instance, if suitable alternative accommodation could be found for a non-applicant husband, and his employer accepted that his exclusion from the matrimonial home did not terminate the lease—it would be perfectly reasonable for the court to make an order under Clause 4(3) and it would be at liberty to do so. Whether the exclusion order means the loss of the tenancy, with the result that the roof over both of these people disappears, is a matter for the circumstances of each case. It is a matter which each court will have to take into account.
All that subsection (3) does is to enjoin the court to have regard to these differing situations which I have tried to illustrate. The words of the clause draw to the attention of the court and the applicant spouse the conditions to which the court must pay heed before either making or not making an order, in order to avoid the court granting an order which effectively led to the applicant spouse losing his or her home and not only occupancy rights.
I am afraid that I do not know why the present draft varies from the Scottish Law Commission's draft. It is by no means unusual. But I shall let my noble friend know verbally, if I get the answer, or otherwise. He asked me how subsection (3) was constructed. Under paragraph (a), the court has to pay regard to the circumstances set out in Clause 3(3). Paragraph (b) applies only if the home is in one of the categories referred to in Clause 6(1) or 6(2). I hope that that satisfies my noble friend.
What I want to say to the noble Lord, Lord Ross, who put down an important amendment, is that nobody is being denied any rights. In effect, the court is being urged in statutory form to consider all the aspects of the case, and to do justice according to the possibilities of the situation.
Lord Ross of Marnock: I should have hoped that the court would do that anyway. If my amendment were accepted, that injunction would still be laid upon the court. Subsection (3) reads:
"The court shall not make an exclusion order if it appears to the court"—
if I include the new words which the Minister has inserted—
"that the making of the order would be unjustified or unreasonable—
(a) having regard to all the circumstances of the case including the matters"
referred to and not excluding others. There is no doubt that, by mentioning specifically the matrimonial home being an agricultural holding, a service cottage or a business carried on from there and affecting employment, that it is putting the balance away from

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the protection of the wife and family as regards the matrimonial home.
It is also taking for granted that the noble Lord and all the other farmers in Scotland would allow that kind of thing to go on. What would they do with a worker of that kind? Would they not interfere? They would probably take other extreme action. They would probably evict him, in which case the wife and children would again be homeless. But I know Scottish farmers and farmworkers. Very few of them will make applications. It will not mean ruin to those who are applying for exclusion orders on their husbands. The noble Earl knows quite well that there are no more tender-hearted people than farmers when it comes to an exclusion order which has been granted by the court. It does not automatically mean that the wife and family would be put out by a Scottish farmer.
It has been put to me—and I have a great deal of sympathy for what they say—that the tied cottage problem in Scotland is different from that elsewhere. In Scotland we have the sheriff. The noble Earl is a Scottish farmer. He could not throw people out without the sheriff coming along and safeguarding certain human rights for the individual. I do not think that this is fair. Its implication and effect are important. It has been taken by the noble Earl, looking at it from the farming point of view, to mean that whoever else the Bill applies to, it will not apply to people living in service cottages, be they tied cottages, police cottages, or anything else. That is a matter for considerable regret.
I do not propose to divide the Committee upon the amendment but I am very unhappy indeed about the Government's insistence upon the inclusion of these words. I do not think they add anything. To my mind, they take away the discretion of the court, by virtue of the fact that the court has to look specially at this, which is in addition to all the other things that they have to take into account. It is quite unnecessary and, to my mind, it is something which weakens the Bill and its effect.
The Deputy Chairman of Committees (The Earl of Listowel): Is the amendment, by leave, withdrawn?
Lord Ross of Marnock: No; but I will allow it to be voted down.
On Question, amendment negatived.
5.22 p.m.
The Earl of Mansfield The Earl of Mansfield: moved Amendment No. 20:
Page 7, line 1, after ("shall") insert (", on the application of the applicant spouse,").
The noble Earl said: Perhaps I could speak to Amendments Nos. 29 and 51 when I move this amendment. These amendments are necessary to comply with the accepted court procedure that the court may grant only what is specifically requested in the application before it. The court is still obliged to grant the orders under Clause 4 and to attach a power of arrest under Clause 14. The amendments do not provide for any element of discretion by the court. It is expected that the solicitor acting for the applicant spouse will as a matter of course include in the crave
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of the application all the orders which the Bill provides for that spouse's protection. In relation to exclusion orders, the amendment to Clause 14 needs to be read in conjunction with the amendment to Clause 4, to provide a new subsection 6(A). This has the effect of requiring every competent application for an interdict to seek a power of arrest, and the court has no discretion to refuse such a request. I beg to move.
On Question, amendment agreed to.
The Earl of Selkirk The Earl of Selkirk moved Amendment No. 21:
Page 7, line 4, after ("interdict") insert ("inter alia").
The noble Earl said: May I take Amendment No. 26 along with Amendment No. 21. This amendment inserts the words "inter alia". The sheriff may grant an interdict inter alia prohibiting the non-applicant spouse from entering the matrimonial home. It is intended to give to the sheriff a very wide discretion as to what he wants to do. Subsection 5(a)—this is Amendment No. 26—puts in a power prohibiting the non-applicant spouse from entering or remaining in a specified area. I object to the words, "specified area". This is too vague and too uncertain. I do not know what it can mean. I am satisfied that sheriffs are sensible people. They will not do stupid things. None the less, you are giving to the sheriff a power which is completely new to Scots law and which could have an extremely wide extension.
What is a "specified area"? Is it the gardens and the immediate surroundings of a house? Is it an area, or a parish? Is it a district? Is it a town, is it a county or, I may even say, is it Scotland? All of those areas are within the power of a sheriff. I do not think that they should be extended so far as they are. I should prefer to allow the sheriff to have wide powers to do what he thought to be appropriate in this case.
I should also like to make this point. If a specified area is made and a man goes in there to make some purchases or because he has business there, immediately he is liable to arrest. This is a very strong power. I shall say a word or two presently about arrest. I am not quite certain that the free use of arrest in the Bill is not extended a great deal further than it needs to be.
I would ask the Government either to accept my amendment and to leave it for the sheriff to decide what is appropriate or to find a very much more satisfactory definition of the words "specified area". The Scottish Law Commission use words which give a much more narrow sense:
"An interdict prohibiting the husband from entering an area which includes the matrimonial home itself".
That gives a sense of it being two or three streets around the house, which could be appropriate. A "specified area" could mean anything. I would ask the noble Earl either to accept what I am suggesting, to leave the sheriff perfectly free to do what is proper, or to find some much more narrow sense in which the term "specified area" could be used. All we want to do is to prevent the wife or the husband from being molested. The words used here are widely in excess of what is essential initially for that purpose. I beg to move.
Lord Fraser of Tullybelton: I should like to support

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the noble Earl, Lord Selkirk. It seems to me that this is giving an unduly wide discretion to the sheriff. What we want to do is to, prevent the husband from standing outside the front door or at the end of the street in such a way as to frighten the wife or to annoy her every time she goes in and out of the house. If the specified area were defined as being an area immediately adjoining the house, thus putting a limit upon it, I should have thought that was what was intended and that it ought to be stated in the Bill. As the Bill at present stands, it seems to me to be unduly wide and unnecessarily wide.
Lord Ross of Marnock: The noble Earl kept using the words "in a specified area", but the Bill says "in a specified area in which the matrimonial home is situated". This is very much more limited than what the noble Earl seemed to imply. He even used the word "Scotland". If common sense is used, I think the sheriffs will be able to specify the area in which the matrimonial home is located in a very much more restricted way than that. I certainly could not support this particular amendment of the noble Earl.
The Earl of Selkirk: May I make this point to the noble Lord: it is not that I think that the sheriffs are stupid but that we are giving powers which are grossly in excess of what is required. I am always against giving powers which are wider than necessary. That is the point which my noble and learned friend Lord Fraser of Tullybelton made, and that is what I am objecting to.
Lord Ross of Marnock: I can assure the noble Earl in relation to the kind of case we are dealing with and the kind of persons we are dealing with—the violent husband who is determined to continue to be violent in respect of both the wife and the children—that shortly I am going to move an amendment which he may think is even wider but which I believe to be absolutely essential in relation to the history of the cases which have built up in Scotland over a period of time. I do not think that there is very much question about the desirability of "specified area in which the matrimonial home is situated". That really means the street and what the noble and learned Lord, Lord Fraser of Tullybelton, suggested: the immediate surroundings of the home.
Lord Drumalbyn: The difficulty is that a man's place of work may be in the same area.
Lord Ross of Marnock: But not in the area of the home.
The Earl of Mansfield: It is not wholly satisfactory that my noble friend moved Amendments Nos. 21 and 26 together. If I may take Amendment No. 21 and hopefully dispose of that, if Amendment No. 28 which I intend to move in due course is accepted by the Committee then such provides for any supplementary interdicts. It will provide for an appropriate element of discretion on the part of the court. I hope, therefore, that the noble Lord will see fit to withdraw that amendment.
I come now to Amendment No. 26. The Govern-
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ment believe that subsection (5)(a) is a necessary provision which should be open to the court. It is, for instance, intended that an excluded husband should not be allowed to loiter in the street outside the matrimonial home. If he has been guilty of domestic violence in the past, this is bound to be upsetting and can be intimidating to the applicant wife. The intention is that in more urban surroundings a close, a stair or a street might be an appropriate "specified area", but I readily concede that there may be exceptional circumstances which arise and the sheriff may wish to depart from the norm.
I appreciate that this represents a considerable departure from the existing principles of Scots law. Nevertheless, the Scottish Law Commission considered that it was justified and the Government think the same. If I may turn to paragraph 4, subparagraph 18, the Law Commission says:
"It is not presently competent under Scots law to interdict a person from being in a public place and it is accordingly not possible in cases of apprehended domestic violence to prohibit the violent husband from entering any specified public area near the matrimonial home. In our memorandum we propose that in such cases it should become competent not only to interdict the husband from entering the matrimonial home but also to interdict hint from entering a specified area surrounding that home.".
It goes on to argue and reflect and eventually comes down in approval of a system which apparently obtains in England and Wales but I dare not quote that in the presence of the noble and learned Lord from Scotland.
Be that as it may, it seems to me that the argument in that part of the report which I have quoted is—I will not say conclusive, because we are having a debate—certainly a very powerful one and I think that the power that is given to the sheriff to protect wives in this instance needs to be rather wider than it would be if the Committee were to accept my noble friend's amendment.
I cannot conceive that at the moment I can say in honesty that I will take this away and think again because it is difficult to know what the Government could do about this. What I can say to my noble friend is that, if he would like to have conversations or to make any suggestions between now and the next stage of the Bill, then, of course, the Government would be happy to consider them and to have discussions to see whether a form of words that might commend itself to the Law Society of Scotland and the Faculty of Advocates can be devised.
The Earl of Selkirk: I readily accept what the noble Earl has said but I do not think it is as difficult as he suggests. An area immediately surrounding the matrimonial home would suit me entirely, but the specified area is quite unspecified. It is an enormous area and it is, as the noble Lord said, an entirely new innovation in Scots law. If he is prepared to consider something of that sort I should be glad to have the opportunity of discussing it. I will not press this further now but I think it is an innovation which should not go without observation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.35 p.m.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 22:
Page 7, line 8, leave out ("except with the written consent") and insert ("without the express permission").
The noble Lord said: This will be a little more lighthearted. If noble Lords will glance at subsection (4)(b) they will see that the excluded spouse is prohibited
"from entering the matrimonial home without the express permission of the applicant",
but when it comes to removal by the non-applicant spouse (that is the husband) that can only be done "with the written consent". Why the change of phrase from "express permission" to "written consent"? I suggest that they should both be the same. It is as simple as that. I beg to move.
The Earl of Mansfield: I think the noble Lord and I agree that there could be circumstances in which a spouse against whom an exclusion order had been made might need to enter the matrimonial home, for instance, to collect something from it. It would be absurd to require that spouse to obtain a court order to enable him to enter the home if the other spouse has no objections. So what the Bill therefore provides is that the other spouse can permit, either entry to, or the removal of an object from, the matrimonial home. Permission to enter can be given verbally but consent to the removal of any item of furniture or plenishings has to be in writing.
This may seem to be an onerous condition, but it provides protection for both spouses and the important part is that the consent of the spouse occupying the matrimonial home in those circumstances is in fact to a degree a derogation from the court order and I would expect that such a consent would refer to a specific item or items. The noble Lord may agree that if there was a subsequent dispute as to the facts, a written record as to what permission had been given so far as the removal of effects is concerned could be invaluable.
So this really is for the protection of both spouses. Supposing it was, as the noble Lord suggests, with the "express permission" and there was subsequently a genuine complaint, the court would then be in a position where it might treat that as a breach of the interdict. But if the spouse in occupation who had given the consent had either genuinely misunderstood what was being asked or mischievously decided to go to the court, having changed his or her mind thereafter, the excluded spouse could then be accused of a breach of interdict and be liable to arrest. So we think it is better for each party to accept minor inconvenience; in other words, to have the consent put in writing and gain the safeguards, which could be very valuable. Except for children, in a disputed marriage nothing is so contentious as property.
Lord Ross of Marnock: I think the explanation has been foolproof. We have to remember that we are dealing with unreasonable and unhappy people, and it may well be that we have to give them both express permission in order to enter, and once they have entered, if they are to be allowed to take something away, it all has to be listed and duly signed and sealed. I think one of our difficulties in relation to this is that
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it is always reasonable people who have to make the laws for the safeguarding of fairly innocent people from those who are unreasonable and violent. I certainly accept the explanation given by the Minister and I beg leave to withdraw the amendment
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Lord Nugent of Guildford): I should perhaps explain that if Amendment No. 23 is agreed to, I cannot call Amendments Nos. 24 and 25.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 23:
Page 7, leave out lines 11 to 13.
The noble Lord said: Not for the first time have I complained of appearing to be tough in giving people rights and then suddenly putting in at the last minute a proviso that virtually destroys these rights. Before it was Clause 1 in respect of the easier enunciation; and here we are doing it again. With exclusion orders having mandated the court to take certain action if it is satisfied, we then come to this very weak two and a half lines:
"unless the non-applicant spouse satisfies the court that it is unnecessary for it to grant such a remedy as it is mentioned"—
although these words are going to be deleted at a later stage. To my mind, without the provisions of Clauses 4(4) paragraphs (a) to (c), an exclusion order would be useless, certainly as a remedy against violence, and it would only suspend occupancy rights without putting the violent person out. Surely that decision was taken a long time ago to come to this particular point. I do not see what they add to this clause in respect of the exclusion order because the court does not make an exclusion order unless it is satisfied that the making of the order would be justified and reasonable. Why do we have these words at this particular point, when we say in subsection (4) that in making an exclusion order the court shall do what is laid down in paragraphs (a), (b) and (c), unless the non-applicant spouse satisfies the court that it is unnecessary? If it is unnecessary for that it is unnecessary for an exclusion order. That is what it comes to. I suggest that these words are unnecessary in saying what we really mean in respect of exclusion orders in the earlier part of this clause.
Once again I fear that in giving this let-out one is buoying people up with the hope that they are going to be free from violence, but then leaving it to the court to be persuaded that the non-applicant spouse does not require to be treated in this particular way. If these words are necessary, one can forget all about the exclusion order; if one means what one says about the exclusion order, then these words are unnecessary. I beg to move.
The Earl of Mansfield: I would have hoped that the noble Lord would have commented on, if not covered, Amendments Nos. 24 and 25, which are Government amendments and which I believe provide a reasonable and perfectly satisfactory compromise. What the noble Lord seeks to do is to deny the court any discretion in relation to the granting of a warrant or interdict sought to make an exclusion order effective. I accept that without Clause 4(4)(b) there is little purpose in

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having an exclusion order, but there could be special circumstances. For instance, if the non-applicant spouse has left home and it is obvious he has no intention of returning, then Clause 4(4)(a) would not be appropriate, and if he had another fully furnished home neither would Clause 4(4)(c) be appropriate. Therefore, I suggest to the Committee that there should be an element of discretion in these matters. This is what I have sought to achieve in Amendments Nos. 24 and 25.
With the leave of the Committee, I should like to speak to Amendment 24 because, as has been pointed out, if the noble Lord's amendment is agreed to, that would exclude Amendments Nos. 24 and 25. I do not have very much more to say. The Government consider that Clause 4(4)(b) is an almost inevitable ingredient of an exclusion order and propose that that should be mandatory. But Clauses 4(4)(a) and 4(4)(c) in circumstances which I have sought to illustrate might not be appropriate, and in those circumstances I feel that the court should have a certain amount of discretion in the matter and that the removal of this discretion is not warranted. To put it in another way, the removal of the court's discretion in relation to Clause 4(4)(b) is a sufficient safeguard as to the effectiveness of an exclusion order. For that reason I hope that upon reflection the noble Lord, Lord Ross of Marnock, will withdraw his amendment.
Lord Ross of Marnock: I am not all that keen at times on half-way houses. I am still not convinced of the undesirability of removing these lines, but at least the Government have gone some way in remoulding, this by leaving out the Clause 4(4)(b). In view of that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 24:
Page 7, line 11, after ("unless") insert (", in relation to paragraph (a) or (c) above,").
On Question, amendment agreed to.
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 25:
Page 7, line 12, leave out ("as is mentioned in paragraph (a), (b) or (c) above").
The noble Earl said: This amendment is consequential and I beg to move.
On Question, amendment agreed to.
[Amendment No. 26 not moved.]
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 27:
Page 7, line 16, after ("area") insert ("or areas, including an area").
The noble Lord said: This amendment brings us back to something we were discussing earlier; the specified area. I suggested that I was going to widen this a little—not widen the area exactly but widen the discretion of the courts in respect of the area. Sometimes the family are at risk outside the home and not just in the surroundings of the home. It has been known for violent husbands who have been dealt with by the courts to accost their wives at school when they are meeting their children or at their place of work. The implication of the effect of my amendment would
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be to leave it to the court to specify more than one area if necessary, in addition to the area in which the matrimonial home is situated. That is going to be looked at again.
This point is one that arises from experience; violent husbands have gone to the place where their wives work, or to a school, and have treated them to another dose of the violence which probably led to the original trouble with the courts. These are areas which the husband may predict from his knowledge will be used by the family or his wife. If the Minister can give me some assurance that he is prepared to look at this matter, I would not wish to delay the proceedings and will withdraw my amendment.
The Earl of Mansfield: I am tempted to say that with my noble friend, Lord Selkirk, on one side and the noble Lord, Lord Ross of Marnock, on the other the Government's drafting is probably just about right.
Lord Ross of Marnock: What a poor argument.
The Earl of Mansfield: I shall resist the temptation to do so because I am being so gracious to everyone tonight. What I do say to the noble Lord, Lord Ross, is that his amendment has difficulties which he may not altogether have appreciated. He is perfectly right in saying that it would greatly extend the areas from which the non-applicant spouse could be excluded by mean of an interdict, and it could lead to such a person being prohibited from entering areas around the other spouse's place of work, or indeed, the children's school. I do not believe this is a solution which would be favoured by the Scottish Law Commission. If this amendment or anything like it were accepted, it would be necessary to define such areas very strictly indeed, particularly if the spouses worked near to each other, for instance!
Being serious, I believe that in fact we have got it nearly right as the Bill is drafted, although I have undertaken to see whether it should be tightened. I say that for this reason. If an applicant fears that the non-applicant spouse might molest her at her place at work, for instance, or at the children's school, she can claim an interdict from the court restraining him from such conduct. This has nothing to do with the matrimonial interdict at the time she applies for it. Under Clause 13(2) it would be defined as a matrimonial interdict, and it would, therefore, or could, attract the attachment of a power of arrest under Clause 14(1)(b). So the wife or the applicant spouse would be afforded a very considerable measure of protection. I would have thought that these provisions as they stand would be sufficient to deter a non-applicant spouse without the necessity to restrict his freedom of movement unduly.
Naturally, as I have undertaken to my noble friend that I will look at this I will also look again at the points the noble Lord, Lord Ross, makes, but I am bound to point out that I think he is already catered for to an extent, or rather his spouse is already catered for, by the existing law.
Baroness Gaitskell: May I intervene for one moment in support of my noble friend and against the Minister. We hear every other day of instances where this occurs.

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I do not know why the Minister is resisting this. It is a very common occurrence. What is there against it?
Lord Fraser of Tullybelton: May I venture to encourage the Minister in his attitude? If there is a fear of the wife being accosted or molested at her work or at the school, she can get an interdict against that conduct by her husband. But this proposal is to exclude the husband from entering or remaining in an area. To say he is not to go to the area where the school is or where the wife works, which may be in a street down which he has to pass to his own work or for some perfectly legitimate reason, is quite a strong thing to do. She can get an interdict against him misbehaving there. If it is unnecessary, as I should have thought it was, to have this order excluding him from going to the area at all, I should have thought it was desirable not to extend the power beyond what it is at the moment. What the Scottish Law Commission recommended was excluding him from an area which included the house, which is I think exactly what is in the Bill. I should have thought there was great objection to extending it to other areas unless it is absolutely necessary, and as far as I can see it is not necessary.
Lord Ross of Marnock: It was because I considered it absolutely necessary that I put the amendment down. I would not have done so otherwise. This is not a question of drafting. Here was I, prepared to defend the noble Lord's and the Scottish Office's drafting against the noble Earl, and he turns round and suggests that I take a different point of view altogether. I am putting in the need for this "other area" point of view, and I am very glad of the support from the noble Baroness in regard to this. It is true that this is what happens. I had a letter from the Women's Aid Committee in Edinburgh, who are dealing with this kind of thing day in and day out. They know far more about it than people who are drafting legislation or even than those of us who are sitting solemnly deciding what should be done. They feel that protection is required because it does happen; a husband has been able to predict where his wife will be at a certain time of the day, perhaps collecting the children from school, and has gone there and made scenes. The same thing applies to the place of work.
Remember, we are dealing with a violent husband. It is going to be a terrible hardship if he has got to make a roundabout route to go to work because he is banned from the area! That is the least of what I would wish upon him. Remember, the action is only being taken because the court decides it is necessary. The discretion is there for the court. When we are dealing with the question of the situation of the home, we should deal at the same time with the question of the possibility of violence and the molesting of the wife and children elsewhere. It is not good enough to say that if it happens they can get an interdict. I know an awful lot of people who do not apply this when it comes to getting an interdict against people poaching and fishing for trout. I am not too satisfied with that business. Here we are dealing with something very much more serious and more dangerous.
I am very disappointed indeed at the reaction of the
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Minister to this suggestion. This is not drafting; this is meeting a practical problem by putting in two or three words, and it still is at the discretion of the court There is nothing very draconian about it. I am sorry if the Minister cannot see his way to accepting it, but if he is going to look at it again I will also look at it again. We have always got another stage and another go, and it may well be that we will come to agreeable solutions. In view of that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 28:
Page 7, line 29, leave out ("protection of the applicant or any child of the family") and insert ("proper enforcement of an order made under subsection (4) above or paragraph (a), (b) or (c) of this subsection").
The noble Earl said: This amendment is intended to limit the other orders which the court can make to those which are supplementary to orders of the kind specified elsewhere in Clause 4. This is desirable so that an unreasonably sweeping interdict will not be available. I beg to move.
The Earl of Selkirk: I think I rather regret this in some ways. You are confining the applicant "as aforesaid" to simply three things—the ejection of the husband, the entering of the matrimonial home and the removal of furniture. It seems to me that the Bill as drafted—"protection of the applicant or any child of the family"—gives a wider context, and is the purpose for which this whole thing has been raised. Now we are narrowing it down to three points, though I do not say they are not necessary. The circumstances in which this sort of thing happens are multitudinous, and there may be circumstances which bring in the protective element required which are not included in subsection (4). There may be some better reason the noble Earl has for doing this, but I do not see that his present reasons are adequate.
The Earl of Mansfield: I really do not think the Scottish Law Society would like to hear my noble friend talking in this way. He moved an amendment which was specifically designed to fetter the court's discretion and (as it were) to preserve the non-applicant spouse's freedom of movement. Here am I in effect moving an amendment which will give the applicant spouse all the protection that he or she could possibly need, but which at the same time will have the effect that what I call an unreasonably sweeping interdict which might unjustifiably infringe the non-applicant spouse's freedom of movement will not be available, and my noble friend then complains about that. I think that this really is quite a reasonable provision, if one stops to think about it.
On Question, amendment agreed to.
The Deputy Chairman of Committees: The next amendment—No. 29—has already been spoken to.
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 29:
Page 7, line 32, leave out ("where it appears appropriate" and insert (", on the application of the applicant spouse,").
On Question, amendment agreed to.
Lord Ross of Marnockhad given notice of his intention to move Amendment No. 30:
Page 7, leave out lines 37 to 39.
The noble Lord said: This amendment deals with a point which we discussed earlier and I withdrew the amendment on that occasion. I do not think that we need to repeat the discussion and, therefore, I shall not move the amendment.
The Earl of Mansfieldhad given notice of his intention to move Amendment No. 31:
Page 7, line 39, at end insert—
(" (6A) It shall not be competent to grant an interdict ancillary to an order made under this section unless the power of arrest referred to in section 14 of this Act is attached to such an interdict.").
The noble Earl said: It is slightly unusual for the Government to say "not moved", but I must tell the Committee that we are reconsidering the drafting of this amendment and in the present circumstances I shall not move it.
[Amendment No. 32 not moved.]
Clause 4, as amended, agreed to.
Clause 5 [Duration of orders under ss. 3 and 4]:
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 33:
Page 8, line 6, after ("(b)") insert ("subject to section 6(1) of this Act").
The noble Earl said: I beg to move Amendment No. 33. This amendment removes the possibility of conflict between Clauses 5(1)(b) and 6(1)(a) so that an order under Clause 5(1)(b) will only terminate an occupancy right if the dealing, usually to sell the matrimonial home, has the consent of the non-titled spouse. As presently drafted, Clause 5(1)(b) could provide a loophole for a titled spouse to deny the other spouse his or her occupancy rights. I think that this amendment meets my noble friend's point in the next amendment, Amendment No. 34. I beg to move.
The Earl of Selkirk: I should like to thank the noble Earl. This amendment saves me the bother of moving the next amendment.
On Question, amendment agreed to.
On Question, Whether Clause 5, as amended, shall stand part of the Bill?
Lord Ross of Marnock: I should like to make only one point, and that is to draw the Government's attention to the fact that even the termination of marriage—be it divorce or anything else—does not mean to say that the troubles of the wife or the ex-wife are over in respect of the ex-husband's activities and actions. It may well be that the continuation of an exclusion order would be required.
The Earl of Mansfield: I think that the point is that on termination of the marriage different rights accrue and the courts will have different ways of preserving them.
Clause 5, as amended, agreed to.
Clause 6 [Continued exercise of occupancy rights after dealing]:
[Amendment No. 34 not moved.]
6.5 p.m.
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 35:
Page 8, leave out lines 31 to 34.
The noble Earl said: I beg to move Amendment No. 35 and I should also like to speak to Amendments Nos. 44 and 79. These amendments extend the protection against any dealing which might prejudice the occupany right of the non-titled spouse, to those living in caravans, houseboats and other structures. This protection is also secured for spouses with joint title to such a home. The amendments remove the area of disadvantage which residents of caravans, houseboats or other structures had in terms of the Bill compared with spouses living in a house.
The Scottish Law Commission recommended that its main proposals relating to occupancy rights should extend to caravans, houseboats and other structures. The draft Bill, however, specifically excluded them from the definition of "matrimonial home" for the purposes of protection against an adverse dealing. This was because their scheme (which envisaged a decree of annulment of the dealing) was restricted to homes which were heritable property and so capable of being registered in the Register of Sasines or the Land Register, when it came into operation. This could not be the case with movable property such as caravans. The scheme was consistent with the original recommendations for matrimonial home notices and a greater reliance on registration as a means of securing protection, both for non-titled spouses and third parties. One of the positive results of the Government's decision not to follow those proposals is that the reasons for excluding caravans and so on from the definition of "matrimonial home" no longer apply. The amendments will accordingly bring to those living in caravans and so on, all the rights and protection available under the Bill to those living in houses. I beg to move.
Lord Ross of Marnock: A very unusual conjunction—the noble Earl, Lord Mansfield, and the Lord Ross of Marnock, but I welcome on this occasion that the Government have adopted the suggestion of a very suitable amendment. I think that it would have been unfair to limit the protection or to deny it in respect of caravans and the like. I am very glad indeed to have the support of the noble Earl as regards this particular amendment.
On Question, amendment agreed to.
The Deputy Chairman of Committees: The next amendment is No. 36. I should explain that, if Amendment No. 36 is agreed to, I cannot call Amendment No. 37.
The Earl of Selkirk The Earl of Selkirk moved Amendment No. 36:
Page 9, leave out line 5 and insert—
("(a)" before the dealing becomes a binding obligation on the titled spouse the non-titled spouse either"").
The noble Earl said: I beg to move Amendment No. 36. The noble Lord, Lord Ross of Marnock, drew my attention to this matter in Clause 6 which is the

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normal procedure for selling a house which may be a matrimonial home. It seems to me that there are two sides to this matter. First, a buyer wants to be sure of the title he is getting. Secondly, we want to be fair to the wife or husband of the matrimonial home. It seems to me that both undertakings should be settled before the sale takes place.
Moreover, we should be quite clear that the rights of the wife are clearly stated in the documents. I do not think that there should be any doubt about that. With all respect to the great abomination which the noble Lord, Lord Ross, has for violent husbands—and I sympathise with him—we must remember that there are a great many normal sales which take place which have nothing to do with that and which must not be impeded. The sale of houses takes place constantly and it should be done as cheaply as possible.
I have rewritten this clause. It is a little complicated because I should like to deal at the same time with Amendments Nos. 38 and 39. The Bill would then read as follows:
"This section shall not apply in any case where—
(a) before the dealing becomes a binding obligation on the titled spouse the non-titled spouse either—

(i) consents or has consented to the dealing in an attested writing in such form as the Secretary of State shall by order made by statutory instrument prescribe; or

(ii) renounces or has renounced his or her occupancy rights, either generally or in relation to the matrimonial home to which the dealing relates in terms of section 1(5) of this Act."

That, as the noble Lord will recall, was the one which we discussed previously. I suggest that that is the normal way which should be adopted so that both parties are satisfied—those who acquire the house, on the one hand, and, on the other hand, those who sell, including, of course, the non-titled wife. I beg to move Amendment No. 36.
The Earl of Mansfield: So far as timing is concerned, it seems desirable that there should be as much flexibility as possible in relation to the timing of any consent. If through some oversight consent has not been obtained it is, I believe, sensible that the oversight may be simply and immediately rectified so that the dealing may not be prejudiced.
I am much more attracted by the other two amendments to which the noble Earl has spoken. I have no doubt that a prescribed form of consent would be helpful both to the legal profession and to the Keeper of the Registers of Scotland since an attested prescribed form of consent will be easily recognisable as such and if its authenticity is challenged the onus of showing the consent to be false rests on the challengers. On the other hand, there may be the danger that any prescribed form may not cater for unusual cases, and the Government would like to give further consideration to the aspect of prescription of the form of consent. So, with the assurance that we shall be considering this amendment, I hope that my noble friend will withdraw it.
The Earl of Selkirk: I am happy to do that and I am grateful to my noble friend for what he has said. I am not quite clear over what he said about timing.
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There is a considerable advantage in knowing exactly where you stand when you make a considerable expenditure, as you would with a house. I should have thought that it would be very much better for everyone if this was, if possible, before the contract took place. I am not quite sure why my noble friend objects to that.
Amendment, by leave, withdrawn.
[Amendments Nos. 37, 38 and 39 not moved.]
The Earl of Selkirk The Earl of Selkirk moved Amendment No. 40:
For galley 52—
Page 9, line 9, at end insert—
("( ) the person having title, either as proprietor or tenant, to the house to which the dealing relates has stated in an attested writing in such form as the Secretary of State shall by order made by statutory instrument prescribe before the dealing becomes a binding obligation on the said person that the dealing is not in respect of a matrimonial home.")
The noble Earl said: This is a rather important amendment, because although it is desirable to know what matrimonial rights there are, it is also desirable to know what there are not. This is supposing the position when a house is sold which is not a matrimonial home. It is, of course, important to the purchaser to know where he stands here. There is no notice of what is a matrimonial home and, equally, there is no notice of what is not a matrimonial home. Therefore, I would ask your Lordships to accept that this is a security—not least for granting a mortgage—so that people know where they stand. If it is impossible to have this, it will make it that much more difficult for people in Scotland to obtain mortgages and securities on their properties. For that reason, so that those who wish to do so may benefit, this amendment should be included. I beg to move.
The Earl of Mansfield: This amendment would provide protection to a purchaser of a home in which an occupancy right remained if the seller had made an attested statement that the property was not a matrimonial home. Normally this would arise where he or she was unmarried or divorced. The effect would be to defeat the occupancy right if there was a spouse and the statement was false. The spouse would in these circumstances have to raise an action for damages against the seller, probably her husband.
This amendment would run completely counter to the philosophy underlying the Bill, in that the primary objective should be the protection of the non-titled spouse's occupancy rights. These rights could be defeated by a false statement and the Government cannot therefore accept the amendment. It seems preferable in any event that any declaration should relate to the titled person's marital status rather than to the nature of his home, which could conceivably be subject to the occupancy rights of a spouse of a previous owner or tenant, of which the present person with title is unaware. I regret that I have taken the view which the noble Lord, Lord Ross, might describe as "draconic". Nevertheless, it is the Government's view.
The Earl of Selkirk: To be frank, I do not quite understand what my noble friend is saying. It is

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perfectly clear that the matrimonial right is an overriding right. This would not in any way stop a matrimonial right superseding a statement of this sort. This is merely something that acts at the moment of purchase. All it says here is that it is not a matrimonial home. The person cannot possibly undertake that it will never become a matrimonial home; it may even be obvious that it should be one. I hope that my noble friend will look at this a little more closely, because I do not think that he has quite understood the situation. I do not want to press this amendment now, but it is important that I should like him to look at it a little more. If he will do that, I shall be very glad to withdraw it.
The Earl of Mansfield: I shall certainly look at what my noble friend has said in the Official Report and reconsider it.
The Earl of Selkirk: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees: I should explain that, if Amendment No. 41 is accepted, I cannot call Amendment No. 42.
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 41:
Page 9, line 18, leave out subsection (4) and insert—
(" (4) The Land Registration (Scotland) Act 1979 shall be amended as follows—
(a) in section 6(4)—

(i) after the words "the interest of" there shall be inserted "(i)"; and

(ii) after the words "is not a long lease" there shall be inserted—

"and
(ii) a non-titled spouse within the meaning of section 6 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981.";
(b) in paragraph (6) of section 9(4)—

(i) after the words "the interest of" there shall be inserted "(i)"; and

(ii) after the words "is not a long lease" there shall be inserted—

"and
(ii) a non-titled spouse within the meaning of section 6 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981."; and
(c) in section 28 in the definition of overriding interest after paragraph (g) there shall be inserted the following—
"(gg) the non-titled spouse within the meaning of section 6 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981;".").
The noble Earl said: This amendment removes from the Keeper of the Registers the obligation in terms of the Land Registration (Scotland) Act 1979 to note an occupancy right as an overriding interest on the title sheet or to rectify any inaccuracy in such a note. It places an overriding interest in exactly the same position as a short lease in these respects.
Among the reasons for departing from the Scottish Law Commission's original proposals for matrimonial home notices as registrable indications of an occupancy right, was the Government's conviction that the scheme was unduly complicated and afforded an unsatisfactory degree of protection to a non-titled spouse if she did not register such a notice. A further consideration was that substantial additional manpower
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would be needed in the Department of the Registrars to handle the new notices. As a result, the cost of registration would have to increase. This is similarly a factor with short leases. The proposals that the occupancy right should be regarded as an overriding interest was among other possible approaches on this point on which the Scottish Law Commission was informally consulted last autumn, after the publication of its report.
Clause 6, as drafted, however, still allows for the noting of an occupancy right as an overriding interest. This could lead to the kind of increase in manpower which was considered to be a weakness of the Scottish Law Commission's proposals. Moreover, solicitors and prospective purchasers will assume that there is an occupancy right and will make their own inquiries to establish the true position in relation to the present proprietor. Noting the occupancy right is not therefore thought to be necessary. In fact, it may be absent for any one of three reasons: first, the non-titled spouse has consented to a dealing by the titled spouse; secondly, the non-titled spouse has renounced his or her occupancy rights under Clause 1(5); or, thirdly, the owner of the property is divorced or unmarried. It would however be unreasonable to expect a purchaser or lender therefore to make inquiries about a previous proprietor.
It is intended that the Land Registration (Scotland) Rules 1980 will be amended so that the Keeper will be required to disclose the absence of an occupancy right by virtue of any of the three reasons that I have set out. In this way useful information will be available on the title sheet for prospective purchasers without diminishing the occupancy rights of a non-titled spouse or requiring anything like the same kind of manpower implications for the Keeper. I beg to move.
The Earl of Selkirk: I should like to ask only one question. In the last line is my noble friend registering the "non-titled spouse"? Would it not be wiser to register the "rights conferred on a non-titled spouse"?
The Earl of Mansfield: I will examine that.
On Question, amendment agreed to.
[Amendment No. 42 not moved.]
The Earl of Selkirk The Earl of Selkirk moved Amendment No. 43:
Page 9, line 23, at end insert—
("(5) Section 6(1) of the Land Registration (Scotland) Act 1979 shall be amended by inserting after paragraph (f) the following:
(ff) a consent to any dealing or a renunciation of occupancy rights in relation to a matrimonial home in terms of the Matrimonial Homes (Family Protection) (Scotland) Act 1981.").
The noble Earl said: I should simply like to beg to move this amendment.
The Earl of Mansfield: As a result of my last amendment to Clause 6(4), this amendment would not be appropriate. It is intended that the existence of an occupancy right, or a consent or renunciation to defeat such a right, will not be registrable. The existence of a consent or renunciation may be noted on the title sheet as a result of a new rule amending the Land

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Registration (Scotland) Rules, which will be made after the Bill comes into operation.
The Earl of Selkirk: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6, as amended, agreed to.
Clause 7 agreed to.
Clause 8 [Provisions where both spouses have title.]:
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 44:
Page 10, line 35, leave out ("The definitions of "dealing" and "matrimonial home"") and insert ("The definition of "dealing"'').
On Question, amendment agreed to.
Clause 8, as amended, agreed to.
Clauses 9 to 11 agreed to.
Clause 12 [Transfer of tenancy.]:
6.20 p.m.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 45:
Page 13, line 25, leave out ("without intimation to the landlord").
The noble Lord said: The amendment suggested is to subsection (5) in line 25, where the court makes an order granting an application for the transfer of the tenancy to somebody else. I see the words: "without intimation to the landlord". I question whether this is fair. When the hearing takes place the landlord would be there and have a chance of being heard, but when the decision is made nobody is going to tell him about it. Why this "without intimation to the landlord"? Is it right? Could not we do without these words altogether? I beg to move.
The Earl of Mansfield: I anticipate that my noble friend Lord Selkirk is going to move his next amendment, which is Amendment No. 46. This seeks to ensure that the landlord is notified of any court order which transfers the tenancy. The Government accept that it is appropriate that the landlord should be notified of any change of tenant. I am not entirely happy with my noble friend's drafting. If and when he does move the amendment I shall suggest that I take it away and consider the matter. I hope that that will persuade the noble Lord, Lord Ross, to withdraw his amendment too.
Lord Ross of Marnock: I shall gladly withdraw my amendment in the knowledge that the Government have realised that they have sinned, and that they are going to do penance in some other way. The penance is that the poor old draftsmen in the office will sit down for hours and decide what to put in its place. I could give them a few ideas, but they are there to do the work and we are just here to make them do the work and see that it is right. I shall not press this amendment, and I am glad to withdraw it.
Amendment, by leave, withdrawn.
The Earl of Selkirk The Earl of Selkirk moved Amendment No. 46:
Page 13, line 28, at end insert—
("( ) An order made by the court in terms of subsection (5) above shall be served on the landlord within 48 hours of the making of the order.").
The noble Earl said: I am grateful for what my noble friend has said. I am quite happy for this amendment to be redrafted. The point is that the application is made to the landlord but when the court comes to a decision he is not informed. Obviously he should be informed, and it is right and proper that he should be. I hope that the noble Earl will agree. I beg to move.
The Earl of Mansfield: Where my noble friend's amendment is defective is that it does not say who is going to serve the notice, and neither does the clause as it stands. That is what we have to think about.
The Earl of Selkirk: I beg to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Ross of Marnock Lord Ross of Marnock had given notice of his intention to move Amendment No. 47:
Page 13, line 29, leave out subsection (6).
The noble Lord said: We have had the main argument about the tied cottage, et cetera, before. I am not going to repeat it. Not moved.
[Amendment No. 47 not moved.]
[Amendment No. 48 not moved.]
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 49:
Page 15, line 1, leave out subsection (10).
The noble Lord said: This amendment I must move. This refers to the Tenants' Rights, Etc. (Scotland) Act, Schedule 1 paragraph 6. Under this the landlord—here being mainly the local authority—who wishes to transfer the secure tenancy of the dwelling-house to the spouse, or former spouse, of the tenant or person defined, and so on, has the grounds for repossession to enable this to be done. At the moment it is relatively easy for a wife who is having the kind of trouble we have been discussing today to be able to go to the local authority and to have the tenancy transferred to her. Now we are taking that away and relying entirely on Clause 12. I wonder about the wisdom of this. Transfer of tenancy to be done by the court on application by the non-titled spouse is going to mean expense, if not for those concerned then certainly in regard to legal aid, whereas the question of dealing with it through a local authority direct is very simple; there is no question of expense involved at all. Not only that, but being nearer to the ground, much nearer to the events, it tends to take place much more speedily and satisfactorily than, say, at the sheriff court.
I would suggest that the Government forget about subsection (10). It does not naturally follow. It would then he open to the non-titled spouse either to do it through the courts or, in the case of a local authority, to do it direct with the local authority housing department. Nothing would be lost. In fact, the people who would gain would be the Scottish non-titled spouses. This court avenue would not be open

1109
to tenants similarly placed in England and Wales, but there is no reason why we should not advance the protections for the non-titled spouses in Scotland in this particular way. I think it would be wise to delete subsection (10), and it certainly would not be to the disadvantage of Scottish tenants. I beg to move.
The Earl of Mansfield: The Tenants' Rights, Etc. (Scotland) Act, 1980, which conferred security of tenure on public sector tenants, would have prevented such administrative transfers as the noble Lord has spoken about, but interim provisions were included permitting administrative transfer to continue until the Scottish Law Commission's report, and the recommendations which it contained for transfer by the courts, were implemented. I should emphasise that it was always intended that the Tenants' Rights, Etc. (Scotland) Act 1980 should merely deal in this field on an interim basis.
The Government consider that the transfer of tenancies by the courts is more satisfactory than administrative transfer by local authorities since the courts are in a position to hear all the people involved. The question of accommodation is often before the courts in divorce and other matrimonial proceedings. It is convenient and easy for the courts to be able to deal with this aspect. If this amendment were accepted there would then be two separate methods of transferring tenancies, one of which was never intended to be permanent. I suggest that that would be confusing and illogical. The intention, as I have stated, is that once this Bill is enacted the provisions of subsection (10) will supersede the temporary provisions in the Tenants' Rights, Etc. (Scotland) Act 1980.
Lord Ross of Marnock: I cannot understand why the Minister says that it was never intended to be permanent. Scottish local authorities have had the power to transfer tenancies since there were local authority houses. Who is going to stop them? Who tried to stop them? Nobody. They can still do it, and they will continue to do it. What I am suggesting is that in respect of this there is no justification for saying take away this power from these particular people under the schedule which I have before me.
I admit that there would then be two courses of action open to the aggrieved tenant who wanted a change of tenancy. Remember, the clause does not deal only with the violent husband; it is a court order which could be applied in matters other than that, and I believe it would be wrong to suggest that where there are difficulties concerning local authority housing the aggrieved tenant should have to go to the courts.
The Minister says the courts can hear all the evidence, but do we need to worry the courts with this sort of thing when local authorities are doing it practically every week? If the Minister thinks there is a lack of opportunity for people to be heard by housing committees, he is wrong. It is a simple and easy process, and while it may not satisfy everybody—in which case anybody could use the provision in the Bill—please do not deny people the opportunity of using the easier local authority method by insisting on sticking to this provision.
I hope the noble Earl will look at the matter afresh and will talk to his officials about it. I cannot see
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that any harm would arise from getting rid of this provision and giving tenants in Scotland a choice—either the courts or through the local authority administration. Is the Minister prepared to reconsider the matter?
The Earl of Mansfield: Frankly, no. I have explained that the Tenants' Rights Act, which was enacted in contemplation of the Scottish Law Commission's report and recommendations, contained temporary provisions which were good enough while they lasted. Now we have an excellent system of transferring tenancies under Clause 12 of this measure and it is, I suggest, for the courts to regulate the rights as between spouses. That is why we have courts.
It would be easy for me to say, "Yes, I will look at it again", but what would be the point? We are creating a satisfactory method of transfer of tenancy in a proper case by courts of law which have all the facilities and experience to go into the rights and wrongs of the conduct of the spouses, and so on. I do not see it would be of the slightest use for me to say I will look at it again because, with respect, the noble Lord has not adduced one cogent reason why he wants local authorities to be allowed to maintain a parallel, separate and, as I have said, illogical system.
Lord Ross of Marnock: Local authorities are landowners. They own the houses. It is to them that tenants pay rents and it is they, not the courts, who decided who the tenants should be in the first place. I assure the noble Earl that for generations they have been able to change the tenancies. Indeed, recently they have been making them joint tenancies in Scotland without reference to the courts or anybody else. I really do not understand the Minister's attitude on this.
The Earl of Mansfield: I assume the noble Lord is being genuine and is not just making debating points. In Clause 12, for instance, the court is enjoined to have regard to all the matters specified in Clause 3(3)(a) to (d) of the Bill. Is the noble Lord really suggesting that it is within the competence of a housing committee, however honest, experienced and able it is, to carry out its functions as a democratically-elected local authority, to go into this sort of matter which I suggest, particularly when it comes to matrimonial matters, is so much better done by a court in privacy?
Lord Ross of Marnock: It is being done now and they have been doing it for long enough. The answer to the noble Earl's question is, Yes; that is what they are there for. The people elected them and they have been carrying out these responsibilities for long enough. I am surprised that the Minister refuses to see the point. There are two ways of dealing with this issue, one simple and costing little or nothing. But, no, if it must be done then it shall be done in a costly way. The noble Earl speaks like a lawyer. He should have declared an interest. I am approaching this as a simple, humble peasant who has not been in the law courts in his life. I know something about local authorities, however, and how the people of Scotland react.
The power I am speaking of has been used by local authorities and is being used now, and I suggest the

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Minister speaks not to his legal advisers at the Scottish Office but to his housing officers, and they will tell him that this provision is unnecessary and, in my view, undesirable. If, as he believes, it is so efficacious to go to the courts, people will not be prevented from going to the courts; the choice will be theirs. If the Minister takes my advice, as I hope he will, he will get rid of subsection (10), and then I know where local authority tenants will go. They will do it through the administrative practices of the local authority.
On Question, amendment negatived.
Clause 12 agreed to.
6.37 p.m.
Clause 13 [Interdict competent where spouses live together]:
The Earl of Selkirkhad given notice of his intention to move Amendment No. 50:
Page 15, line 17, leave out from ("home") to end of line 18.
The noble Earl said: I am raising here the whole question whether arrest should automatically follow a matrimonial interdict. In the many and varied circumstances which arise, I suggest that the Bill takes too dictatorial a line. This is not a question of a wife being hit but of whether one is in breach of an interdict. If one is, then one can be arrested without warrant—
The Earl of Mansfield: I am sorry to interrupt my noble friend, but I think Amendment No. 50, to which he is speaking, was consequential on No. 26, which he has already withdrawn.
The Earl of Selkirk: I apologise to the Committee. I do not move Amendment No. 50.
Clause 13 agreed to.
Clause 14 [Attachment of powers of arrest to matrimonial interdicts.]:
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 51:
Page 15, line 19, after ("shall") insert (", on the application of the applicant spouse,").
The noble Earl said The noble Earl said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
The Earl of Selkirk The Earl of Selkirk moved Amendment No. 52:
Page 15, line 19, leave out ("arrest") and insert ("detention in terms of section 2 of the Criminal Justice (Scotland) Act 1890").
The noble Earl said: I wonder whether the exclusive or almost obligatory use of arrest on interdict dealing with matrimonial matters is necessary; whether it is not too dictatorial and whether, being so dictatorial, it will not arouse antagonism. This is not a policy of being soft to people but a question of how best the provision can be enforced. This is putting a man who breaches an interdict in line with a common criminal, but the difference in this case is that there is no bail. What is required in many of these cases is a cooling-off period, and I believe that that could be done very well by detention.
When the Scottish Law Commission reported detention had not been invented. Indeed, strictly speaking it has not been invented yet, but I am told it will come into operation this summer. I believe detention should be given either as an alternative to arrest or preferably in place of it. In this case it would mean that a man would be detained, he would go to the police station for perhaps six hours of course, he could be arrested if he showed every inclination of doing some action which was clearly wrong—and at the end of that time it would be normal to release him if he promised to behave himself and appear before the sheriff on the next occasion. If the man is arrested, he will he kept locked up in the police station until the sheriff court meets, and then a procedure which is peculiar to the Bill will be adopted. I should have thought that it would be much easier to take the course laid down in the Criminal Justice (Scotland) Act, which provides for the man to be detained, and those who carry out the investigation can decide what should be done.
I fear that if the proposal as stated here is carried out, the impression will be given that it is unjust, and so the whole matter will be brought into disrepute. The approach should be more moderate in the first place; further powers can be used later, if necessary. I should be glad if the Minister will consider the matter. If he says that he will do so, I shall not move a number of other amendments which are connected with this proposal. I beg to move.
The Earl of Mansfield: I tell my noble friend at once that the Government are to reconsider the entire clause, because, as the Committee will appreciate, it poses a number of quite severe problems. It was inherent in the proposals of the Scottish Law Commission that a power of arrest should be attached to a matrimonial interdict, unless the non-applicant spouse could satisfy the court that that was unnecessary; and to that the Bill gives effect. My noble friend in his amendment seeks to remove the power of arrest attached to a matrimonial interdict, which could be exercised by the police in circumstances where a breach of interdict appears to have been committed. Under the amendment of my noble friend reliance would have to be placed on the police powers to detain in the context that a criminal offence has been committed, since that is the purpose of Section 2 of the Criminal Justice (Scotland) Act.
I think it wholly inappropriate that one should seek to draw into an arena of the civil law—which is particularly delicate as it affects the relationships between spouses—a provision of the criminal law that is designed specifically for purposes of detention and interrogation. As my noble friend might recall, that provision is hedged about with a number of safeguards, most of which were inserted in the Act by your Lordships' House because it realised that new, and what could be considered sweeping, powers were being taken by the police. I do not believe that it is appropriate to try to make use of those powers in order to help an angry, and probably male, spouse to "cool off"—to quote the term used by my noble friend.
We must have some power of detention—I use the phrase in a relatively neutral sense—because otherwise there would be no deterrent effect on the court's

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interdict. One must bear in mind that these matrimonial affairs blow up very quickly, and it is absolutely essential to give the courts, the police, or at any rate society, the power to deal with them as quickly as they blow up. That is one of the main points of the Bill.
I think that both my noble friend and I are uneasy about the period following the spouse's arrest, in which he is in custody. Under the present arrangements for the sitting of sheriff courts in Scotland, if, in the circumstances with which we are concerned, a person flushed with the intoxicating results of his pay packet, is arrested on a Friday, he will not appear before a sheriff on the Saturday or the Sunday, and if the Monday happens to be a Bank Holiday he will not appear on that day, either. So his first appearance before the sheriff will be a Tuesday. All of us are somewhat concerned about that period of time. If under the Bill the fiscal decides to take criminal proceedings against the husband, then in all probability the husband will be granted bail at the fiscal's discretion. But if the fiscal does not decide to take criminal proceedings, then in the circumstances that I have outlined the husband will not get bail. It is as obvious to the Government as it is to my noble friend that that is a matter which must be looked at, and we intend to do just that. We are to give further consideration to these points, and I very much hope that some form of sanction which will be effective, yet just, will emerge.
Lord Ross of Marnock: I am more than slightly worried because we are dealing with Clause 14 (relating to the power of arrest) whereas everything that has been said by the Minister of State seemed to apply to what will happen after the arrest, which is dealt with in Clause 15, which we have not yet reached. Is the Minister saying that he is to look at Clause 14 and Clause 15, or is he satisfied with Clause 14, and does his concern lie with what follows after arrest?—a matter which is not before us at the moment. All that is at present before us is Clause 14—indeed only the first line of the clause. I should like to know the position.
The Earl of Mansfield: My noble friend said that if I were able to satisfy him on the amendment that he moved—Amendment No. 52—he might not move a number of other amendments. I am very much hoping that he will not move Amendments Nos. 54, 56, 58 and—dare I suggest?—63 and 65, which would certainly lighten our labour. I perfectly appreciate that I have, as it were, discussed the effects on the citizen following his arrest, but I am sure my noble friend will agree that the series of amendments commencing with Amendment No. 52 flow on into the next clause of the Bill.
The Earl of Selkirk: I am grateful to the noble Earl. What he has said is perfectly correct. I had anticipated a series of events. It is not simply the question of the arrest, but also what happens afterwards with which I am concerned. I believe that in many cases such action is not necessary. We should never take too powerful a weapon in order to crush what is a small matter. I am very happy to hear that the noble Earl has this point in mind. The difficulty here is that the
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police cannot give bail. The man may take only one step inside the area that he is forbidden to enter, and then he finds that he is in prison for three days. That is the kind of thing that embitters people, and I feel that we must be very careful about it. I suggested a slightly more simple process, but I shall not press the matter this evening. I am grateful to the noble Earl for stating that he is willing to look at the point, and I hope that wisdom will go with his counsel. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.48 p.m.
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 53:
Page 15, line 27, at end insert—
("(1A) A power of arrest attached to an interdict by virtue of subsection (1) above shall not have effect until such interdict is served on the non-applicant spouse, and such a power of arrest shall, unless previously recalled, cease to have effect upon the termination of the marriage.")
The noble Earl said: This amendment clarifies the timing of the effectiveness of the power of arrest and the fact that it ceases with the termination of the marriage, usually by divorce. It is thought desirable that the power of arrest should not become effective until the non-applicant spouse has been served with the interdict containing the power of arrest. That avoids the situation where the court considers the interdict in the absence of an allegedly violent husband and he finds himself liable to arrest for breach of interdict, of which he was unaware, when he returns to the matrimonial home. In most cases, he will know of the date of the court hearing, but sometimes—for example, where he has been out of the country—such a circumstance as I have mentioned could nevertheless arise.
The power of arrest, together with the interdict itself, ceases to have effect following divorce because it no longer relates to a matrimonial interdict. If the behaviour of the ex-husband towards his former wife, or their children, continues to cause her apprehension, she will have to seek a fresh, and non-matrimonial, interdict from the court, to which no power of arrest may be attached. Since they will no longer be related by marriage it is not considered necessary for the exceptional powers provided for in relation to matrimonial interdicts to continue to apply. The normal rules applying to interdicts between strangers would therefore apply. I beg to move.
On Question, amendment agreed to.
[Amendment No. 54 not moved.]
6.50 p.m.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 55:
Page 15, line 29, leave out ("may") and insert ("shall").
The noble Lord said: Here we are at the nub of the arrest and the draconian powers to which the noble Earl objects. There was a long argument within the report about the power of arrest and this question of the virtual merging of the civil law and the criminal law. On Second Reading I agreed (as did most people) with the Scottish Law Commission that we want to keep this out of the criminal courts as far as we can. But such was the gravity of the offences that had

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occurred in respect of the interdict on violent parents that it was felt in Scotland that we should take the power of arrest. That power of arrest is already there in England and Wales; it is not so in Scotland.
The mandatory element was there in relation to the power of arrest: the right to arrest, the power, shall be attached. Then when we read on we discover that the carrying through of it is left to the police. There is nothing mandatory there. In line 29 it says:
"… a constable may arrest without warrant if he has reasonable cause for suspecting that spouse of being in breach of the interdict".
This is one of the troubles. As I understand it from my reading of the Commission's report and the evidence, in England and Wales (where they have this power and have discretion for the police) the police are most reluctant to intervene and arrest. But the person who suffers therefrom is the wife who is the subject of this violence; and the protection is removed.
I know that the noble Earl has been very sympathetic towards the loss of freedom for the individual. But I hope that he appreciates the counterbalance: that the individual loses his freedom initially because of the danger of injury, of violence affecting health and mental wellbeing, to a woman and probably a family. In view of the experience in England and Wales of the reluctance of the police to use their power, the Government should go the whole way and, instead of "may arrest", they should say "shall arrest". I think that probably it would be more suitable to the police. They would rather have an order to do something than a discretion—especially in cases of this kind, where it is not easy and where they would use that discretion not to intervene. And if they do intervene too late, then serious damage may be done.
I would suggest that having taken the mandatory power to attach a power of arrest then, where a police constable has reasonable cause for suspecting that a spouse is in breach of the interdict, he "shall" arrest, not "may" arrest. "May" is a very unsatisfactory word in this context. I suggest that "shall" would be far better and more reasonable from the point of view of the protection that we would suppose it to afford. I beg to move.
The Earl of Mansfield: The usual statutory language empowering constables to arrest without warrant is "may". Recent examples are in Sections 18 and 294 of the Criminal Procedure (Scotland) Act 1975 and Section 1(6) of the Criminal Justice (Scotland) Act 1980. In all instances, it says:
"A constable may arrest without warrant any person …"
and:
"A constable may take into custody without warrant …".
I think the innuendo behind the noble Lord's remarks is that in some way a police officer, if given any discretion at all, will seek not to do his duty because (let us face it) matrimonial offences tend to be unpleasant and messy and police officers, who have the same feelings and susceptibilities as the rest of us, no doubt do not wish to get involved unless it is their plain duty so to do. I do not think that that is a sufficient reason for putting into this Bill no discretion at all. One can readily imagine situations where if a constable has no
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discretion it could cause hardship and injustice. Supposing there was an unintentional and trivial breach of an interdict, somebody who returns to the matrimonial home to collect urgently-needed belongings, not wishing to make a scene, not wishing in any way to impose upon his spouse and, as it were, is caught.
He may go to the matrimonial home when the non-applicant spouse is absent. He may try to do everything that he can not to exacerbate a situation which the court has taken cognisance of. Is the noble Lord suggesting that in that trivial case a constable is to have no discretion at all? That is what acceptance of this amendment would mean. Taking the Bill as it is at the moment, it could mean—because the fiscal would certainly not take criminal proceedings—that for a breach of interdict which could cause minimal harm and may possibly be even unintentional, a man might spend four days in jail without bail. I suggest to the Committee that in this particular instance it is proper and sensible to give police constables the usual and very limited discretion that they have whether to arrest somebody or not.
Lord Ross of Marnock: I almost had tears in my eyes when I heard about this trivial case. How did the noble Earl know it was trivial? How did he know the intent or purpose of the person going to the matrimonial home? Surely that is for the court to judge. I admit that "may" is an advance on the present position. But we must draw from the experience of others. And the experience of others in respect of this kind of case in England is a decided reluctance on the part of the police to use their power. They have the discretionary power implied in "may"; and they can arrest upon that.
This was discussed by the Law Commission when they drew up their report. It was with a certain measure of reluctance, but also with firmness that they said that they required this power of arrest. To my mind, if that is so, then whether we like it or not, we have to appreciate all that is involved and not start to withdraw the protections that we have, after reluctance, built up. The word "may" should really be changed to "shall". In Parliament I have argued long and often whether "may" and "shall" have the same meaning. Learned Solicitors General and Lord Advocates 30 years ago were telling us that it did not make any difference. I am still convinced that "shall" is a much more effective word than "may", and that we should make this change. I am sorry that the Government are not going to change it. For the moment, I shall rest my case on that.
The Earl of Mansfield: I know the noble Lord would not want to mislead the Committee. Paragraph 4, subparagraph 35, of the Scottish Law Commission report said in effect not that the police were reluctant to arrest but that the courts in England were reluctant to attach a power of arrest in any particular instance. That is a very different matter. If the noble Lord is going to consider his position between now and the next stage I am sure he will want to bear that in mind.
Lord Ross of Marnock: I shall bear all these things in mind. I shall read and re-read again the Law

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Commission's report. It has been my bedside reading for the past three weeks.
Amendment, by leave, withdrawn.
[Amendment Nos. 56 to 58 not moved.]
7.2 p.m.
The Earl of Mansfield The Earl of Mansfield moved Amendments Nos. 59 and 60:
Page 15, line 33, leave out ("the solicitor acting for")
Page 15, line 34, leave out (", messenger-at-arms or sheriff officer").
The noble Earl said: Amendments Nos. 59, 60 and 61 are intended to clarify the manner in which the police are to be notified of the existence of a power of arrest. It places the responsibility for doing so on the applicant spouse; the responsibility for the service of interdicts also normally rests with the applicant. The original Scottish Law Commission recommendation was for the messenger-at-arms or sheriff officer serving the interdict to deliver to the relevant chief constable the documents notifying the attachment of a power of arrest. This was on the basis that the same officer would be involved so that speed of notification and care that the interdict had already been served would be secured.
In practice, the same officer need not do both the service of the interdict and the notification of the power of arrest to the chief constable. It was therefore considered that the actions of a single solicitor might be equally effective. However, the present wording, which refers to a solicitor acting for the applicant spouse, messenger-at-arms and sheriff officer, may itself be confusing because it is not clear which of them has the primary responsibility.
Since it is usual for the applicant's solicitor to serve an interdict, it was thought desirable to delete the reference to the court officers. It is in any event open to the solicitor to employ them for the service of the interdict and police notification in this context. By the same token, since service must be done by a solicitor or a court officer, the reference to the applicant's solicitor was also considered to be superfluous. In practice, the applicant spouse will be reminded by his or her solicitor of the obligation to notify the chief constable of the power of arrest. The result of the amendments is considered entirely compatible with the thinking of the Scottish Law Commission in that the applicant spouse (through her solicitor) can ensure prompt notification to the chief constable and the non-applicant spouse can be sure that the sequence of events is such that the chief constable will only be informed after the power of arrest becomes effective. I beg to move
On Question, amendments agreed to.
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 61:
Page 15, line 36, leave out ("deliver") and insert ("ensure that there is delivered").
The noble Earl said: I have spoken to this amendment. I beg to move.
Lord Fraser of Tullybelton: I should like to welcome this amendment in principle. I suggest that the drafting is not entirely satisfactory. It provides that
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the applicant shall ensure that there is delivered to the chief constable the order. There is no sanction provided. An order on someone to ensure that something happens without any sanction is unsatisfactory and is apt to be disregarded. It would be much better, I suggest, if the wording were copied from Amendment No. 53 (which the Committee have agreed to) which provided that an interdict shall not have effect until it is served on the non-applicant spouse. The same provision could be copied here so that it shall not have effect until it has been intimated to the chief constable. In some way a sanction of that sort could be provided. I suggest that might be considered.
The Earl of Mansfield: I am obliged to the noble and learned Lord. I shall consider the matter before the next stage.
On Question, amendment agreed to.
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 62:
Page 16, line 4, leave out subsection (4) and insert—
(" (4) Where any matrimonial interdict to which, by virtue of subsection (1) above, there is attached a power of arrest is varied or recalled, the spouse who applied for the variation or recall shall ensure that there is delivered—

(a) to the chief constable of the police area in which the matrimonial home is situated; and

(b) if the applicant spouse (within the meaning of subsection (5) below) resides in another police area, to the chief constable of that other police area,

a copy of the application for variation or recall and of the interlocutor granting the variation or recall.").
The noble Earl said: This amendment replaces subsection (4) with a fuller statement of the action which has to be taken by the spouse who applied for the variation or recall of the interdict. It removes the possibility that the subsection could be interpreted as requiring a husband (as the usual non-applicant spouse) having to serve a recall on himself. The amendment distinguishes the fact that a different spouse is likely to be the applicant in subsections (3) and (4). I beg to move.
Lord Fraser of Tullybelton: Exactly the same point about ensuring arises here. It is not so easy to provide the sanction here but it ought to be possible in some way.
On Question, amendment agreed to.
Clause 14, as amended, agreed to.
Clause 15 [Procedure following arrest]:
[Amendment No. 63 not moved.]
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 64:
Page 16, line 35, leave out ("(1)") and insert ("(2)").
The noble Earl said: This amendment corrects an erroneous reference to subsection (1) when in fact the procurator fiscal brings the arrested spouse before the sheriff under subsection (2). I beg to move.
On Question, amendment agreed to.
[Amendment No. 65 not moved.]
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 66:
Page 17, line 14, leave out ("and").
The noble Earl said: This is a purely drafting amendment. I beg to move.
On Question, amendment agreed to.
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 67:
Page 17, line 20, at end insert ("or any child of the family").
The noble Earl said: This amendment provides that the sheriff in reaching a decision can take account of the risk of violence against a child as grounds for further detention as well as against the applicant spouse. This secures a consistent approach since Clause 4(2) provides that exclusion orders may be granted for the protection of the applicant (spouse) or any child of the family. A matrimonial interdict to which a power of arrest may be attached may prohibit any conduct towards a spouse or any child of the family. I beg to move.
On Question, amendment agreed to.
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 68:
Page 17, line 22, leave out ("but").
The noble Earl said: This is a drafting amendment. I beg to move.
On Question, amendment agreed to.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 69:
Page 17, line 23, at beginning insert ("where the non-applicant spouse has been in custody for forty-eight hours; or").
The noble Lord said: I move this amendment because I am concerned about the inequality of treatment depending on the day that a person is arrested. The Minister of State himself at an earlier stage drew attention to the seeming unfairness. Many of these cases will happen on a Friday night and they will not be dealt with, at the earliest, before Monday morning. I felt that there could be unfairness in this generalised ruling in respect of the further period not exceeding two days. Somebody may have been there for virtually four days.
I use the opportunity of this amendment to ask the noble Lord whether he is going to look at the whole procedure laid down in Clause 15. I got the impression earlier on that he was going to do that. He will remember the suggestion from the Law Commission was not that this should be inserted in this form but that it should be left to the rules of the court. I think that was in paragraphs 4.10 and 4.11 of their report. If we are going to write it down then we must be fair, and so I should like to know exactly what the noble Earl intends to do to ensure fairness of treatment as between those already in detention or those who have been arrested and detained for three or four days, as compared with the others. I beg to move.
The Earl of Mansfield: What I undertook to do very simply and briefly was really in relation to two matters. The first was in relation to whatever sanction is going to flow from a breach of an interdict, which at the moment is dealt with under Clause 14 and which my noble friend Lord Selkirk was concerned about, and in respect of which he had tabled a series of amendments. The other matter, which we discussed shortly, was what happens when someone has been taken into
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custody, how long they should be in custody before they appear in front of a court or how otherwise they should be dealt with. This is Clause 15, and I have undertaken to consider what is to happen to someone in these circumstances when he has been taken into custody on a breach of an interdict. That I will do, and I hope it will satisfy the noble Lord, Lord Ross.
Lord Ross of Marnock: Since we are going to have another look at this I will gladly beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 15, as amended, agreed to.
Clause 16 [Occupancy rights of cohabiting couples]:
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 70:
Page 17, line 36, leave out ("satisfied") and insert ("it appears").
The noble Earl said: I have in effect spoken to this. I beg to move.
On Question, amendment agreed to.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 71:
Page 17, line 37, after ("house") insert ("and they have been cohabiting for at least three years").
The noble Lord said: Amendments Nos. 71 and 72 deal virtually with the same point, I think. What I am concerned about is how you construe a person as having been cohabiting. I put in the provision that they had been cohabiting for at least three years. What I omitted to take note of is the fact that one of the proofs of fertile cohabitation is the presence of children, and of course that can take place long before three years. So I was attracted by the reference in the amendment of the noble Earl, Lord Selkirk, to the fact that if there were children then that should in itself be definitive, and I am prepared to bow to that when it comes to reconsideration. However, I am not so sure about other things. I feel, too, that in relation to the grant of occupancy by the court a period not exceeding three months is just not right. If we are going to construe these people as having a stable relationship and liken it to husband and wife, I think we have to leave it to the discretion of the courts to apply exactly the same rules to the (I do not know what the name would be) "non-applicant" or to the "non-titled cohabitee". We have not got this in yet, have we?
The Earl of Mansfield: "Non-titled partner".
Lord Ross of Marnock: We must think of one or two more. We must not have the thing too clear, you know. So I am concerned with two points: first, to be able to establish that there has been, by length of time, some stable arrangement; and, secondly, having established that, then the same rights as are given in subsection (1) of the clause to the non-titled wife should be given to the non-titled partner, and not just this question of three months. I think that would be most unfair. I beg to move.
The Earl of Selkirk: I think we are up against a problem of trying to define "cohabitation", and I do

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not feel terribly competent to say what exactly should be laid down. I fully agree with the noble Lord that if there is a child of the union obviously that applies, but I think really the test is the word "stable". But how do you define that word? One has to remember that it could be grossly and superbly misused. You take a girl and cohabit with her; then eventually you hit her in the face. She excludes you, and you leave her permanently in the house, indefinitely. Then you start off with another girl and do the same thing there. This raises possibilities for those who want to misuse the thing to a really quite startling extent.
I have suggested in my amendment that there should be a period of stable relationship of three months. That may not seem too long, but the test is the word "stable". I think there must be some definition here, otherwise the grossest misuse could be made of this sort of thing, which would not be right. I shall not do more than refer to my amendment here, in which I put down that cohabiting means "living together where there is a child." Secondly, as regards a stable relationship, what creates a stable relationship? I said, more modestly, three months. With respect, I think three years is too long because you can have two or three children in that period; and so I would have thought three to six months would be a pretty reasonable period initially. I will not say any more for the moment.
The Earl of Mansfield: I will deal first with Amendment No. 71, under which the noble Lord, Lord Ross, seeks, as it were, to ensure that couples are not to be said to have been cohabiting within the meaning of this Bill unless they have been doing so for at least three years. Therefore, to him, "cohabiting is defined by the length of the period they have been living together.
Lord Ross of Marnock: I was thinking of the question of occupancy, because that is what is at stake—occupancy of the house. We remember the noble Earl's own Act, which was to give secure tenancy. Within that secure tenancy is included purchasing a house, and I think three years was the time laid down by the Government in respect of a local authority house.
The Earl of Mansfield: Yes. It is somewhat obscure whether the noble Lord means in one house, in a number of houses, in a lodging-house, in a tent or whatever. For myself—and I am afraid this is the lawyer in me coming out again—I think the courts are supremely able to estimate whether the conduct of two people is such that they can be held to be cohabiting. I remember that when I used to draft divorce petitions I used to say "living as if man and wife", and that seems to me a perfectly reasonable way of deciding whether or not people are cohabiting—whether they are living together as man and wife.
Then one has to ask the question whether it is desirable that there should be some fetter on the court's discretion and should say that unless they have been living together as if man and wife for a certain period then the rights conferred by this Bill shall not arise. I personally believe that the noble Lord's period and his way of looking at this is much too narrow. For instance, if they had been living together for less than
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three years they could well have had twins. In every sense, other than the fact that they had not been living together for three years, they would be in a position where either one of them might well want to see the relief which this Bill will give. So I think that the noble Lord's idea is, at once, simplistic and could lead to unfairness.
I now come to the next amendment in which he wishes to leave out the phrase "not exceeding 3 months". In this instance, he believes that there is too much of a fetter on a court. I am sure he realises that, after the initial period of three months, applicants can go back to the court as many times as they like and can get as many periods as they can persuade a court to give them, each one of them not exceeding six months. So, in fact, this could become a permanency. I do not see that a court needs to be fettered in any way, although one has to acknowledge that in this type of case occupancy rights for people who are not married, and who yet have split up, are unlikely to be needed for more than a temporary period. That is why the clause is so drafted that the applicant can come back after the initial three months for periods not exceeding six months. So, certainly, I should be resistant to that amendment, too.
I now come to the amendments of my noble friend Lord Selkirk. He puts in a test not so much of time as of a child of the liaison. People could be living together for years and years and be either unable or unwilling to have children. In that instance, are they not to be said to be a cohabiting couple, and is one or other spouse not be be entitled to take advantage of the provisions of this Bill? That seems to me to be quite unfair.
Lastly, my noble friend says "All right, they must have had a stable relationship for not less than three months prior to the making of the application for the order." It is a funny kind of relationship which is going to be stable for three months, and yet end by such violence that one or other of them comes forward to seek the relief of the court in such a way. One would have supposed that, if things were coming to that pass, the relationship would have been very far from stable well before the three months prior to the making of the application for the order.
There are two elements. I say at once that I will take this away and reconsider it, because it is a difficult point, and I am grateful to both noble Lords for their amendments and for the different ways in which they think that the problem should be approached. First, there is a need to assist the court in deciding when a couple are cohabiting, I do not think one can lay it down too closely or too narrowly by statute, but it may well be that a court needs assistance to make up its mind.
Secondly, what occupancy rights does one give to cohabiting couples, if there is to be a more narrow definition of "cohabiting couples" than there is at the moment? It seems to me that, somehow, we shall have to try to steer a middle course between both of these difficulties, so I shall take this away and ponder over it between now and the next stage of the Bill. I think that my noble friend's Amendment No. 77 is not really in point to what this debate has been about, so I shall rest my argument there.
Lord Ross of Marnock: I do not propose to go any further with this amendment. I think the Minister appreciates the problem and the difficulties that the courts will be in, if we leave the matter entirely to them. They are the people who will be blamed or otherwise. But I appreciate the fact that the noble Earl will now be looking at practically the whole of this Bill in order to improve it. I certainly beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 72 not moved.]
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 73:
Page 18, line 5, after ("modifications") insert ("(a)").
The noble Earl said: Perhaps I may speak to Amendments Nos. 73 and 74. These amendments are intended to make it clear that the protection provided by the Bill to cohabiting couples should also extend to any children living with the couple, in the same way as it does to the children of a marriage. The amendment also provides that the subsidiary and consequential rights in Clause 2 shall, as appropriate, be available to one of the parties if he or she is exercising an occupancy right. The Clause 2 rights are necessary to make the occupancy right effective.
The draft Bill had not extended the rights of cohabiting couples in this way, because the Law Commission's recommendation was for a maximum duration of any occupancy rights of six months. In such a temporary situation, it was not thought that these further rights were needed. The present Bill permits greater flexibility in the form of a strictly indefinite number of further periods of six months. Since this will mean that the occupancy rights could remain for a matter of years rather than months, it is thought to be necessary for the partner occupying their house to have the consequential rights provided in Clause 2. Otherwise, his or her occupation would be unreasonably spartan; for example, if furniture on hire purchase was removed from the house because the other partner had defaulted on the payments. I beg to move.
On Question, amendment agreed to.
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 74:
Page 18, line 6, at end insert—
("and
(b) have effect in relation to any child of the cohabiting couple as they have effect in relation to a child of the family—
section 2").
The noble Earl said: I beg to move.
Lord Ross of Marnock: To the extent that this amendment comprehends and accepts Amendment No. 75, I welcome it.
On Question, amendment agreed to.
[Amendment No. 75 not moved.]
The Earl of Selkirk The Earl of Selkirk moved Amendment No. 76:
Page 18, line 26, at end insert—
(""cohabiting couple" means

(i) a man and a woman who are living together where there is a child of the liaison; or

(ii) a man and a woman who are living together in a stable relationship and have been so living for a
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period of not less than three months prior to the making of the application for the order.").

The noble Earl said: In moving this amendment, I should like to thank my noble friend for what he said. I think that he is taking a very sensible line towards something to which there is no simple answer. The point is that, according to the amendment which I have put down, children and a stable union may create an obligation. If you marry someone, you immediately enter into an obligation. When you have someone living with you for a week or so, you do not enter into an obligation; or, at least, it is on a very modified scale. But, eventually, if the relationship continues for long enough, a sense of obligation arises. That is what my noble friend has to solve. At what point does an association change from an entertainment into an obligation? I am not certain about this, but I have made a suggestion here. I admit that it is a pure cockshy and I leave it at that. I beg to move.
The Earl of Mansfield: I am obliged to my noble friend. I am not sure whether his description of his effort is entirely appropriate for couples who are not married. But, certainly, I will go into the matter before the next stage.
Amendment, by leave, withdrawn.
Clause 16, as amended, agreed to.
Clauses 17 to 19 agreed to.
Clause 20 [Interpretation]:
7.30 p.m.
The Earl of Selkirk The Earl of Selkirk moved Amendment No. 77:
Page 19, line 27, after ("any") insert ("dependent").
The noble Earl said: It seems to me that in this context a dependent child should be included, who may be above what we usually consider to be the age of a child, and may even be 25 or more. I suggest that the term "dependent child" would be better than "child of the family". I beg to move.
The Earl of Mansfield: If this amendment were accepted the court would not be able to consider the needs and interests of a non-dependent child—that is to say, a child over the age of 18 who is living at home but working or attending university. This lack of discretion would extend to most of the orders which we have been dealing with: occupancy rights orders, exclusion orders, orders dispensing with the consent of the non-entitled spouse to a dealing by the titled spouse relating to the matrimonial home, an order transferring the tenancy of the matrimonial home, and and order delaying the sale of a jointly owned matrimonial home.
Perhaps more seriously, a child who was in care in a residential establishment but who could be returned home if the violent spouse were to be excluded would not be regarded as dependent if the amendment were to be accepted. So this would be contrary to the views of the Scottish Law Commission.
Perhaps on reflection my noble friend will agree that his amendment is not so desirable as he first thought.
The Earl of Selkirk: A child who is strong enough to go to university is probably quite capable of dealing with an irate father. But what about a genuinely dependent child? He may be defective in some respects, or incapable of something. One is limiting this entirely to the case of a child who is included in the technical term "child". It seems to me that this requires extension. It should be extended to certain young people who have grown up but who are incapable of looking after themselves. They are particularly defenceless people when there is a violent husband.
May I ask the noble Earl to look at that point. I understand the point which he is making, but what is much more important is to include children who are genuinely dependent but who technically are above the age of childhood. If the noble Earl would care to do that I should be grateful and would withdraw the amendment.
The Earl of Mansfield: I will certainly look at the definition.
Amendment, by leave, withdrawn.
Lord Drumalbyn Lord Drumalbyn moved Amendment No. 78:
Page 19, line 38, after ("include") insert—

("(i) any article reasonably required by either spouse in connection with his employment, profession, trade, business or calling, or his personal leisure or recreational activities; or

(ii)")

The noble Lord said: The purpose of the amendment is to ensure that a spouse who is excluded from the matrimonial home by order of the court is entitled to retain or to recover possession of anything which forms part of the tools of his or her trade or anything which he or she uses in connection with his or her own personal leisure or recreational activities.
I looked through the Bill to see whether this point is already covered. I think there is at least a doubt about it. That is why I have put down the amendment. Clause 3(2) allows the court to make an order in relation to possession or use in the matrimonial home of furniture and plenishings. Subsection (4) of the same clause enables the court on the application of either spouse to make an interim order in relation to furniture and plenishings and also personal effects. Subsection (3) of the same clause requires the court to take into account the respective needs of the spouses—this is linked with financial needs and may therefore be very restricted—and the extent to which the matrimonial home is used in connection with a trade, business or profession of either spouse.
It seems that subsection (3)(d) envisages only the matrimonial home and the furniture and plenishings. I am not sure what is meant by the phrase "personal effects". Perhaps the noble Earl can tell me. It probably covers a shooting gun because that is registered, but does it cover a fishing rod or a billiard table? Would it cover a collection of coins or butterflies? Would it cover a treasured collection of gramophone records? Would it cover a sewing machine? I cannot see that any of these things are furniture or plenishings and I am not sure that they are personal effects. I do not think that is the normal meaning of "personal effects".
But there are articles which can be put either in
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the furniture class, or in the leisure activities class, or in the tools of the trade class. To some, a television set is a source of entertainment. To others, it is something only to be used for obtaining information in connection with one's trade or calling—for example, politics. To some a piano is an article of furniture, possibly to be surmounted with an aspidistra. To others, it may be a source of joy as a leisure activity, though it is probably less of a joy to others. To a professional musician who teaches music or who performs at concerts and the like it may be an essential tool of his trade. Therefore it is not furniture; nor is it personal effects. Things like typewriters may be one or the other.
May I ask my noble friend to consider this point very carefully. All I am anxious to do is to make certain that people concerned in these kinds of troubles do not have their troubles enhanced by being deprived of things which are part of their lives. It is in those terms that I commend this amendment and beg to move.
The Earl of Mansfield: If my noble friend's remarks emphasise anything, it is that we are utterly dependent upon our courts to exercise a sensible discretion if such a situation should arise as the noble Lord has postulated. One cannot, by means of a statute or even an enormous schedule setting out typewriters and aspidistras, try to legislate between the parties.
The definition of "furniture and plenishings" provides that only an article which is reasonably necessary to enable the home to be used as a family residence is included. If an article serves a reasonably necessary domestic use, it is surely right that the full enjoyment of the occupancy right should permit it to be regarded as part of the furniture and plenishings of the matrimonial home, notwithstanding its business or recreational character.
As I have said, I think that the courts can be relied upon to exercise a sensible discretion. But the matter goes slightly further. Under Clause 3(3)(d), before the court makes any order giving the possession or use of furniture and plenishings it must have regard to all the circumstances of the case, including
"the extent (if any) to which the matrimonial home is used in connection with a trade, business or profession of either spouse".
That wording is also reflected in the definition of a cohabiting couple's house in Clause 18(4). So I think the difficulty which is foreseen by my noble friend is perhaps more apparent than real.
Lord Drumalbyn: I wish it were more apparent than real. My noble friend seems to me to be satisfied that an amendment of this kind—I do not say this amendment—is not necessary. I am not sure that he has completely satisfied me upon that point and I hope that he will look at it again. The courts can only make a division of goods either on the basis of their own judgment of what is necessary to each of the parties and so on, or else according to the terms laid down in the Bill. My amendment shows that whatever you do the judgment of the courts will be necessary, but I doubt whether they are given enough guidance as to how to make this allocation. I should be grateful if my noble friend would look again at this point just to satisfy himself that there is sufficient guidance for the

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courts to make not only a sensible allocation but an allocation that they are permitted to make by the wording of the Bill.
The Earl of Selkirk: May I just point out that after all if a person goes bankrupt the tools of his trade cannot be taken away from him. Surely this should be perfectly specific, whatever they may happen to be.
The Earl of Mansfield: I cannot see the difficulties which my noble friend Lord Drumalbyn, in particular, seems to envisage but I will certainly look at it again in order to see if some difficulties are lurking.
Lord Drumalbyn: I am much obliged. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
7.40 p.m.
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 79:
Page 19, line 41, leave out (", subject to section 6(2) of this Act,").
The noble Earl said: I have spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Drumalbyn Lord Drumalbyn moved Amendment No. 80:
Page 20, line 2, leave out ("and usually occupied with").
The noble Lord said: This fills in the definition of a matrimonial home which lists the various things which are or have become,
"provided or made available by one or both of the spouses as, or has become, a family residence and includes any garden or other ground or building attached to, and usually occupied with, or otherwise required for the amenity or convenience of the house",
et cetera. I should like to ask first whether the words "and usually occupied with" are intended to relate to the particular building in question or whether they are related to the sort of building which is usually occupied with that sort of residence. I am not quite sure what it is, and it does make a difference.
Secondly, I am worried about the terms, especially as they follow the words
"or other ground or building attached to and usually occupied with".
Does that mean that it is physically attached? Here, again, I have an interest in music and I remember very well a man who retired to live in a very small house which would not accommodate his grand piano, so he built what I think is called a Colt house outside which, in the unlikely event of that marriage breaking down, could be removed and set up elsewhere. I am doubtful whether the words are necessary at all; that is why I tabled this amendment. But I think certainly there must be circumstances in which it would be legitimate to remove a movable building where it was used particularly by the person who was losing occupancy of the house. I beg to move.
The Earl of Mansfield: One would hope that the cohabiting couple envisaged by my noble friend would invest in a caravan or a houseboat rather than try to detach their Colt house from the realty, but I suppose
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all things can happen. The words "and usually occupied with", which I may say is exactly the wording used for a dwelling-house in Section 8(6) of the Succession (Scotland) Act, relates to the building and not generally, so to speak. The type of situation which is envisaged in this part of the definition is where there is an outbuilding which perhaps the wife or occupying spouse uses, perhaps to keep her deep freeze or her washing machine in, and in this instance it will be up to the court to decide whether or not such a building is part of the matrimonial home. I do not know that I can take the matter very much further than that.
If this amendment were agreed to it could widen the definition so that any garden or other ground or building attached to or otherwise required for the amenity, and so on, would then become the test as opposed to the slightly more restricted wording which has been used. I doubt whether I have satisfied my noble friend, but I live in hope.
Lord Drumalbyn: I think the noble Earl has gone a long way towards satisfying me. I am not all that difficult to satisfy. But it seems to me that there are buildings which do not necessarily go with the house. They go with one of the two people in the house and if the building can be removed it would be quite a good thing for a specific provision to be made for it to be removed. What about a workshed outside? That can be removed. These are things to which people attach the very greatest importance. The noble Lord, Lord Ross, may not attach much importance to these things, but people do attach a lot of importance to them and they will even dismantle greenhouses. These things play a very large part in the lives of the people concerned. However, I think on this occasion the noble Earl has satisfied me, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 20, as amended, agreed to.
Clause 21 [Short title, commencement and extent]:
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 81:
Page 20, line 19, after ("day") insert ("not later than 3 months after the date of passing of this Act").
The noble Lord said: This is the last amendment on the Marshalled List and I think we have done pretty well, bearing in mind the importance of what we have been dealing with. I am very glad that the noble Lord who has just spoken was not here earlier or my presence at a very important international gathering in Glasgow tomorrow might have been imperilled—Hampden Park.
Lord Drumalbyn: I have been here for most of the time; I was away for just over half an hour.
Lord Ross of Marnock: Yes, the noble Lord was here but not heard, we are glad to say.
This Bill has been welcomed by most people. I think on Second Reading I suggested that it must break some record because here we have a Law Commission Report in, I think, July of last year and it looks as though within the year it will become law and we have certainly done our part today. I want to see it not only go on to the statute book but actually come

1129
into operation. My amendment is this. Whereas at the moment under Clause 21 it is left to the Secretary of State to decide on an appointed day after the passing of the Act when it will come into operation, I suggest that it should not be later than 3 months after the date of passing of this Act. I think that gives reasonable time for the Government to make what administrative arrangements have to be made.
I say that, bearing in mind that we have already waited a fair length of time to get this legislation and certainly the people most seriously affected by it want it to be brought into force as quickly as possible. I am also conscious of the fact that in 1920 the Scottish Education Act empowered the Secretary of State on an appointed day to declare when the school-leaving age would be raised to 15. It was not until 1946 that that was done—a matter of 26 years. We do not want anything like that to happen here. I hope that the Government will see there their way to accepting this amendment, but, if not, I am sure they will appreciate the reason why I put it down. We believe it is a piece of worthwhile legislation, and we want it introduced and operated as quickly as possible—not later than 3 months after the date of the passing of the Act.
The Earl of Mansfield: There certainly has been no delay in the introduction of this Bill. The Commons only ordered the report of the Law Commission to be printed in July of last year and we are already at Committee stage on the result of the Bill. Bearing in mind the dust that some of these reports gather, it is pretty good going.
Some of the provisions in the Bill will have a considerable effect on conveyancing practice and it is important that persons and organisations such as solicitors and building societies, pay regard to their current practices and if necessary adapt them, and The Law Society must be given time to advise its members. It will also be necessary to make rules of court in relation to certain provisions. Sheriff clerks will have to be advised of the implications of the new legislation for court procedure, and the police, too, will have to look to their practices. It would be detrimental to everybody if the Bill were to be brought into operation before the proper arrangements could be made. I am very much in sympathy with what the noble Lord, Lord Ross of Marnock, has said, and with the spirit behind this amendment. But while I can undertake that the Government will take steps to ensure that the provisions of the Bill are brought into effect promptly once it has received the Royal Assent, I cannot commit the Government to a specific time period and certainly not one so short as three months.
Amendment, by leave, withdrawn.
Clause 21 agreed to.
House resumed: Bill reported with amendments.

Water Bill
7.53 p.m.
Lord Skelmersdale: My Lords, on behalf of my noble friend Lord Bellwin, 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 Skelmersdale.)
On Question, Motion agreed to.
House in Committee accordingly.
The LORD DRUMALBYN in the Chair.]
Clauses 1 to 5 agreed to.
Lord Underhill Lord Underhill moved Amendment No. 8:
After Clause 5, insert the following new clause:
("Water charges equalisation
. Notwithstanding anything in this Act relating to the charges payable to water authorities, section 1(1) of the Water Charges Equalisation Act 1977 shall have the effect as if before the words ("by order") the word ("may") shall be replaced by the word ("shall").").
The noble Lord said: This amendment seeks to insert a new clause relating to the Water Charges Equalisation Act. That Act, which was passed in 1977, provides for payment of equalisation levies and payments by and to water authorities. Section 1 of the Act provides that if in any year it appears to the Secretary of State that the relevant financing cost of a water undertaking are less than the average for all undertakings in England and Wales, he may—and note the word "may"—by order direct the particular undertaker to pay a levy which shall be distributed to other undertakers in the form of equalisation payments.
I need hardly stress that water is a basic commodity for the entire community and the purpose of the 1977 Act was to move towards some sense of equalisation of water charges. The Government have announced their intention not to move orders in connection with this Act for the next financial year and this is made possible because of the permissive nature of Section 1 of the Act to which I have referred. The purpose of the amendment is to make it mandatory upon the Secretary of State to make an order in any year, should it appear to him that there is an inequality in financing costs between the various water undertakers.
On Second Reading I questioned whether the Government were content just to let this matter slide or whether they had any other plans for the future. The noble Lord, Lord Skelmersdale, was unable to give me any information at that juncture, but he has kindly let me know that the Government have decided to give help to the Welsh Water Authority in lieu of any action under the Water Charges Equalisation Act, and that the Government have no intention of replacing this Act with any other scheme. This is very disappointing because I understand that there are other authorities which could be affected by equalisation, if not now then in the future.
The purpose of the Water Charges Equalisation Act was not just to secure fair treatment for Wales; it was also to introduce some form of strategy into water supply and lead towards equalisation of water pricing. It was a step towards removing anomalies. I must emphasise that, although my amendment will make it mandatory for the Secretary of State to make an order, the order need be made only if it appears to him that there is inequality in the cost of the various water undertakings. I hope the Government will feel able to accept this amendment because it still leaves the matter for the Secretary of State to see whether there is any inequality, and if the Government cannot concede this

1131
amendment I hope they will declare what intentions they have towards some form of equalisation on the principles of the 1977 Act. I beg to move
Lord Skelmersdale: I must chalk up another failure on my score card. My hope was that I had already explained this to the noble Lord in my letter, but obviously I did not go far enough, and with the permission of the Committee I will make another attempt. This amendment seeks to cover ground which I believe was extensively covered in another place. The amendments discussed there related to the charges payable for bulk supplies of water by one authority to another. As I understand it, the aim of this amendment is much the same; that is, to draw attention to the level of water charges in Wales and to seek some means of offsetting the loss of payment to the Welsh Water Authority following abandonment of the Water Charges Equalisation Scheme.
It is true that the charges made by the Welsh Water Authority for water services, in particular for water supply, are higher than the average, although they are not—and this is a popular misconception—the highest in the country. In 1980–81 the average bill for water supply alone within the Welsh Water Authority area was £30·87. Two English water authorities have charges 8 per cent. and 3 per cent. above those of the Welsh Water Authority. While it is true that charges in Wales are above the average, they are not so fat above the average as charges in some parts of England. However, it was concern about the levels of charge in Wales that led the previous Administration to pass the Water Charges Equalisation Act 1977, which is now the subject of this amendment.
As the Committee will know, the Government do not consider that this Act works in a way that can be justified. It was intended—as the noble Lord has said—to bring the domestic water supply bills of consumers closer to the average, by equalising the historic financing costs of water undertakers. While it succeeded in this objective—to the extent that slightly more than half the consumers affected had bills which move nearer to the average—it failed in that 43 per cent. of the consumers had bills which moved further away from the average. About 18 per cent. of the consumers whose unequalised bills were above the national average were shifted even higher above it. Some 25 per cent. whose unequalised bills were below were shifted even lower. In the Thames Water Authority area, for example, the average bill moved from 12 per cent. above the average to nearly 18 per cent. above. In the Northumbrian area, the average bill went from 18 per cent. below to nearly 25 per cent. below. The Committee will see from this that, although the Act in question is called the Water Charges Equalisation Act, for almost half of domestic consumers it was a disequalisation Act. We could not possibly defend such an arrangement. That is why we decided that there should be no more full orders under the 1977 Act, and indeed that the Act itself should be repealed.
It could well be asked: If the scheme under the 1977 Act worked so badly, could not a better scheme be devised? In the first place, the Act permits only one scheme to be used, the scheme it contains, so there is
1132
no flexibility there. Secondly, no one, not even from Wales or the South West, has so far suggested a scheme which would work better. Thirdly, and most importantly, there is the issue of principle. Should charges be equalised at all? Water charges are charges for services rendered, not a tax. It is, in our view, basically right in principle that costs for services should be paid by those to whom the service is given, subject only to giving through the social security system assistance to individuals in need. We will come on to this in a later amendment. Equally, it is wrong in principle that individuals should contribute to the cost of services they do not receive.
That is not to say that we are not concerned about the level of water charges in Wales; of course we are. The loss of payment under the equalisation scheme amounts to some £3·1 million to the Welsh Water Authority. In our view this requires giving that authority special consideration in view of the effects on its charges. The authority has been given five years, instead of three as in England, to achieve a rate of return of 1¼ per cent. on its net revalued assets. The Government have increased its external financing limit—that is, the amount of money it may borrow—from £21 million to £29 million, an increase of 38 per cent., as compared with an increase of only 13·4 per cent. for the English authorities. This will enable it to carry on with its capital programme with the least effect on annual charges.
I have explained why we can no longer continue to make orders under the 1977 Act. We are, however, aware of the implications of this decision for charges in the Welsh Water Authority's area, and have taken steps to mitigate the situation. It would be wrong to expect the Government to make further orders under this ineffective legislation. I must, therefore, ask the noble Lord to consider these facts—and I hope I have achieved a better explanation this time than I did in the letter to which he referred—and withdraw this new clause.
Lord Underhill: The explanation from the noble Lord, far from satisfying me, gives the view of the Government quite clearly, and it is one which frankly we could not accept. The very fact that there are English authorities with charges higher than those in operation in Wales justifies what I said in moving the amendment, that we are not just concerned with the position in Wales. With regard to the statement that the Act does not work, surely nothing can be more equal than to say that there should be some balancing where (I am reading from the Act)
"the financing costs of a statutory water undertaking are less than the average of the relevant financing costs of all statutory water undertakings in England and Wales".
It is related to cost.
I am rather surprised—perhaps I am not really surprised—that the Government should say that they have grave doubt, in fact great objection, as to any suggestion of equalisation of charges at all. Nobody queries that we can post a letter from here to just a mile around the corner for 14p but it is still only 14p to send it up to Orkney. There are many other examples. Surely the principle is that there should be equalisation of charges, because it is easier for some water undertakings to get supplies of water than

1133
for others. That is a very important factor, which was the principle behind the Water Charges Equalisation Act.
It is clear that the Government will not accept the amendment. It is regrettable that the Government have no intention of replacing the Equalisation Act with any other measure. While, in view of the thin Committee, I will not seek to divide on this, I think there is such a principle involved that this amendment must be moved and negatived.
On Question, amendment negatived.
Lord Underhill Lord Underhill moved Amendment No. 9:
After Clause 5, insert the following new clause:
("Water rate rebate scheme
. Notwithstanding anything in this Act relating to the charges payable to water authorities, after section 30(6) of the Water Act 1973, there shall be added the following new subsection:—
"(6A) Nothing in this Act, or in any enactment passed before this Act in relation to a water authority, shall be deemed to operate in a way which precludes any water authority from undertaking a water rate rebate scheme to alleviate the impact of water rates on such groups and categories of water rate payers who otherwise would be caused personal hardship by the level of water rates they would have to pay.".").
The noble Lord said: It may be for the convenience of the Committee if I speak to Amendment No. 10 at the same time, because both these amendments seek to give power to a water authority to operate rebate schemes for its customers. Amendment No. 9 relates to a water rebate scheme and Amendment No. 10 to a rebate scheme in respect of sewerage charges. These amendments are necessary in order to introduce a more equitable basis of charging, because Section 30 of the Water Act 1973 places an obligation upon water authorities not to differentiate in respect of charges between different classes of consumers. This has been held to prevent the operation of any rebate scheme for either water or sewerage rates.
I referred to this matter at Second Reading, following which the noble Lord, Lord Skelmersdale, again kindly wrote to me to explain the Government's attitude. He pointed out that a matter of this kind can be best dealt with through the social security or taxation systems. But there are schemes for rent and rate rebates operating through local authorities, so I am not proposing anything new. Moreover, although fuel charges are mentioned specifically in connection with supplementary benefits, I believe I am correct in saying that water charges are not mentioned specifically. There is a legal provision for rate rebates for services operated by local authorities, and but for the establishment of the separate authorities with responsibilities for water supply and sewerage the rate rebate schemes of local authorities would still include rebates in respect of those services. I think it is correct to say that approaching three million ratepayers receive rate rebate, but there are many persons in receipt of rate rebates who do not come within the supplementary benefit schemes. It is these people who are in the poverty trap with which we are concerned.
These persons could not be covered by the benefit services as mentioned in the noble Lord's letter. Moreover, over the past few days it has been stated that many additional persons will be caught in the
1134
poverty trap in consequence of the Budget measures to keep benefits below the level of inflation and not to raise tax allowances. This greatly strengthens the arguments I am making. Time and time again there are issues in respect of which people who do not qualify for supplementary benefits get excluded, and hence we have this poverty trap. These are the people with whom we are primarily concerned. They would have qualified, no doubt, for rate rebates if it were not for the establishment of the water undertakings. Therefore, I hope the Government will see the principle involved in this and will accept the amendment. I beg to move.
Lord Skelmersdale: I am grateful to the noble Lord, Lord Underhill, for speaking to both these amendments together. It is often suggested that water authorities should introduce a rebate scheme, but this suggestion shows a misconception of the nature of water charges. The general rate is a tax on the beneficial occupation of property; I am sure we would all agree with that. Charges for water services, on the other hand, are raised in respect of services provided, in much the same way as other public utilities raise charges. Within the taxation system it has been the practice to provide rebates to reduce, either wholly or partially, the liability of those on low incomes. Outside that system, however, the suggestion of rebates raises difficult questions. Who should be paying for whose water, and why?
Before I leave that, I have in front of me Social Security Statutory Instrument No. 1299, which came into operation on 24th November last. Paragraph 19 of that says:
"The amount, calculated on a weekly basis, of the following miscellaneous outgoings payable in respect of the home shall be applicable under these regulations.".
Then there are seven or so of these, the second of which is,
"charges or rates in respect of water, sewerage and allied environmental services".
So I think that perhaps on this score the noble Lord has got it a little wrong.
Under Section 30 of the Water Act 1973 water authorities are required to operate charging systems which are cost-related and do not discriminate unduly against, or show preference to, any class of consumer. If there were a rebate system, either the cost of rebates would have to be recovered from other consumers in the form of higher charges for the services which they receive, which would be contrary to the Act, or the deficit in revenue would have to be met by a grant from the Exchequer. This would increase public expenditure and taxes.
There are thus no plans to introduce a rebate scheme. Successive Governments—including the last one supported by the noble Lord—have adopted the policy that if help needs to be given it is done through the social security system and not by subsidising prices. As I have said, the full cost of water services charges is taken into account when calculating supplementary benefit.
A further addition is that a variety of payment facilities is provided by water authorities to help their consumers ease the burden of payment. These include instalment systems and savings stamp arrangements in some areas, and a comparable example would be the

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TV licence stamps. The Anglian Water Authority hopes to introduce an instalment plan for domestic consumers who are unemployed or in receipt of supplementary benefit or rate or rent rebates. Those consumers will be able to pay their bills in 10 instalments. All water authorities will enter into special arrangements for cases of real hardship, each case being decided on its merits. Disconnection of supply for non-payment is taken only as a last resort according to the authority's code of practice.
I would emphasise that if relief is needed it should be provided through the social security system. That can be done at present. Any system such as the noble Lord proposes would be complicated and bureaucratic to operate. There is no good case for this proposal which was not supported, as I have said, by the noble Lord's party when in Government. I would, therefore, hope that the noble Lord would feel able to see his way to withdraw the amendment.
Lord Winstanley: Before the noble Lord, Lord Underhill, replies and decides what steps he will take with regard to his amendments, I should like to put one point to him which I think he may not have considered. My understanding of the rules governing supplementary benefit is that any person in receipt of supplementary benefit is barred from receiving a rate rebate or a rent allowance. Indeed, there have been many occasions on which I have had to advise certain elderly people who are in a borderline situation that they are sometimes very much better off by forgoing supplementary benefit and then claiming rate rebates and/or rent allowances. I think that unless this particular matter is cleared up there could be a difficulty.
I am entirely in favour of people in difficulties being assisted with regard to water rates or sewerage rates. But the fact remains that if they are introduced in the same form as a rate rebate or a rent allowance people in receipt of supplementary benefit would automatically be excluded from receiving them. I wonder whether the noble Lord, Lord Underhill, has considered that point.
Lord Skelmersdale: Before the noble Lord, Lord Underhill, does so perhaps I should point out that the noble Lord, Lord Winstanley, is talking about the old water rate. At the moment we are talking about something rather different—that is to say, the water charges for services rendered.
Lord Underhill: It would appear from the last interchange of views that I shall certainly have to look to see whether the noble Lord, Lord Winstanley, is correct. There obviously seems to be a slight difference about the matter. I am grateful to the noble Lord the Minister for giving me information about the statutory instrument. That shows how much I must improve my own personal research services. I am grateful to him. However, it does not get over the problem to which I have referred—namely, the problem about people who are not in receipt of supplementary benefits. Those are the people about whom we are concerned.
Nevertheless, it is pretty clear that the Government would have some problems if this amendment were
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carried. I think that the principle that we are trying to implement is a correct one, and I would be happier if the Government were to make some offer to try to look at the position of these people who are in the poverty trap. However, as we have raised this question as regards so many other issues and received no answer, the only thing that I can do is to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 10 to 13 not moved.]
House resumed: Bill reported with the amendment.

Forgery and Counterfeiting Bill [H.L.]
8.15 p.m.
Viscount Colville of Culross: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, that the House do now resolve itself into Committee.—(Viscount Colville of Culross.)
On Question, Motion agreed to.
House in Committee accordingly.
[THE LORD DRUMALBYN in the Chair.]
Clauses 1 to 10 agreed to.
Clause 11 [Amendments of Mental Health Acts]:
Viscount Colville of Culross Viscount Colville of Culross moved Amendment No. 1:
Page 7, line 25, leave out ("a medical recommendation or") and insert ("any recommendation for admission or guardianship or medical").
The noble Viscount said: I beg to move Amendment No. 1. None of the amendments that I have put down tonight is of any very great substance, but they do correct some errors and omissions. In Clause 11 we are assimilating to the phraseology of the Bill some specific offences which were created by the Mental Health Acts in England and Wales and Northern Ireland respectively. At the top of page 7 is the list of documents under the English Act, forgery of which is an offence, and a similar list occurs half way down page 7 in relation to the Northern Irish Act. Unfortunately, the formulation in New Clause 98 (1B) of the Northern Irish Act does not fit in with the phraseology elsewhere in that Act and this amendment puts it right and puts the wording in line with the rest of the phraseology in the Northern Irish Act. Therefore, that would be an improvement on the Bill. I beg to move.
On Question, amendment agreed to.
Clause 11, as amended, agreed to.
Clauses 12 to 19 agreed to.
Clause 20 [Prohibition of importation of counterfeit notes and coins]:
Viscount Colville of Culross Viscount Colville of Culross moved Amendment No. 2:
Page 10, line 15, leave out ("Subject to subsection (2) below.").
The noble Viscount said: I beg to move Amendment No. 2 and with the Committee's permission I wish to speak also to Amendments Nos. 3, 4, 5 and Amendment No. 10 in the schedule. Clause 20 deals with the importation of a counterfeit coin or a currency note and Clause 21 deals with the exportation of it. Why anybody should want to import or export counterfeit coins or currency notes I have no idea, but the fact of the matter is that, under the present law, if one wants to import them one can do so if one gets a permit from the Customs and Excise under Section 2(2) of the Revenue Act 1889.
Similarly, under Section 7(1)(b) of the Coinage Offences Act 1936 you can export counterfeit coins if you have a lawful authority. Unfortunately, the provision for a lawful authority to export coins under Clause 21 has somehow been missed out in the drafting, and it seemed to those who advised me that the simplest thing to do was to make it a matter that in both cases can simply be done by the consent of the Treasury. Therefore, instead of preserving subsection (2) of Clause 20, which deals with the special arrangements for importation, and in order to make good the omission of a power to permit the exportation of these counterfeits, in both cases we simply make the matter subject to the consent of the Treasury. It greatly simplifies everything and enables one to repeal reference to the 1889 Act in the schedule.
With that explanation I move Amendment No. 2. Perhaps we can take the others formally when we reach them. I beg to move.
On Question, amendment agreed to.
Viscount Colville of Culross Viscount Colville of Culross moved Amendment No. 3:
Page 10, line 17, after (" coin ") insert (" without the consen of the Treasury ").
On Question, amendment agreed to.
Viscount Colville of Culross Viscount Colville of Culross moved Amendment No. 4:
Page 10, line 18, leave out subsection (2).
On Question, amendment agreed to.
Clause 20, as amended, agreed to.
Clause 21 [Prohibition of exportation of counterfeit notes and coins.]:
Viscount Colville of Culross Viscount Colville of Culross moved Amendment No. 5:
Page 10, line 23, after (" coin ") insert (" without the consent of the Treasury ").
On Question, amendment agreed to.
Clause 21, as amended, agreed to.
Clauses 22 to 25 agreed to.
8.23 p.m.
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 6:
After Clause 25, insert the following new clause:
("Amendment of Schedule 1 to the Criminal Justice (Scotland) Act 1980
. In Schedule 1 to the Criminal Justice (Scotland) Act 1980 there shall be added at the end the following—
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"CUSTOMS AND EXCISE MANAGEMENT ACT 1979. The following provisions in so far as they have effect in relation to the prohibitions contained in sections 20 and 21 of the Forgery and counterfeiting Act 1981 namely:— Sections 50(2) and (3) Section 68; and Section 170 (various offences committed in connection with contraventions of prohibitions on the import and export of counterfeits of currency notes or protected coins)."

Two officials authorised to do so by the Secretary of State, being officials of the authority or body which may lawfully issue the currency notes or protected coins referred to in column 3 hereof.

That the coin or note identified in the certificate by reference to a label or otherwise is a counterfeit of a currency note or protected coin; where "currency note" has the meaning assigned to it by section 26(1)(a) of the Forgery and Counterfeiting Act 1981, and "protected coin" means any coin which is customarily used as money in the United Kingdom, any of the Channel Islands, the Isle of Man or the Republic of Ireland.

THE FORGERY AND COUNTERFEITING ACT 1981 sections 14 to 16 (certain offences relating to counterfeiting).

Two officials authorised to do so by the Secretary of State, being officials of the authority or body which may lawfully issue the currency notes or protected coins referred to in column 3 hereof.

That the coin or note identified in the certificate by reference to a label or otherwise is a counterfeit of a currency note or protected coin: where "currency note "has the meaning assigned to it by section 26(1)(a) of that Act, and "protected coin" means any coin which is customarily used as money in the United Kingdom, any of the Channel Islands, the Isle of Man or the Republic of Ireland.".").

The noble Earl said: This is a minor but useful amendment which will help to solve problems which arise in trials in Scotland. In England and Wales Section 9 of the Criminal Justice Act 1967 permits evidence to be given by written statements in criminal cases. However, in Scotland there exists a general rule that all evidence must be given orally by witnesses in open court unless there is a good and justifiable reason for departing from that rule. Although the Government believe that this general rule should be retained for Scotland, there are occasions when benefits do occur where it is relaxed for certain types of evidence; for example, where the evidence, although crucial to the proof of the case, tends to be of a routine nature and is rarely contested in court.
The Government wish to take this course in relation to the present Bill and, in effect, wish to make provision for certificate evidence on the counterfeit nature of notes and coins in the counterfeiting part of the present Bill. An amendment on this line will save officials of the Royal Mint and note-issuing banks in the United Kingdom having to travel to Scottish courts to give evidence personally in cases of this nature at vast public expense and no little trouble to themselves.
In Scotland it is competent to examine only the witnesses named in the indictment, and substitutes cause problems if these officials, about whom I have spoken, are unable to come to a trial at the last moment. Our procedure does not permit last-minute changes of witnesses. So in the past trials have had to be adjourned at no little inconvenience and cost. Therefore, this procedure offers a small but useful saving in public expenditure and will prevent delays caused by substitute witnesses.
Under the procedure contained in Section 26 of the Criminal Justice (Scotland) Act 1980, which will apply to counterfeit currency certificate evidence, the rights of the accused to challenge the evidence are specifically retained, and he is given an adequate period within which to decide whether or not to challenge the evidence contained in the certificate. The prosecution is required to serve a copy of the certificate on the accused at least 14 days before the trial, and if the accused wishes to challenge the evidence, qualification or authority of the witnesses mentioned in the certificate he must do so by serving notice on the prosecutor at least six days before the trial.
In the event of such a challenge the prosecutor is required to prove the counterfeit nature of the note or coin in the normal way by the witnesses being called to give oral evidence in court. The use of certificate evidence in no way lessens the burden of proof laid on the prosecutor; nor can it be seen as changing the onus of proof from the prosecution to the accused, as the prosecution is still required to prove the matters in the certificate. Therefore, I commend this minor but useful amendment to the Committee. I beg to move.
Viscount Colville of Culross: All I need say is that I am wholly convinced by the argument of my noble friend that this would be an improvement to the Bill.
On Question, amendment agreed to.
Clause 26 agreed to.
Clause 27 [Meaning of "counterfeit"]:
Viscount Colville of Culross Viscount Colville of Culross moved Amendment No 7:
Page 15, line 20, after ("coin") insert ("(a)").
The noble Viscount said: Amendments Nos. 7, 8 and 9 stand together, so perhaps I may move Amendment No. 7 and speak also to Amendments Nos. 8 and 9. Clause 27 is one of the definition clauses and defines a thing as a counterfeit of a currency note or a protected coin:
"…if it is not a currency note or a protected coin but resembles a currency note or protected coin (whether on one side only or on both) to such an extent that it is reasonably capable of passing for a currency note or protected coin of that description".
The reference to something which is not a currency note or protected coin but which resembles one is included to ensure that coins which are issued by the Republic of Ireland, for instance, and which resemble British coins, are not caught by the definition of "counterfeit".
However, upon reflection the effect of this reference has been to cast some doubt on whether a protected coin—an ordinary British coin—of one denomination
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which is altered so as to pass for a protected coin of another, inevitably higher denomination is a counterfeit under the Bill. I understand that an abuse of this sort is already known, though far be it from me to explain in your Lordships' Committee what it is or how it is done. It occurs to me that it might become even more common with the introduction of 20p and £1 coins, which we hear are to come in the future.
Therefore, the intention is to clarify the position under the Bill and make it clear that the protected coins which are altered to resemble other protected coins are, indeed, counterfeits under the Bill. That is what Amendment No. 8 seeks to do. Amendment No. 7 is, of course, purely paving. Amendment No. 9 has the effect merely of deleting subsection (3), because that was a definition of the word "making", and I think that it is clear from what I have already said that the alteration of the shape, size or colour is already covered by the amendment to which I have just referred. Therefore, that subsection is no longer necessary and, again, we can simplify the Bill and deal with a current problem. I beg to move Amendment No. 7.
On Question, amendment agreed to.
Viscount Colville of Culross Viscount Colville of Culross moved Amendment No. 8:
Page 15, line 24, at end insert—
("or
(b) if it is a currency note or protected coin which has been so altered that it is reasonably capable of passing for a currency note or protected coin of some other description.").
On Question, amendment agreed to.
Viscount Colville of Culross Viscount Colville of Culross moved Amendment No. 9:
Page 15, line 35, leave out subsection (3).
On Question, amendment agreed to.
Clause 27, as amended, agreed to.
Clauses 28 to 33 agreed to.
The Schedule [Repeals]:
Viscount Colville of Culross Viscount Colville of Culross moved Amendment No. 10:
Page 19, line 31, at end insert—

("52 & 53 Vict. C 42.

Revenue Act 1889.

Section 2.").

On Question, amendment agreed to.
Viscount Colville of Culross Viscount Colville of Culross moved Amendment No. 11:
Page 20, leave out lines 41 to 43.
The noble Viscount said: Amendments Nos. 11 and 12 go together. What in fact has happened is that the two Northern Irish Acts referred to have been consolidated by the Road Traffic (Northern Ireland) Order 1981. Therefore, we should have a reference to the up-to-date order if we have anything at all. In fact, the two offences now in existence under that order are very similar to some offences in England and Wales, possibly in Great Britain, under other legislation which, because of certain technicalities, it has been thought better not to try to include in this Bill at all. The equivalent Great Britain legislation is

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not being repealed and is not being made part of the Forgery and Counterfeiting Bill. It therefore makes pure sense to leave out the equivalent Northern Irish legislation altogether, and there should be no reference to this part of the Northern Irish statute book at all. I therefore beg to move that these two references be left out. I beg to move Amendment No. 11 first.
On Question, amendment agreed to.
Viscount Colville of Culross Viscount Colville of Culross moved Amendment No. 12:
Page 20, leave out lines 56 to 59.
On Question, amendment agreed to.
The Schedule, as amended, agreed to.
The Deputy Chairman of Committees: The Question is, That I report the Bill to the House with amendments.
Lord Davies of Leek: Before we pass on, may I, as a layman, ask a very simple question? I apologise for not being here at the beginning of this debate. In Clause 13 the offence of forgery at common law is abolished. In Clause 33 the citation says:
"This Act may be cited as the Forgery and Counterfeiting Act 1980.
Lord Denham: If the noble Lord will forgive me, we have already passed this part of the Bill. It really would be out of order to go back and discuss a part of the Bill that we have already gone past.
Lord Davies of Leek: I am discussing the citation of the Bill, which calls it the Forgery and Counterfeiting Act, but I gather that forgery is abolished at common law.
Lord Denham: We have already passed the citation of the Bill. We have already passed the Title of the Bill. The Question before the House is, That the Bill be reported back to the House with amendments.
Viscount Colville of Culross: If it would help, the simple answer is, yes, the common law offence of forgery is being abolished. It is being replaced by a new statutory set of definitions, of which the Bill contains the whole detail.
House resumed: Bill reported with the amendments.

Petrol Tax: Proposed Increase
8.34 p.m.
Lord Underhill Lord Underhill rose to ask Her Majesty's Government what consideration has been given to the effect on industry and also on public and private transport in rural areas of the increase in petrol tax introduced in the Budget.
The noble Lord said: My Lords, the Question which I beg leave to put is not intended to cover all the various measures of the Budget nor the full consequences of the Budget. The Question is concerned with the effects of the increased tax on petrol and diesel fuel. Mr. Michael Foot, the Leader of the Opposition, has observed that the 20p increase in petrol and fuel tax will inflict serious injury on the economy and
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make it infinitely more difficult to embark upon any process of recovery.
On the morning after the Budget the Guardian stated:
"Britain's road users, from the private motorist to the operators of large commercial fleets, are reeling from the Chancellor's Budget proposals".
A spokesman for the Automobile Association has commented:
"The Budget is a kick in the teeth for motorists who have been lumped together with the luxuries of life to place them in the forefront of the Chancellor's tax increases".
The point of the AA is of course that this affects not only the individual but the whole of industry, and they say it has been lumped together with taxation on the luxuries of life.
There can be few who do not agree that this tax increase will have a disastrous effect on the rural areas. Inevitably it must have effects on jobs, services, and general living standards. Many noble Lords, with their close knowledge of rural areas, will understand only too well that this is what will happen. Those in rural areas are more dependent on their cars than are other people. In so many areas bus transport is either inadequate or non-existent, and in only a small number of areas are there any train services.
Many people living in the villages have to travel some distance to work, and they are compelled to rely on car transport. Shops are limited. In fact, many village shops are closing or have closed, and this process continues. For major shopping and access to many other services there has to be reliance upon the car. Often to visit a hospital from the village to the town requires reliance upon either one's own car or somebody else's car. One survey indicates that 81 per cent. of journeys in rural areas are by car compared with 66 per cent. in the towns. In some of the remote areas the percentage is even higher. For the rural car owner it is estimated that there will be at least £1 extra to the weekly cost of running a car, and that is an estimate on a very modest annual mileage.
This is not all. Smaller garages in many villages have of necessity to charge a higher pump price. Whereas in most towns petrol can be obtained at about £1·50—I can get it for between £1·48 and £1·49—in rural areas it is around £1·60, and in the more isolated places even higher. It has been made clear too that the higher tax will also add to delivery costs, and these will be reflected in the rural areas in higher costs, and higher prices for most items.
Although there are many people who are better off living in villages outside towns, it has to be kept in mind that generally rural incomes are some 10 per cent. below the national average. Fortunately, this increased tax will not directly affect bus services as fuel tax has been rebated for bus operators I believe since 1974. But there is nothing within the Budget to help operators to start or extend bus services. Therefore, there has to be this reliance on the private car. In passing, it is feared that the problems of local council financing, and the reduction in Government transport supplementary grant to county councils, may lead to a reduction in grants to bus operators in some areas. This obviously will add to the problems of rural transport.
There will be few people, if any, who will be exempt

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from the effects of this increased petrol and fuel tax. It will be an added burden of cost to the farmer. The fishing industry, which is going through very hard times, will have this added burden of costs which it will have to face. Local councils, who are being forced to cut services—and almost every day we read of the increased rates which councils, no matter who controls them, are having to request from their ratepayers—are now to face a substantial increase in petrol and fuel costs, which for many local councils will be very heavy indeed.
I have referred to the position of small rural garages. The Motor Agents' Association have pointed out that a retail dealer taking a 6,000 gallon petrol delivery will now face an instant bill for a further £1,200. The association has warned that the prospects for independent outlets are very bleak indeed. Large retail shopping concerns have stressed that the costs of distribution caused by the added petrol tax will have to be passed on to consumers. That is exemplified by this statement by the Co-operative Union, the body which speaks for the network of Co-operative shops:
"The substantial rise in petrol and derv duty will make for vast increases in costs to the Co-op Movement and our competitors and can only be a calamity for working people".
I have dealt so far in the main with the effects of the increased petrol tax on the individual. What will be the effect on industry? On the morning after the Budget the Financial Times commented:
"Industrialists were shocked last night by the Budget's lack of help for most of industry, despite the cut in minimum lending rate".
Referring in particular to the increased petrol and fuel tax, the paper observed:
"This seems an odd thing to do if the objective of the Budget is to help industry".
Various transport organisations have expressed their deep concern. The Freight Transport Association estimates that the tax will add 4 per cent to transport costs. That, they say, will be passed to their customers who in turn will pass on the increase to consumers. The British Road Federation commented that the tax on petrol
"is now 62·3p per gallon, with another 20p for VAT, all this at a time when industry is being exhorted to invest and workers to produce more goods".
The Road Haulage Assocation stated that because hauliers were already in serious difficulties there would be no alternative but to pass on the 4 per cent. cost increase, which must push up the price of goods carried. According to the association, haulage operating costs rose by 17·3 per cent. last year, meaning that hauliers now need 23 per cent. more revenue to cover costs compared with the previous year. I referred to the morning after statement by the Financial Times. After a week's reflection, that paper stated on 19th March:
"British industry could not be hit much harder by the Chancellor's measures on fuel prices than has been realised".
The article went on to say that the 20p additional tax on derv was likely to have
"a more severe impact on United Kingdom industry than even the petrol increase because the pump price of derv is now higher than in most Continental countries".
I understand that figures issued by the Department of
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Energy give the pump price of derv in the United Kingdom as 161p per gallon. The next highest of seven West European countries are Germany, 120p, or 41p lower; France, 116p; and Belgium, 113p. I will not quote the others, which are even lower than those. Even before the Budget increase, the tax on derv plus VAT was higher in the United Kingdom than in most Continental countries. Now our industrial concerns will be up against the even lower transport costs of those competitors. In addition to the increase in transport costs, those industrial concerns which use oil for power and heating will be faced with similar increased costs. All that is over and above the costs of other energy supplies which, as has been stressed time and again, are much higher than for our Continental competitors.
I appreciate that the Government have introduced some allowances for large users of energy, but the general view is that they are inadequate and that crippling energy costs are facing our industrialists. That view was expressed, for example, in recent days by the Chemical Industries Association, which is deeply concerned about the tax on heavy fuel and has stressed the problem it will be for its members to meet those costs and compete against their competitors in the export market.
To sum up, while I am not suggesting that what I have spoken of is the main thing wrong with the Budget, the increased tax on petrol and fuel can only make life much harder for those living in rural areas. It must be inflationary in causing prices to rise in consequence of the increased transport costs. It will also be a further blow to industry by increasing its costs for transport and power. I therefore believe I am justified in asking the question: Has all this been taken into consideration by the Government?
8.44 p.m.
Lord Mackie of Benshie: My Lords, the noble Lord, Lord Underhill, has asked a Question which many people, including a large number of lifelong Tories, have been asking. I think it extraordinary that the Government do not appear to understand what goes on in the country, and I shall briefly underline what the noble Lord, Lord Underhill, said. The countryside today—this applies particularly the further north one goes, and especially to the countryside from where I come—is wholly dependent on the motor car. Every man on my farm has a car. Although it costs a lot to run their cars, they must do so because there is very little public transport, making the car essential. Indeed, the whole life of the countryside revolves around the motor car. They cannot go to the village shop any more and buy goods at a reasonable price; they must go to the supermarkets, which are situated some distance away, before they can get food and other goods at the same price as their industrial counterparts.
Every aspect of life in the country, particularly in the Highlands, is dependent on the motor car, and when it comes to derv and the increase in the price of fuel for transport, I wonder if the Government really appreciate the state agriculture is in. I know that the big grain growers have had a fair year this year. But if one takes a look at the income of Scottish agriculture, which I know most about, one finds the figure which I

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shall use in tomorrow's debate; namely, that the overdrafts of the farmers have gone up so much that they now pay the banks three times the amount of money they receive in net income. That is the state of agriculture all over Scotland, and 20p on the price of their transport fuel is another of the straws which will do immense harm to the industry.
I do not know what the exact figure is for inflation on the tax, but I imagine it is about 7p. I think people would have said, "We shall have to play our part and accept the fact that the tax on fuel might have to go up with inflation", but a rise of 20p is far and away beyond that sort of figure. If one looks at industry overall in Scotland—and I am speaking of Scotland because I know the rural areas there—one finds that a great many competent firms are in a very poor state indeed, and to them this appears to be just another tax—another burden and another straw on the camel's back—and I cannot understand what the Government are playing at. They are supposed to know the rural areas. Indeed, most of their Members are from the rural areas, and they must be aware of what is going on in those parts; witness the revolt against the tax.
It is all very well to have a single main plank of policy, which I understand to be the need to keep down inflation; but at the same time one must look at what is happening to industry, both rural and urban. Nobody who reads the financial reports of the companies in the papers can doubt that we are in an extraordinary position. I shall be interested to hear the Minister's reply, because he must tell us that the Government intend to use some skill and in some way help vital industry and agriculture in this country. It appears that until now they have been taking the money away from the industrialists, the people who work, and giving it to the bankers. Now they are going to take it away from the bankers in one form or another, and there will be much waste somewhere in between.
I shall not continue, because it seems to me that the case is self-evident, and in any case it has been extraordinarily well made. I shall be most interested to learn how an intelligent Minister, such as we have here in the noble Lord, can justify this extraordinary increase—out of all proportion to inflation—imposed on fuel that is absolutely vital for the regeneration of industry.
8.50 p.m.
Lord de Clifford: My Lords, I rise to speak because I live in a deeply rural area, which for some years now has found life becoming increasingly difficult. When we consider the cost of petrol we have to go back a few years to when the price was suddenly raised by OPEC. That decision caused considerable trouble in the rural areas, particularly in areas such as that in which I live. People in the rural areas, in particular the smallholders, lost all their deliveries. We used to have our milk delivered, but we lost that delivery. We used to have food delivered for our birds and animals, but we lost that delivery, too; and we lost much more besides. So we had to do it ourselves, and that meant spending a considerable amount of money.
After that there were price rises—natural, I suppose, during times of inflation—and then all of a sudden another 20p a gallon has been added to the price of
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our petrol. This is a most emotive subject. The people in the rural districts want to know why they are being picked on. Car tax has been increased; the cost of insurance has gone up. Everything has gone up. Then on top of that 20p a gallon is added to the price of petrol.
It is easy to sit in this Chamber and feel that perhaps there is some very good financial reason why the rural areas should be picked on to be hammered. But consider the situation when one has to go out to get food for one's animals. In the past fortnight or so one has had to go through perhaps four floods, wondering whether one will be able to get there, and afterwards get back. One is not quite sure whether one's place will be there when one returns. That kind of journey has to be undertaken in order to keep one's stock alive. In such circumstances people reach a state where, in a rather vulgar tone, they say, "Oh, let's give it up". But the people in the rural areas are rather tough; they will not give up. However, these increases will more and more force people out of rural areas.
It is nice to think that one can go out and catch a bus in order to go somewhere. In my area we are seven miles from the nearest big town. One has to travel three and a half miles to get a bus. How can anyone expect elderly people to walk three and a half miles for a bus? They have to depend on their cars. Now the price of petrol has gone up and so there is an extra strain on their pockets merely in getting to a bus. One wonders what will happen to people when the prices in the shops go up yet again—and go up they must.
Take as an example the farmer, who has a delivery of fertiliser. The raw material for the fertiliser comes off a ship and goes into the manufacturer's premises, where the first increase in cost is imposed. After being manufactured the fertiliser goes to a distributor and another increase is involved. It then has to be delivered to the farmer—another increase. The farmer produces the stock and takes it to market—and that involves yet another increase in cost.
It seems to me that the rural areas are getting the hammer in every way. The noble Lord who is to reply to the debate can produce all kinds of statistics about the need to control inflation, but he must also produce a story that the rural areas are prepared to accept; otherwise the Government will be in dead trouble in these areas.
8.56 p.m.
Lord Davies of Leek: My Lords, following the constructive speech that we have just heard I do not want to try to ram my points home, after we have had a busy day. The points are self-evident, but I want to look at this matter from another angle. Recently financial publications of various kinds have used the colloquial term that
"The Government have knocked the stuffing out of British industry".
I would add that the same has happened to agriculture and to the countryside in general. Throughout the ages the great Conservative Party has tried to preserve the special philosophical outlook of the countryside of Britain. The Conservative Party has been the countryside's protector. But has the Conservative Party now abandoned that position? I am quite sure that that

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question will be asked of the traditional Conservative in the rural areas at the next General Election, whatever may happen to any other party.
I used to talk to farmers at cattle markets during election time. A farmer would say to me, "I can't possibly vote for you. My father would roll in his grave". Occasionally, a farmer might say, "I won't vote against you, but I can't possibly vote for you. Our family has been Conservative all my life". A person who does not understand the countryside might scoff at that; but in the past the Conservative Party had a great amount of coinage in rural England. Now much of that has been spent.
The English countryside derives a peculiar characteristic from the way in which arable and pastoral life have been combined: cattle, crops and cottages knit together throughout the ages in a symphony of production, orchestrated with the rivers, the fishing, the village school, the village church. The village school has gone. It was the focal point of the social life of the village. Now in thousands of villages it has gone.
I want to look at this question from the point of view of the farmers, too. I shall put the argument, whether it be right or wrong. Farmers are asking for a 15·3 per cent. rise in EEC farm prices. Rural communities are complaining. Even before the Budget's swingeing 20p increase on petrol, in the United Kingdom costs had risen faster than in other EEC countries, due to inflation, increasing more quickly month by month. The Chancellor of the Exchequer, Sir Geoffrey Howe, after a meeting of EEC Finance Ministers in Brussels, emphasised that an increase in farm prices had to be kept as low as possible. How can that be expected when we have this swingeing tax on petrol, oils, and other fuels? Everything in country life is overburdened with transport costs. The railways are derelict, railways that may have been kept alive despite the "Beechingitis" which crippled the country many years ago.
I think there is an important point for both sides of the House and whatever party may reign in the future. Budgets will have to be brought to the country in a new spirit. I know from my brief work in No. 10 that too small a group of people are "in the know". All this rubbish about leaking! You had a complete leak, or a complete constructive analysis, of what the Budget might be. There may have been a few rogues who have tried to make money; but there have been few in the history of the British Government of any political party who have tried to make money by knowing the secrets. Perhaps the Minister who is to reply, who is a most capable and constructive Minister, will be able to inform me. When this Budget was made, were the Ministers of Energy and Agriculture and other people of importance in the economy of the land brought in for discussion? There should be fuller discussions, whatever party is in power, among people in the key areas of the economy and agricultural and industrial production.
I remember Aneurin Bevan talking in the smoke room of the other place more than 20 years ago about the need for more people in key positions in Government to put in their say about the Budgets of the future. I think that was not done. What consultations take place?
Taking one argument for horticulture, which has not
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been mentioned, this Government have done nothing but throw stones at the important glasshouse industry of Britain. The other day more than 500 glasshouse owners lobbied the Minister of Agriculture. It had never been known before. Why They suffer unfair competition; they suffer from subsidies to Holland of about 40 per cent. on gas prices; and as little as possible is done to help them. The president of the National Farmers' Union took the lead in the demonstration for horticulture and fishing. Most important is the diesel and derv oil for the fishing industry. Horticulture and fishing are probably the most hardly-burdened with fuel costs. The NFU calculate that the Dutch Government give Holland's growers a cost advantage of £10,000 an acre overall against heavy fuels and twice as much against light oils. The Department of Energy should be consulted on this. It is not only 20 per cent. on petrol, it is 20 per cent. on diesel engine and road vehicle liquids, light oil and heavy oil. All are needed in the agricultural industry.
Having made that point, I make another point before I sit down. The noble Lord will know what I am talking about when I say that the phenomenon of fiscal drag is increasing. Income tax is affected too because of the progressive structure in an inflationary environment. The higher that money incomes go, the less reality there is about the amount of income tax paid. I cannot go into this at this hour. The noble Lord knows what I am implying. We have got to get rid of the fiscal drag. Countries like Canada, Denmark, Holland and Sweden have adopted measures to try to prevent this. I believe that, far from this Budget succeeding in revitalising British agriculture and horticulture, it will set it back. Consequently, I hope we shall see in the future a completely new approach to the Budget, whatever party may he in power.
9.5 p.m.
Lord Lee of Newton: My Lords, the case has been well made that this impost is going to push large sections of our industry backwards in comparison with their competitors; yet every day the Government complain about most of British industry being uncompetitive. And then they proceed to ensure that it becomes more so by stupid actions of this sort. I will not go over it all again. My noble friend spoke about the effect on the chemical industry. He is right. I can give examples of half a dozen other major industries: cement, glass, brickmaking, et cetera which will be heavily handicapped in consequence of the oil impost in this budget. I want to approach it from a different angle. I happen to have been at the Ministry of Power when Sir Maurice Bridgeman, then chairman of BP, gave me the glad news that the finds of gas in the North Sea were a commercial proposition. We knew from the geologists that we would get oil as well. It was a great day.
One envisaged a complete change in the economic fortunes of this nation. Instead of that, what have we got? Our export charges are determined by OPEC. We are now permitting them to condition our own internal charges as well. Indeed, you cannot possibly play about with the prices of petrol, derv and so on without making a complete distortion of the whole of our oil products. I recall that when we were having companies setting up in Britain to get oil, American

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oil companies, we always insisted that when they got a certain percentage of the market they should build their own refineries. Therefore, the continuity of turning heavy oil into petrol and so on was a continuous process. The petro-chemical industry became a great industry from the by-products of the oil when it was partly refined. It seems to me the Government at the moment have no particular type of energy policy at all.
This, under modern conditions, is almost criminal. If one looks at the 1980 Coal Act, they were there telling us that the NCB must stand on its own feet, must break even, by 1983. The future of much of our coal is in oil. But what are we doing, my Lords? Are we ensuring that as we research—I and am not speaking about the distant future; I am speaking about a year or two from now—we shall be getting large quantities of our oil from indigenous coal? Are we really going to go on with huge imposts of this type on the newest breakthrough that we have in our research and development so far as energy is concerned?
I mentioned gas a moment ago. When Sir Maurice Bridgeman told me that it was a great success I went out by helicopter to the "Sea Gem". That was the rig carrying out the drilling. She went down later, with a heavy loss of life. That great find gave us the opportunity to produce our own energy; but, prior to that, we had been dependent upon imports and indeed were importing methane from Algeria as well as from other parts of the world.
At the moment we are not utilising that remarkable discovery to the advantage of our industries. As a matter of fact, the charges that we are making for gas to industry are utterly and completely exorbitant, quite over and above anything that the industry either requires or wants, in order to subsidise the public sector borrowing requirement. Having done that—and it is almost lunacy from the point of view of policy for such things—we are forcing up prices artificially to industries which are already in very great difficulty in competing abroad. I remember when the West Midlands gas industry broke down. Every motor car factory in Britain stopped immediately. They could not continue without the gas. Here we are trying like mad to get BL into a competitive position and to get other sectors of the British car industry competitive, and we are now making absolutely certain that they have not a cat in hell's chance of competing with countries which have not any oil or gas of their own.
Heaven help us! The great finds which were to some of us going to revolutionise the whole of British industrial prospects are now gone. We are doing nothing whatever to give ourselves an advantage. Some time ago we had the artificial fibre industries pleading with the Government to help them. Why? It was because the American fibre industries were getting cheap oil, and in an oil-based industry such as artificial fibres we could not possibly compete with the Americans.
I am not trying to make a party political case at all; I am trying to make a case for a proper energy policy for this nation. The noble Lord, as much as I do wants to see us get out of this awful slump into which we have degenerated. I ask him to use his influence with his colleagues—especially at the Department of
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Energy—to try to make them see some sense. My colleagues—and, indeed, the noble Lord opposite—have shown that in the rural areas they are despondent. Transport costs to huge industries are now getting out-of hand. I am saying that in many of our manufacturing industries this Budget has been almost a death knell. I hope that the noble Lord will see to it that his Cabinet colleagues understand that in this day and age a nation cannot go on without a policy on energy. They really will have to make some sense out of the great discoveries that they have made.
The alternative is to go on as we are: spending the proceeds of the North Sea on unemployment benefit. At the end of that our great assets will have gone. It will be a criminal shame if that happens.
9.13 p.m.
The Minister of State, Treasury (Lord Cockfield): My Lords, if I may quote from Edmund Burke:
"To tax and to please is not given to any man".
The noble Lord, Lord Underhill, started by quoting statements made by representatives of the road haulage industry and by the motoring organisations criticising the increase in the tax on petrol. My Lords, what did he really expect them to do? Did he expect them to welcome these increases? Did he expect the brewers to welcome the increase in the tax on beer or the distillers to welcome the increase in the tax on whisky? Did he expect the tobacco manufacturers to welcome the increase in the tax on tobacco? When the Labour Government were in power, did he expect the income tax payers to welcome the continual increases in income tax that the Labour Government imposed upon the suffering British people? Surely he is not as naive as all that.
We regret the necessity for increasing taxes in this way, but necessity indeed it is, and I must therefore refer briefly to the background which has made these measures essential. In the year just ending—the present year—the Government's borrowing requirement (that is, the amount of their expenditure exceeding the amount of revenue the Government collect) is £13½ billion. If nothing were done, the borrowing requirement in the coming year would be £14 billion on a conventional basis and £15 billion on a revalorised basis. The judgment of my right honourable friend the Chancellor of the Exchequer was that it was essential to reduce that borrowing requirement to £10½ billion, both to maintain the downward path of inflation and to allow interest rates to be reduced. These were the two main objectives of the Budget and they are both of very great value to industry and to the private citizen, as well.
May I remind the noble Lord that the expenditure plans bequeathed to the present Government by the Labour Party would have involved expenditure of no less than £5 billion a year higher than in fact it will be next year. With the Labour Party in power, therefore, we would be talking not in terms of 20p a gallon on petrol but in terms of £1 per gallon increase on petrol if we were to finance the profligate plans the Labour Party had set out in detail in their then programme. Since then, of course, they have committed themselves—if "committed" is the right word—to an even higher level of public expenditure, which

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would carry with it an even higher level of taxation.
But given the overriding necessity of reducing the amount of the Government's borrowing requirement, it was essential that substantially increased taxation should be raised, and this necessarily involved significant increases in indirect taxes. My right honourable friend proposed increases in all the indirect taxes amounting in the aggregate to approximately £2½ billion. The noble Lord in fact claimed that petrol was being "lumped in" with taxation imposed on the luxuries of life. One of the principles of taxation which was learnt many years ago is that one is enabled to raise these large sums of money on the taxation of alcohol, tobacco and in these days petrol, because they are no longer regarded as the luxuries of life: they are part of the conventional standard of living. If they were not, it would not be possible to raise revenue on this scale.
Of the total increase of £2½ billion proposed in the Budget in indirect taxes, nearly half comes from the increased taxation of petrol and derv. It would be quite impossible to raise a sum of this magnitude from indirect taxation in any other way. I will not go through the figures in detail, but if noble Lords care to study the Budget red book, the financial statement in the Budget Report, they will see how totally impossible it would be to raise the required sums of revenue unless substantial increases of taxation were imposed upon both petrol and derv.
We realise, of course, that these are very significant increases but it still remains the position that the price of four star petrol, in real terms, is just about the same as it was at this time last year. Despite the increase of 20p, the actual price of four star petrol at the pump is almost exactly the same as it was last year. The price is actually lower in real terms than it was under the Labour Government in 1974.
I have been talking about the price of petrol. If we now look at the tax, that is less in real terms than it was in 1950; it is less in real terms than it was in 1960 and it is less in real terms than it was in 1970. Before the Budget, the price of petrol in the United Kingdom was the lowest in the European Community, with the exception of Germany. After the increase now made, the United Kingdom price will be broadly in line with the rest of the Community, with only Germany and the Netherlands significantly lower.
It is perfectly true that derv prices are higher in this country than they are on the Continent. This is a position which has existed for many years. But several of the European countries with low derv prices have rates of vehicle excise duty on diesel engine vehicles which are much higher than those charged in the United Kingdom. It is necessary, therefore, if one looks at derv to look also at the burden of the vehicle duties.
May I turn from that to the question of the impact of the increase in the tax on the rural community? We, of course, all sympathise with the points made by my noble friend Lord de Clifford. We realise the great problems that many people in rural areas face. But I do not think that we should blame all of those on to the motor-car or on to petrol.
May I say in passing that, while it is true that in rural areas people are particularly dependent upon the motor-car, the same is increasingly so in other parts of
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the country as well. There are currently about 14½ million private motor-cars on the road, and another 1½ million motor-bicycles and three-wheeled vehicles, making a total of 16 million. The number of households at the last count was, in fact, about 18½ million. So that, even allowing for the fact that some people have more than one motor-car, most households have access to a motor-car, whether they are living in town or in the country.
It is true, of course, as my noble friend has said, and as, indeed, other noble Lords have said, that the rural driver tends to cover a somewhat higher mileage, but not, I may say, dramatically so. For example, one recent study put the higher mileage at about 8 per cent. Very largely, this higher mileage is offset by a lower petrol consumption, and there is no conclusive evidence that the actual user of petrol, in terms of gallons, is significantly higher in rural areas than it is in the towns—
Lord Underhill: My Lords, will the noble Lord kindly give way? The important question is not whether there is access to a car in the towns, but the dependence upon it. Whereas in the towns there is usually alternative transport, in rural areas there is not.
Lord Cockfield: My Lords, I am aware of the point that the noble Lord makes. What is important is the extent to which the vehicles are used and the quantity of petrol that they burn, because this is what determines the amount of tax which is paid. Whether or not there is public transport, there is very extensive use of private motor-cars by people commuting into the large towns. In fact, in many ways the people who probably cover the highest mileage of all are those who live in the country and work in the towns. There are one or two misconceptions on this that I should like to clear up. The first one is this.
Tractors and other agricultural machinery do in fact use gas oil which is charged at only 3½ pence per gallon, and the duty on gas oil has not been increased in this Budget. The same, broadly, is true of fishing vessels. Most fishing boats get full relief from the duty and in most instances they would use gas oil rather than derv. There is also an arrangement under which stage buses are given relief in respect of the duty on either the petrol or the derv that they use. This is done by way of fuel duty grant from the Department of Transport. This is the same as the duty itself and it has been increased in line with the duty. Therefore, so far as public transport by way of stage bus services in the rural areas is concerned, they are completely protected from the increase in the duty. In the case of the railways also, diesel cars use gas oil which pays duty again only at 3½ pence per gallon. The suggestion which was made by the noble Lord, Lord Davies of Leek, that glasshouses are heated with petrol or derv is a new one to me. So far as I know, they use neither of these fuels. They are not therefore affected by the increase in duty which is the subject of the Question asked by the noble Lord, Lord Underhill.
May I now turn to the question of industry. The impact on industry should not be exaggerated. As I have said, the increase in the price of petrol, for example, is much in line with the increase which has occurred in prices generally and the increase in derv will add a

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comparatively modest amount both to transport costs and to total business costs. I think perhaps it is only fair that I should remind noble Lords opposite that under the Labour Government, derv was charged at a higher rate of duty than was petrol. We abolished that differential last year, with the result that derv is now charged only at the same rate of duty as is petrol.
There is a further point of importance: that a business is entitled to treat the VAT element in the cost of either its petrol or its derv as a deduction against its output tax, and this is equivalent to a relief which reduces the figure to no less than 17·4p per gallon. We do of course realise that these increased duties will impose a burden on industry. There is no escape from that. At the same time, however, they form part and parcel of a budget which gives substantial relief to industry generally. This relief amounts, in a full year, to somewhat over £650 million. The most important item is the new stock relief which will give industry a benefit in relation to its 1981 profits of no less than £450 million. There is a whole series of new enterprise reliefs in my right honourable friend's Budget which will give relief amounting to £89 million in a full year. The special help which is now being given with fuel costs will give a further benefit of £120 million a year to industry. But the most important effect of all, so far as industry is concerned, is the reduction in minimum lending rate which the Budget has made possible. MLR has been reduced by two percentage points from 14 per cent. to 12 per cent. It now stands very significantly below the peak of 17 per cent. which was reached in the autumn of 1979, and as economic circumstances permit it is our intention to reduce rates of interest further. That is as circumstances permit.
The important point about this Budget is that it has paved the way for a progressive and continuing reduction in the rate of inflation. It has paved the way in the medium term for lower rates of interest. Both those matters are of substantial benefit to industry. An immediate price has to be paid in terms of increased taxation, but in the long run that price will be a price well worth paying.
I am grateful to the noble Lord for tabling his Question. It has enabled me to explain the background which has necessitated the increase in these duties, to put the matter into much better perspective and, above all, to indicate that the Budget offers real hope for the future by way of a lower rate of inflation and, in the medium term, lower rates of interest.