Lords Sitting of 26 March 1981

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

Widows' Pensions and Income Tax
Lady Saltoun: 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 have any plans to cease aggregating widows' pensions with their earnings for tax purposes.
The Minister of State, Treasury (Lord Cockfield): My Lords, widows' pensions, like retirement pensions, are a form of income and liable to tax. They have therefore to be taken into account as part of total income for tax purposes. We have no plans to change this.
Lady Saltoun: My Lords, are the Government aware that the present situation puts widows in a much worse position than working wives whose need is usually less great, and that, where they have children, they are often forced on to social security, which is humiliating to them and expensive to administer?
Lord Cockfield: My Lords, I think we are all aware of the problems that widows face. Last year my right honourable friend the Chancellor of the Exchequer introduced a new allowance in the year of bereavement. Where there are young children in the family the widow receives the equivalent of the full married allowance, and of course when she reaches the age of 65 she receives the age allowance, which is higher than the standard single allowance. So far as the comparison with working wives is concerned, they both pay the same amount of tax on the same total income.
Lord Banks: My Lords, can the noble Lord say whether the Government are making any progress regarding the introduction of a tax credit scheme under which all benefits, including widows' pensions, would be tax free credits?
Lord Cockfield: If I may say so, my Lords, that goes rather outside the scope of the present Question. The position, however, is that in present circumstances a tax credit scheme would cost a very large sum of money indeed.
Lord Jacques: My Lords, is the Minister aware that if there was any inclination on the part of the Government to improve the income of widows it would be best done by increasing the amount paid rather than giving it free of taxation?
Lord Cockfield: My Lords, I am aware of the fact that there is a wide divergence of view on this and indeed on other subjects.
Baroness Fisher of Rednal: My Lords, is the noble Lord the Minister aware that there is grave disquiet among widows who are not earning and have no other income apart from savings, and who now will have to pay tax on widows' allowances when they start receiving that little bit extra which was given to them in the last Budget?
Lord Cockfield: My Lords, a widow who receives the basic widow's pension only and has no other income will not in fact be charged to tax. This is because of the assessing tolerances operated by the Inland Revenue. They do not make an assessment if the amount of tax at stake is less than £30 and this in fact covers the amount by which the basic pension exceeds the existing level of personal allowance. Of course, if there is income over and above the basic pension, that is a different matter.
Baroness Fisher of Rednal: My Lords, may I ask the noble Lord to spell that out in very clear English so that the widows themselves understand the position quite clearly?—because at the present moment that is not what they are given to understand at the tax offices.
Lord Cockfield: My Lords, the position was spelt out very clearly in the debates in another place, and I think it is in fact in order to refer to speeches made by Ministers in another place because they represent declarations of Government policy or views. I think that what I said myself was in fact perfectly clear.
Lord Banks: My Lords, can the noble Lord say how much earnings-related pension a widow would have to receive before she would pay tax?
Lord Cockfield: My Lords, the amount of earnings-related pension is, of course, a different matter. If a widow receives a earnings-related supplement over and above the basic pension she is in no different position from that of a widow who has income over and above the basic pension. The amount by which the assessing tolerance exceeds the difference between the basic pension and the single allowance is, I believe, about £13.
Baroness Jeger: My Lords, can the noble Lord the Minister have some consultation with the local offices to ensure that women are fully informed about this position, because I hope he will take it from me that not every widow in the country has heard of an assessing tolerance?
Lord Cockfield: My Lords, the question of assessing tolerances was explained in great detail by Mr. Denis Healey when he was Chancellor of the Exchequer in 1976, when this particular problem arose; it is not therefore a new assessment. But I note what the noble Baroness says and we will certainly ensure that the position is understood in local tax offices.
Lady Saltoun: My Lords, will the Government keep the plight of widows in mind and review the situation as regularly as possible?
Lord Cockfield: My Lords, the Government keep all these matters under regular review. I would not like to hold out any particular hope to the noble Lady. There are a large number of groups who are disadvantaged and on whose behalf representations are made.

Airline Tickets: Wholesaling System
3.8 p.m.
Baroness Burton of Coventry: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what progress has been made in their consideration of a wholesaling system for buying and reselling cheaply unused airline seats; and whether they will make a statement.
The Parliamentary Under-Secretary of State, Department of Trade (Lord Trefgarne): My Lords, matters relating to the method of sale of airline tickets are for discussion in the first place between the airlines and their agents.
Baroness Burton of Coventry: My Lords, why do we never make any progress on this matter? May I ask the Minister whether he is so secretive because he is doing nothing about it, or is he so secretive because he wishes to keep what he is doing away from the public eye? Would he not agree that really it would be for the benefit of everybody—travellers, agents and airlines—if these tickets were available to everybody?
Lord Trefgarne: My Lords, as the noble Baroness knows, and as I have told her and other Members of your Lordships' House on many occasions, the main thrust of our policy on this matter is to achieve a régime of lower air fares available to everybody. We have not been without some success, although I hasten to add that we have not achieved as much as I would have wished at this stage; but in this context I am pleased to be able to report that, for example, as recently as yesterday the Netherlands Government have agreed to the new British Caledonian mini-prix arrangement for which we have been asking for some time.
Baroness Burton of Coventry: Yes, my Lords. But that is not really what I am on. Could the Minister please let us know whether it is true that various organisations have been having discussions, with either the Government or highly placed civil servants, on the possibility of doing something about making these tickets more available to all agents?
Lord Trefgarne: Yes, indeed, my Lords. The proposal which is referred to in the noble Baroness's Question has been put to me. But I have explained to those who have been to see me, in exactly the same
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terms as I have said to the noble Baroness, that it is a matter, in the first place, for the airlines themselves.
Lord Derwent: My Lords, does my noble friend realise that, judging by previous Ministers, he will eventually have to give way to the noble Baroness?
Lord Trefgarne: My Lords, what is sometimes misunderstood in this matter is that the ultimate object which the noble Baroness seeks is exactly the same one as I seek. The difference between us is the way by which we get there.
Baroness Elliot of Harwood: My Lords, may I also support the noble Baroness? When the noble Lord discusses these matters with people, would he impress upon them the fact that this would be an extremely popular thing to do? To do away with the cheating—which is what is going on now—which we all know about, is something which would redound enormously to the credit of this Government and the Minister, if he could possibly bring it about.
Lord Trefgarne: That, really, is no doubt so, my Lords. But I have no power to direct the airlines in these matters.
Baroness Burton of Coventry: My Lords, may I just ask he Minister this question, following on what he said: He said that it was up to the airlines to sort out this matter. Am I to understand, then, that it would be for IATA to make a recommendation that these tickets should be available to all agents?
Lord Trefgarne: My Lords, if IATA made a recommendation of that nature, it would, I think, be for the Civil Aviation Authority to consider it, and I would then endorse their approval, or disapproval, as the case may be.

Tidworth: Demolition of Army Quarters
3.12 p.m.
Lord Moyne: 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 there is a lack of housing accommodation in the Tidworth area; and if so, whether they will reconsider their decision to demolish 400 modernised Army houses there; and whether they will confirm the report in The Times that there is a shortage of space on Salisbury Plain for tank training which can only be met on the site of these houses.
The Minister of State, Ministry of Defence (Viscount Trenchard): My Lords, these old Army quarters are currently surplus to MOD requirements. They cannot be sold, because they are situated within Army barracks adjacent to a training area. Up to 100 of the quarters will need to be demolished shortly, as the site is required for buildings to meet our immediate operational needs. We are still exploring any appropriate possibilities for the remainder. We are in touch with the Kennet

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District Council as to whether there is demand for houses in this particular part of their area and we are prepared to discuss whether short-term civilian occupation of some of them is practical.
Lord Moyne: My Lords, while thanking the noble Viscount for his reply, and also for his assurance that the question is under consideration with the Kennet District Council, would it surprise him to know that there are 250 applicants in the Tidworth area, of which the council believe—this is only a guess on their part—that at least 50 would be prepared to take up these houses? Would it also surprise him to know that the Test Valley Borough Council estimate that they could find tenants for 30 or 40? Has the noble Viscount considered the possibility of selling some of the houses to first-time buyers—since they front on to a public road—and, conceivably, making shorter or longer leases of the houses?
Viscount Trenchard: My Lords, I think I can say to my noble friend that neither of those two statements surprises either me or the Ministry of Defence, because we are, in fact, in touch with both councils. My noble friend spoke of their estimate or guess of the numbers who might be interested in living in this area, but that still has to be confirmed. As regards my noble friend's question as to whether we would be prepared to sell, we are not able to do that at the moment, until we have the longer term plans for the reorganisation of Tidworth a lot clearer than we have them at the present time. The same applies, of course, to long leases. But, as I have said, we are prepared to look at and to discuss with the local authorities what more can be done in the short-term.
Baroness Birk: My Lords, at a time when the housing lists are getting longer and longer, and when there has been such a complete cutback in house building and in the construction industry, would the noble Viscount not agree that to demolish any houses which would be suitable for civilians, or anybody else, to live in, would be absolutely awful?
Viscount Trenchard: My Lords, the noble Baroness's starting point is exactly the same as mine when I first heard of this matter. There is a requirement in the short-term, for really urgent operational reasons, to demolish the 100 of which I have spoken. We are dealing with approximately 400 houses. The noble Baroness has just heard my noble friend describe the number of possible, tentative inquiries from people who live in this district, which cover only a very small proportion of the houses which are not under a demolition order at the present time, and which may be reprieved on a permanent basis, in so far as the local need for housing can be reconciled with operational requirements. The Government are trying to ensure the maximum degree of reconciliation, so that we do not leave unhoused families who would accept accommodation in this area.
Lord Avebury: My Lords, is the Minister aware that there cannot be any reason of security for refusing to sell these houses to the local borough council,
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since the military have recently agreed that properties in Lady Godley Close, which is also within the base area, should be available for sale to their tenants? Is the Minister further aware that the Army families, who are catered for by this base, are occupying properties belonging to the local authority to the extent of about 100 dwellings; that the Army have recently asked the local authorities to provide them with further dwellings out of their limited stock; and that, if these Army families were to move back into properties which they already own, this would free the equivalent of something like 100 dwellings for allocation to the 2,000 families who are on the waiting list of the Test Valley Borough Council?
Viscount Trenchard: My Lords, it is not just a question of security, though the operational requirements of every barracks are different. My right honourable friend the Under-Secretary of State for the Army has himself visited this area and looked at the practical problems of housing civilians within a barracks, or a barracks on one side and a training area on the other—a training area used by night as well as by day. So that there really are major problems. As regards the noble Lord's point about other council houses being occupied by current members of the forces, I should like to look into that a little further. My information is that, while the local councils have housed retired members of the forces, and are housing a number of widows or deserted wives and families, they have not, in fact, used council accommodation for active serving members. But I should just like to check that in relation to the Test Valley area. I have checked it in relation to the Kennet.
Lord Avebury: My Lords, may I ask the Minister to examine the minutes of the Test Valley Borough Council Housing Services Committee of 4th November 1980, where it is stated
"The M.O.D. will therefore continue to look to your Council (together with the Kennet District Council) to maintain an adequate supply of accommodation for renting to M.O.D. employees in the Tidworth area"?
If the Ministry of Defence did not make these demands on local authorities, would it not free accommodation for local residents?
Viscount Eccles: My Lords, further to that question, may I say that I happen to live very close to Tidworth. I know that the Ministry of Defence also own 30 houses in Andover which are occupied by military personnel and that the Andover council would very much like those 30 houses for housing their own people. Why could not an exchange be made?
Viscount Trenchard: My Lords, I thank both noble Lords for their supplementary information on the details of the Tidworth area. I will look into the details which they have raised. We remain, I think, in the situation that for the vast bulk of houses of this kind in this area—they are old houses and fairly small—we have not got at the moment a demand for even one-half.
Lord Bruce of Donington: My Lords, does the noble Viscount propose to reply to the second part of the

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Question put by his noble friend which, so far as one can see, relates specifically to tank training and is not confined within the broad, general term "operational reasons", to which the noble Viscount referred? Would he refer specifically to that part of the Question which deals with tank training?
Viscount Trenchard: My Lords, as I have tried to explain, the barracks and the houses are on one side, while on the other side there is the training area which is used both night and day for mixed training, including tanks and infantry carrying vehicles. It is a mixed force barracks. Both the vehicles and the people proceed from the barracks across to the training area and back again. One of the reasons why the demand for accommodation may be a bit limited is the noise that this creates, including at night.

Dispersal Prisons and Secure Cell Transfers
3.22 p.m.
Lord Whaddon: 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 cause investigations to be made to discover why 34 prisoners were transferred from dispersal prisons to special secure cells in local prisons during 1980 for more than 28 days, who was responsible, and what action is proposed to ensure that it does not happen again.
The Parliamentary Under-Secretary of State, Home Office (Lord Belstead): My Lords, a small number of cells in local prisons are made available to the governor of each dispersal prison for the transfer of serious troublemakers for up to 28 days. This provides a brief cooling-off period for prisoners whose actual or likely disruptive behaviour threatens to cause difficulties and for whom segregation in the dispersal prison is inappropriate. In most cases a prisoner returns to the original prison within 28 days. In some cases, however, it is decided that the prisoners should be transferred permanently elsewhere, usually to another dispersal prison. Wherever possible, this is done within 28 days, but sometimes the prisoner is held for a further limited period in the local prison because of the difficulties which arise in finding a new place.
The authority for holding these prisoners in local prisons for longer than 28 days is given either by the prison department headquarters or the regional director, according to the security category of the prisoner concerned.
Lord Whaddon: My Lords, may I ask the noble Lord whether or not these special secure cells are equivalent to solitary confinement? Is it not most regrettable that prisoners should be held for long periods not only in those conditions but also losing a good many privileges, such as open visits from visitors? Is it not a fact that in 1974, 14 days were supposed to be the limit? Later this was increased to 28 days. Will the Government look most urgently into the possibility
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of reducing the periods during which prisoners are exposed to these conditions?
Lord Belstead: My Lords, this is not equivalent to solitary confinement. While in a local prison, men from dispersal prisons will be treated in the same way as any other prisoner of the same security category held under Rule 43 in that prison. In particular, they will do the same work and receive the same pay on the same basis as their fellows, and they will receive the same privileges as any other Rule 43 prisoner who is segregated in the interests of good order and discipline.
The noble Lord asked me whether something could be done to reduce the length of time when such prisoners are transferred. I am afraid that I do not have the details of what the situation was in 1974. It is not always possible to avoid some delay in transfer, but I assure the noble Lord that every effort is made to ensure that this is kept to a minimum.
Lord Leatherland: My Lords, the Minister said that certain prisoners are given this treatment because of their actual or likely behaviour. How does he estimate what their likely behaviour is likely to be?
Lord Belstead: My Lords, I think that when you are dealing with prisoners who are in security category A or security category B it is the duty of the governor of the establishment to take a practical forward look at what the situation is going to be in his particular establishment. You have to look at what the effect of the behaviour of a prisoner in a particular situation may be upon the establishment as a whole.
Lord Leatherland: My Lords, how do you know what his behaviour may be until he behaves in that manner?
Lord Belstead: My Lords, you do it by discharging your duty as a governor in the prison service.

The Easter Recess
Lord Denham: My Lords, at a convenient moment after 3.30 this afternoon my noble and learned friend the Lord Chancellor will, with the leave of the House, repeat a Statement which is to be made in another place on security.
It may also be for the convenience of your Lordships if I announce that subject to the progress of business, this House will adjourn for the Easter Recess on Wednesday, 15th April and return on Monday, 27th April.

Planning Blight (Compensation) (Northern Ireland) Order 1981
3.28 p.m.
The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Elton): My Lords, I beg to move that the Planning Blight (Compensation) (Northern Ireland) Order 1981, a draft of which was laid before this House on 16th February 1981, be approved.

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This order consolidates the law relating to planning blight. It was considered by the Joint Committee on Consolidation Bills on 11th March and the committee was satisfied that it is a purely consolidating measure. It therefore makes no changes of substance in the existing law, but brings it together in one order. I beg to move.
Moved, That the draft order laid before the House on 16th February be approved.—(Lord Elton.)
Lord Blease: My Lords, I wish to thank the noble Lord for his explanation of the order. We note that the draft Planning Blight (Compensation) (Northern Ireland) Order, together with the next item on the Order Paper, the draft Public Order (Northern Ireland) Order, was considered by the Joint Committee on Consolidation Bills and we have also noted their report. To expedite business, may I indicate that we on this side of the House support both this order and the next item of business on the Order Paper.
On Question, Motion agreed to.

Public Order (Northern Ireland) Order 1981
3.29 p.m.
Lord Elton: My Lords, beg to move that the Public Order (Northern Ireland) Order 1981, a draft of which was laid before this House on 13th January 1981, be approved.
This order consolidates the law relating to public order. It was considered by the Joint Committee on Consolidation Bills on 11th March and the committee was satisfied that it was a measure of pure consolidation. It makes no changes of substance in the existing law, but brings it together in one order. I beg to move.
Moved, That the draft order laid before the House on 13th January be approved.—(Lord Elton.)
On Question, Motion agreed to.

Supplementary Benefit (Requirements) Amendment Regulations 1981
3.30 p.m.
Lord Cullen of Ashbourne: My Lords, I beg to move that the Supplementary Benefit (Requirements) Regulations 1981, laid before the House on 3rd March, be approved. In her recent announcement of the general benefit uprating my noble friend Lady Young was not able to mention one minor item, the repairs and insurance allowance payable to certain householders on supplementary benefit. It is my duty now to invite your Lordships to approve the statutory instrument laid before your Lordships' House, which increases the rate of the repairs and insurance allowance. The repairs and insurance allowance is a weekly addition to supplementary benefit for owner-occupiers and others who have responsibility for repairs to, and insurance of, the structure of their home. It is intended to meet the cost of routine minor repairs to the home, and of insurance of the structure, and is currently at the rate of £1.25 a week. This provision is at
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Regulation 17 of the Supplementary Benefit (Requirements) Regulations 1980. These amendments regulations simply substitute the new rate of £1.50 with effect from 1st April 1981.
Your Lordships will appreciate that the repairs and insurance allowance is a fixed weekly sum. An underlying principle of the supplementary benefit scheme is that reasonable housing costs are met in full, but we follow the former Supplementary Benefits Commission in considering that it is just not sensible rigorously to investigate the detailed expenditure of every claimant entitled to this allowance. Your Lordships will take note, however, that Regulation 17 provides for this sum to be exceeded where this is reasonable, having regard to any special circumstances—for example, a high fire risk—which justify higher than average expenditure.
We have decided upon a proportionately fairly generous increase this year because we are conscious of the modest rate of the allowance, and of the considerable rise in the costs of maintenance and insurance of the home. The cost of this uprating will be approximately £7 million in a full year.
I do not want to take up too much time with this minor, though I hope welcome, item of business. I should nevertheless like to give your Lordships a brief explanation of the reason for its being brought forward at this time. This statutory instrument marks the transition from the old scheme to the new for this particular allowance. Noble Lords will be aware that this is the first time they have been asked to deal with supplementary benefit upratings under the new regulations. Hitherto the former Supplementary Benefits Commission introduced new rates for repairs and insurance under its discretionary powers. In future we will not ask your Lordships to deal with this item on its own.
Increases in the repairs and insurance allowance have always been implemented in April, rather than with the other benefit increases. This is simply a matter of operational efficiency. Other housing costs—rates and water rates—go up at that time of year, and it saves a great deal of staff time in our local offices if all three can be dealt with together on the same housing costs assessment form. We intend to keep to this arrangement, hence the 1st April operative date of the regulations now before your Lordships. However, in future we shall include the repairs and insurance allowance in the main uprating regulations, for implementation in April of the following year.
The regulations now before your Lordships therefore allow us to get into phase with the new uprating cycle since we did not have that opportunity at the time of the uprating regulations last year. Once we have established the April 1981 rate at £1.50, we shall be able to include provision for the April 1982 rate in this year's uprating regulations which will be laid before your Lordships in due course. The increase in the allowance then will be in line with my right honourable friend's estimate of the rise in prices. My Lords, I commend these regulations to the House. I beg to move.
Moved, That the draft regulations laid before the House on 3rd March be approved.—(Lord Cullen of Ashbourne).
Lord Wells-Pestell: My Lords, I am sure the House is grateful to the noble Lord for explaining this matter in detail. I think it is important that the House should know what it is all about. My only comment is that of course an increase is far better than a decrease but I think we would all recognise that £1.50 a week, which amounts to something like £78 a year, is not in itself a very large sum to meet insurance on a home or a house and to cover repairs. When the noble Lord said that in exceptional circumstances this amount could be increased that was some comfort, but I am sure the Government will realise that in view of the cost of repairs these days it is difficult to get anything done without spending quite a considerable sum of money. Apart from that, I have no other comment to make.
Lord Banks: My Lords, I, too, should like to thank the noble Lord, Lord Cullen of Ashbourne, for his very clear exposition of the purpose of this order. As he explained, in the past this would not have come before your Lordships but now that it is subject to the requirements regulations it does come before us. He also explained that in future we should not have to deal with this comparatively minor but important item on its own. I was intending to ask the noble Lord why it was that it was to take effect in April, and to suggest to him that it might be more convenient to have all changes in November, but he has explained that point and I accept what he said. I am very happy to support the approval of the order.
On Question, Motion agreed to.

Security: Prime Minister's Statement
3.36 p.m.
The Lord Chancellor (Lord Hailsham of Saint Marylebone): My Lords, I understand that this would be a convenient moment for me, with permission, to repeat a Statement which is being made in another place by my right honourable friend the Prime Minister. My Lords, the Statement is as follows:
"I will make a Statement about the security implications of the book published today which purports to give a detailed account of the investigations into the penetration of the security service and other parts of the public service which were undertaken following the defection of Burgess and Maclean in 1951.
"The events into which those investigations were inquiring began well over 40 years ago. Many of those named or implicated in this book as having been the subject of investigation have died. Others have long since retired. None of them is still in the public service.
"The extent of penetration was thoroughly investigated after the defection of Burgess and Maclean, as indeed the author of this book makes clear. The book contains no information of security significance which is new to the security authorities. And some of the material is inaccurate or distorted. All the cases and individuals referred to have been the subject of long and thorough investigation.
"The investigations into the possibilities of past penetration have inevitably extended widely. They
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have covered not only those suspected of being guilty, but also all those who could conceivably fit the often inconclusive leads available. The fact that somebody has been the subject of investigation does not necessarily or even generally mean that he has been positively suspected: many people have had to be investigated simply in order to eliminate them from the inquiry.
"The results of the investigations into Philby and Blunt are now well known. There were good reasons for suspecting a few others, but as it was not possible to secure evidence on which charges could be founded, they were required to resign or were moved to work where they had no access to classified information. Many others were eliminated from suspicion.
"Apart from the main allegation, which I will come to, I do not propose to comment on the other allegations and insinuations in this book. Nor can I say which allegations are unsubstantiated or untrue—as some certainly are—since by doing so I should implicitly be indicating those which were suspected of having a degree of substance.
"I must, however, comment upon the grave allegation which constitutes the main theme of the book, that the late Sir Roger Hollis, Director General of the Security Service from 1956 to 1965, was an agent of the Russian intelligence service.
"The case for investigating Sir Roger Hollis was based on certain leads which suggested, but did not prove, that there had been a Russian intelligence service agent at a relatively senior level in British counter-intelligence in the last years of the war. None of these leads identified Sir Roger Hollis, or pointed specifically or solely in his direction; each of them could also be taken as pointing to Philby or Blunt. But he was among those that fitted some of them, and he was therefore investigated.
"The investigation took place after Sir Roger Hollis's retirement from the security service. It did not conclusively prove his innocence; indeed it is very often impossible to prove innocence; that is why in our law the burden of proof is placed upon those who seek to establish guilt and not on those who defend innocence. But no evidence was found that incriminated him, and the conclusion reached at the end of the investigation was that he had not been an agent of the Russian intelligence service.
"This view was challenged, however, by a very few of those concerned, and in July 1974, Lord Trend, the former Secretary of the Cabinet, was asked to review in detail the investigations that had taken place into the case of Sir Roger Hollis, and to say whether they had been done in a proper and thorough manner, and whether in his view the conclusions reached were justified. He examined the files and records and he discussed the case with many of those concerned, including two people who considered that the investigation should be reopened.
"Mr. Pincher's account of Lord Trend's conclusions is wrong. The book asserts that Lord Trend 'concluded that there was a strong prima facie case that MI5 had been deeply penetrated over many years by someone who was not Blunt', and that he
'named Hollis as the likeliest suspect'.
Lord Trend said neither of those things, and nothing

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resembling them. He reviewed the investigations of the case, and found that they had been carried out exhaustively and objectively. He was satisfied that nothing had been covered up. He agreed that none of the relevant leads identified Sir Roger Hollis as an agent of the Russian intelligence service, and that each of them could be explained by reference to Philby or Blunt. Lord Trend did not refer, as the book says he did, to
'the possibility that Hollis might have recruited unidentified Soviet agents into MI5'.
Again, he said no such thing.
"Lord Trend, with whom I have discussed the matter, agreed with those who, although it was impossible to prove the negative, concluded that Sir Roger Hollis had not been an agent of the Russian intelligence service.
"I turn next to the arrangements for guarding against penetration now and in the future.
"All departments and agencies of Government especially those concerned with foreign and defence policy and with national security, are targets for penetration by hostile intelligence services. The security service, with its responsibilities for countering espionage and subversion, is a particularly attractive target. Recent security successes (like the expulsion of members of the Russian intelligence service from this country in 1971) would hardly have been achieved, if the security service was penetrated. The security service exercises constant vigilance not only against the risk of current penetration but also against the possibility of hitherto undetected past penetration which might have continuing implications. But, however great our confidence in the integrity and dedication of those now serving in the security service, we need to make sure that the arrangements for guarding against penetration are as good as they possibly can be, both in this area and throughout the public service.
"Existing security procedures were introduced during the years following the Second World War. Burgess, Maclean, Philby and Blunt were all recruited by the Russian intelligence service before the Second World War, and came into the public service either before or during the war, well before existing security procedures were introduced. It was in 1948 that the then Prime Minister announced the Government's intention to bar communists and fascists and their associates from employment in the public service in connection with work the nature of which was vital to the security of the state. This led to the introduction of what came to be know as the "purge procedure". In 1952 the positive vetting procedure was instituted, with the object of establishing the integrity of civil servants employed on exceptionally secret work. In 1956 it was publicly declared that character defects, as distinct from communist or fascist sympathies or associations, might affect a civil servant's posting or promotion. In 1961 security procedures and practices in the public service were reviewed by an independent committee under the chairmanship of the late Lord Radcliffe. The committee's report, published in 1962, contained an account of those procedures, and
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made various recommendations for modifying them, which the Government accepted. These procedures, as modified in 1962, are still in operation today.
"These arrangements have over the years substantially reduced the vulnerability of the public service to the threat of penetration, and have served the interests of national security well. But it is 20 years since they were last subject to independent review. In that time the techniques of penetration and the nature of the risks may have changed. We need to make sure that our protective security procedures have developed to take account of those changes.
"I have therefore decided, after consultation with the right honourable gentleman the Leader of the Opposition, to ask the Security Commission:
'To review the security procedures and practices currently followed in the public service and to consider what, if any, changes are required.'
"These terms of reference will enable the Security Commission to review, and to make recommendations as appropriate, on the arrangements and procedures used in all parts of the public service for the purposes of safeguarding information and activities involving national security against penetration by hostile intelligence services, and of excluding from appointments which give access to highly classified information both those with allegiances which they put above loyalty to their country, and those who may for whatever reason be vulnerable to attempts to undermine their loyalty and extort information by pressure or blackmail.
"There are difficult balances to be struck here between the need to protect national security, the nature and cost of the measures required to do so effectively, the need for efficiency and economy in the public service, and the individual rights of members of the public service to personal freedom and privacy. The Security Commission will be able to consider how these balances ought to be struck in the circumstances of the present time, as they conduct their review and prepare their recommendations. It will be my intention to make their findings known to the House in due course, to the extent that it is consistent with national security to do so.
"Mr. Speaker, in conclusion I should like to emphasise once again that this Statement arises out of a book which deals with investigations of matters and events which occurred many years ago. My concern is with the present and with the future. That is why I am asking the Security Commission to undertake the review which I have described."
My Lords, that concludes my right honourable friend's Statement to the House of Commons.
3.50 p.m.
Lord Elwyn-Jones: My Lords, I know that the whole House will be most grateful to the noble and learned Lord the Lord Chancellor for reading out this extremely important Statement. A great deal of public concern and anxiety has arisen out of the publication of a certain book which has been publicised widely throughout the world and more widely through the media than any book in recent times, and to learn

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from this Statement that much of the main causes of public anxiety seems to be ill-founded is, indeed, a deeply disturbing state of affairs.
The law of this country does not enable the dead to sue for libel. I have always thought that there ought to be a right at least to get a declaration by the relatives to enable any defamation to be nailed. That cannot be done. So those who write about the reputation of the dead can do so more or less with immunity. Here we have a case where the matters alleged against Sir Roger Hollis have apparently been investigated on several occasions and most recently by the noble Lord, Lord Trend, the former Secretary of the Cabinet. It is almost shaming to hear it said that:
"The book asserts that Lord Trend 'concluded that there was a strong prima facie case that MI5 had been deeply penetrated over many years by someone who was not Blunt', and that he 'named Hollis as the likeliest suspect'",
when the Statement says, after inquiry, and no doubt discussion with Lord Trend, that:
"Lord Trend said neither of those things, and nothing resembling them".
It is shaming, my Lords. The Statement says:
"He was satisfied that nothing had been covered up. He agreed that none of the relevant leads identified Sir Roger Hollis as an agent of the Russian Intelligence Service, and that each of them could be explained by reference to Philby or Blunt. Lord Trend did not refer, as the book says he did, to 'the possibility that Hollis might have recruited unidentified Soviet agents into MI5'. Again, he said no such thing."
The Statement then continues:
"Lord Trend, with whom I have discussed the matter, agreed with those who, although it was impossible to prove the negative, concluded that Sir Roger Hollis had not been an agent of the Russian Intelligence Service."
That, I suppose is the most that can be done now in regard to the reputation of Sir Roger Hollis. There cannot be a positive acquittal because he is dead and cannot be tried and brought to judgment. But the House will read this Statement with care and I have little doubt that at any rate it will give some comfort to the family and relatives of this man, who must have suffered agony in recent days.
With regard to the proposal of the Government and the Prime Minister—which has already been put to my noble friend the Leader of the Opposition and with which he has entirely agreed—that there should now be a further inquiry into the efficiency of our security services, I should like to say that we on this side of the House, and I am sure the whole House, will be in full agreement. It is clearly essential that we should ensure that our safeguards against Soviet or any other penetration of our security and intelligence services should be as effective as possible.
If I may say so, the note that was struck towards the end of the Statement seemed to me to be impressive and valuable. As the Statement says:
"There are difficult balances to be struck here between the need to protect national security, the nature and cost of the measures required to do so effectively, the need for efficiency and economy in the public service, and the individual rights of members of the public service to personal freedom and privacy."
I am sure that that sane and civilised approach to the problem will be welcomed. We are, indeed, most grateful that a Statement in such depth—somewhat unusual depth in cases of this kind—has been made by the Prime Minister and made available to the House.
Lord Gladwyn: My Lords, we, too, would like to thank the noble and learned Lord the Lord Chancellor for repeating this very important Statement, which, on the face of it, appears to discredit completely the insinuations regarding existing security made in the recent book by Mr. Chapman Pincher. That is most satisfactory. On behalf of my colleagues, I should also like to share the indignation of the noble and learned Lord, Lord Elwyn-Jones, at what has happened and to express our deepest sympathy with the family and relations of the late Sir Roger Hollis. I understand from the Statement that the Government have no reason whatever to doubt Sir Roger's loyalty, but, if the faintest doubt should still persist on that score, then I imagine that it would be only prudent—if it has not been done already—to re-vet positively those members of the service who were recruited by him or when he was in a position to influence recruitment. There would be no harm in doing that.
We think in any case that it is excellent that the Government have decided to instruct the Security Commission to hold another review on the terms of reference suggested, which seem to me to be admirable. I imagine that the inquiry will be conducted in private and it is satisfactory that Parliament will be informed of its results from time to time.
Perhaps I may add, as one who long, long ago had some knowledge of the secret services, that the trouble often is that such services, if they are, indeed, of the cloak and dagger type—that is to say, clandestine—tend inevitably to attract what might be called cloak and dagger characters who are perhaps unduly fascinated by unorthodox schemes such as double agents, double bluffs, deception, bribery and whatever; whereas, on the contrary, if such services are completely open and are conducted exactly like any other Government department, they may well be pretty useless, as, I am afraid, is evident from what happened to the CIA when it was, as it were, rendered inoperative as a result of disclosures over Vietnam. So perhaps we in this country shall do no harm if in the future we steer between this Scylla and this Charybdis.
Lord Home of the Hirsel: My Lords,—
The Lord Chancellor: My Lords, I shall of course answer my noble friend Lord Home of the Hirsel separately. I should like to thank both the noble and learned Lord on the Opposition Front Bench and the noble Lord, Lord Gladwyn, for what they have said. I agreed with my right honourable friend the Prime Minister, and I hope that the House will think that this was right, that I would stick pretty closely to the Statement in repeating it to your Lordships' House. However, I had the feeling very strongly that both the noble and learned Lord and the noble Lord were speaking, in a sense, for the whole House when they gave vent to the sentiments which they have expressed. I do not think that I can usefully add very much to what they have said. As regards the two suggestions made by the noble Lord, Lord Gladwyn, I shall gladly pass them on to the appropriate quarter.
Lord Home of the Hirsel: My Lords, the doubts thrown by Mr. Chapman Pincher on the loyalty of the head of the security service were, as my right

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honourable friend the Prime Minister said in her Statement, very grave and disquieting. They really are the more so now that we have learnt from the Statement that there were serious errors of fact in his judgment of Sir Roger Hollis. I join with the noble and learned Lord and the noble Lord, Lord Gladwyn, in hoping that this Statement will give some comfort to the relations of Sir Roger.
In her response to the book, I think that the Prime Minister struck the right balance between past, present and future. There never can be any cover-up of treachery and it is quite clear that there has been no such thing in this case. But perhaps it is reassuring that the highest officers in the service are not free from investigation and that a constant watch is kept on matters which concern the security of the country. On the other hand, an unrestrained witch-hunt by those who are careless of the facts can play straight into the hands of our potential enemies. I think that we know how closely our potential enemies watch these matters. The Prime Minister was quite right in asking the Security Commission to look at the organisation of these matters, and it is very important that this should be agreed between the Prime Minister and the Leader of the Opposition, because that is how we should handle these very grave matters.
The Lord Chancellor: My Lords, I am absolutely sure that the whole House would wish me to express my gratitude to my noble friend, who speaks from a position of unique authority and almost unique experience.
Lord Paget of Northampton: My Lords, I should like to ask the noble and learned Lord the Lord Chancellor one further question. We are not really concerned only with one man or one book. The practice of exploiting libels on the dead has become too common. Could not the criminal law of libel at least be examined to see whether any amendments are necessary in order to make criminal prosecution available against those who libel the dead?
The Lord Chancellor: My Lords, that is a question which has been ventilated from time to time. We all feel indignation against those who traduce those who can no longer answer for themselves; but I think that it raises very wide issues which had perhaps better not be explored too closely on this occasion, especially as I am not the normal spokesman for the Home Office, which is responsible for the criminal law.
Lord Shinwell: My Lords, I think that every Member of your Lordships' House must accept the opinion of the noble and learned Lord the Lord Chancellor that he stands by the Statement made by the Prime Minister, which he repeated in this House. We must accept that and not start an investigation of our own in your Lordships' House.
However, I should like to ask one or two questions which I believe are important. One emerges because of the question asked by my noble friend Lord Paget. It is much more than a question of what can be done about the libelling of the dead; in recent weeks there has been some libelling of those who are not yet dead.
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For example, references to the book have been made in the press and I recall one statement in which 20 Peers were involved, although I am ready to be corrected about that if I am wrong. I read that statement. It appears to me that we cannot allow that to pass because we shall look at our neighbours and they will look at us: that cannot be allowed.
In 1952 I was involved along with Lord Radcliffe and the late Selwyn Lloyd, who were members of the committee, in an investigation which was based on statements made by Mr. Chapman Pincher in the Express. After very close and meticulous investigation, we came to the conclusion that there was no substance in the complaints made, and we dismissed them. A Statement was made in another place, and that was the end of the matter. Is it not at all possible to do the following? If someone makes a statement, either direct or by implication, that a Member of your Lordships' House, or anyone in public life or even outside public life, is guilty in some form or another of disclosing secret information, has the noble and learned Lord the Lord Chancellor no authority to call that person to book and say, "Produce your evidence"? I do not think that we ought to allow the matter to lie completely at rest, but we should investigate so far as we possess authority to do so, and no more than that. I should like the opinion of the noble and learned Lord the Lord Chancellor.
The Lord Chancellor: My Lords, as regards individuals who are still alive, they are, of course, entitled to invoke the law of defamation either in England, or in Scotland (where I think that it is slightly different). Where it is not possible to identify the passage as referring to them and, therefore, they would not be able to invoke the law of defamation, of course, both Houses of Parliament have privileges of right and powers to enforce those privileges. This House has them, but of course it has been extremely slow—and probably wisely slow—to invoke them. I do not think that I can expand on that because it would perhaps be injudicious of me to attempt to do so.
Lord Boothby: My Lords, the House will be grateful to the noble and learned Lord for the Statement that he has made and also much relieved, because the history of the secret services of this country since the war has really been pretty deplorable. I should like to make one suggestion. Shortly after the first World War the then head of MI5, who was a friend of mine, said, "If you want to know how the Secret Service works you only have to read a book by a friend of yours, Sir Compton Mackenzie. It is called Water on the Brain, and every word of it is true". The only suggestion that I should like to make to the noble and learned Lord is that he should ensure that this inquiry which is set up reads the book. It will not only derive great enjoyment from it, but much interest. It is one of the most amusing as well as one of the truest books that Sir Compton ever wrote; and, since I have read it, I have never had any illusions about MI5 or MI6.
The Lord Chancellor: My Lords, I am much obliged to the noble Lord. I was aware of Compton Mackenzie's book. There is also another very well-known author who has written on the subject in the form of fiction.
Lord Beswick: My Lords, can the noble and learned Lord the Lord Chancellor give us any indication whether, in the course of the inquiries, the investigations and the reconsiderations that will take place, Mr. Chapman Pincher will be asked about the sources of information on which he based the statements in his book? Is it not a fact that he claims that he obtained his information from members of the secret service?
The Lord Chancellor: My Lords, I think that the noble Lord will see that the terms of reference of the investigation to which I have referred are:
"To review the security procedures and practices currently followed in the public service and to consider what, if any, changes are required".
I have no doubt that if the Security Commission wishes to interview any particular person, it will be able to do so.
Lord Hankey: My Lords, before we leave this question, would it be in order to ask the Government whether they have considered the light that this affair throws on Soviet policy towards this country? Would it not seem that the Soviets are doing their best to discredit the security services on both sides of the Atlantic? Have the Government considered the possible connection with the declared Communist, Mr. Phillip Agee, who has caused infinite trouble for the CIA on the other side of the Atlantic, and then came over here and caused very great embarrassment to Her Majesty's Government by writing a book about our secret services? The Government tried to get that book suppressed and lost the case in the courts, I believe. I say that subject to correction.
We have also seen a really disgraceful broadcast on BBC1 about MI5, MI6, and GCHQ. I believe that the material published in Philip Agee's book was more extensive still, but in my opinion that broadcast ought not to have been allowed to take place. I know that it was cut down in length at the request of the Ministries concerned, but in my opinion it should not have been allowed to take place and I should like to know what the Government think about this.
I should particularly like to ask the Government whether it is not clear that these security services are our principal protection against Soviet subversion; that this country is very high on the list of those which the Soviet Government wish to subvert, and that a great deal of material could be found to support that? Would the Government consider whether more effective measures ought now to be taken in view of the position of this country, to ensure that we can support these important security organisations in the work that they have to do?
The Lord Chancellor: My Lords, I am quite sure that many noble Lords will share some of the feelings of the noble Lord who has just spoken from the Cross-Benches. I think that our greatest protection is a robust determination to defend our own values and our own services from false attacks wherever they are made and however they may be motivated. But we have to balance the needs of a free society against the needs to protect its values. One does not in fact cast out Satan, as I think the right reverend Prelates would remind us, by invoking Beelzebub.
Lord Balogh: My Lords, will the review include the methods of recruitment and the methods of promotion in these services, because I think there is an essential fault at that point?
The Lord Chancellor: My Lords, I am not sure that I entirely caught the noble Lord's question, but of course methods of recruitment, either by hostile intelligence or by our own counter-intelligence services, would be within the purview, I think, of the review which my right honourable friend has in mind.

Transport Boards (Adjustment of Payments) Order 1981
4.13 p.m.
The Earl of Avon: My Lords, on behalf of my noble friend Lord Bellwin, I beg to move that the draft Transport Boards (Adjustment of Payments) Order 1981, laid before the House on 3rd March, be considered. This order establishes, for the rating year 1981–82 and subsequent years, the "standard amount" which determines the contribution in lieu of rates to be paid by the British Railways Board. It would result in a decrease in British Rail's "standard amount" of £1 million as compared with 1979–80, but would represent a small increase over 1980–81, which for reasons which I shall explain was a transitional year. Permanent revision of British Rail's contribution in lieu of rates as a result of the recent change of status of the National Freight Corporation is required, and this order introduces it.
Before I explain the purpose and effect of the order in detail, it may help if I say something about the background. Instead of paying rates, as such, on their operational property, British Rail pay an amount in lieu of rates, calculated in accordance with statutory provisions. The Secretary of State for the Environment then distributes the money between rating authorities. British Rail's liability for any year depends on a prescribed "standard amount"—which this order would amend—and also on the average rate poundage set by local authorities in the previous year. This covers the railway network. In addition, British Rail pay rates in the normal way on non-operational property, such as hotels, refreshment rooms and some offices.
Before 1980–81, the National Freight Corporation was required to make to British Rail a "fair" contribution in relation to premises which it occupied for the purposes of handling rail-related traffic. The amount of the NFC's contribution was a matter for agreement between the two boards, and was originally fixed when almost all of the corporation's traffic was carried by rail at some point on its journey. In recent years, however, an increasing proportion of the corporation's traffic was carried by road. Under rating law, road transport depots are assessed and rated by normal methods: this is what happened to much of the NFC's property with the result that an additional burden—a sort of "double rating"—ensued. That this burden was unfair was recognised in 1980–81, when British Rail's "standard amount" was reduced for that year by £573,000 as compensation for the element of double rating of NFC property, which had taken place since 1st April 1978.

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The 1980–81 reduction also took account of the intended change of status of the NFC to a Companies Act company from an "appointed day". From that date, all NFC premises were to be rated by normal methods and the corporation (or its successor) would no longer be required to contribute towards British Rail's payment in lieu of rates. On the assumption that the "appointed day" would fall midway through the rating year, that is to say 1st October 1980, a reduction of £500,000 was agreed. Taking account of these two elements (of £573,000 and £500,000) the Transport Boards (Adjustment of Payments) Order 1980, which the House agreed to last year, reduced British Rail's "standard amount" by £1,073,000—from £18,963,000 to £17,890,000.
During the making of the 1980 order the Government made it clear that a further order would be necessary in 1981 to make a once-and-for-all adjustment to British Rail's liability. This would reduce the "standard amount" for British Rail by £1 million permanently from the 1979–80 level and, if necessary, compensate for any discrepancy between the actual date of the NFC's becoming a Companies Act company and the anticipated date of 1st October 1980. Noble Lords will also note that no further adjustment has been necessary to take account of the actual date of the change of status of the NEC. This is because, as envisaged, the "appointed day" did fall on 1st October 1980.
The order before the House is the further order. It sets British Rail's "standard amount" for 1981–82 and subsequent years at £17,963,000, which is £1 million less than in 1979–80 (the last year before the transitional adjustment of 1980–81). Noble Lords will see that this figure is entirely in accordance with the proposals outlined last year, on which consultation took place prior to the making of the 1980 order. Both British Rail and the local authority associations were consulted on proposals then, and recently have been advised that this order was about to be introduced in order to complete the change.
To sum up, I should like to make these few points. There is nothing new in this order; it is the statutory instrument discussed and promised last year to round off a two-stage adjustment. The order reduces British Rails' "standard amount" by £1 million, and its rate bill by slightly more, to reflect the fact that the newly established National Freight Company Limited now pays rates through the normal system. Last year's order brought in a transitional arrangement, which partly gave compensation for an earlier period and which, therefore, for a single year only, made a reduction slightly greater than would be required permanently. This order increases the standard amount slightly as the transition comes to an end, but it established a permanent reduction of £1 million off the amount that existed until two years ago. The order has been accepted by both British Rail and the local authority associations. I beg to move that this order be now approved.
Moved, That the draft order laid before the House on 3rd March be approved.—(The Earl of Avon.)
Lord Strabolgi: My Lords, we on this side of the House are grateful to the noble Earl for explaining
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the provisions of this order. Although it is a short order, it is an important and complicated one, and we are grateful to him for what he has told us. We have no particular points that we want to raise, and we hope that it will pass through your Lordships' House.
On Question, Motion agreed to.

Supreme Court Bill [H.L.]
4.20 p.m.
Report received.
Clause 4 [The High Court]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 1:
Page 3, line 12, leave out ("seventy-four") and insert ("eighty").
The noble and learned Lord said: My Lords, I adumbrated the fact that I was about to move an amendment in this sense at the time when I moved the Motion increasing the maximum number of High Court judges from 75 to 77 and I gave in broad detail my reasons for doing so. It is manifest to me, and I believe it will be manifest to any others who are at all cognisant of the present state of the courts, that an increase in the maximum number of High Court judges is desirable, although of course it would not be my intention to use in the near future the power which I would be given were the amendment accepted. To fill the remaining three places I should have to go through the very strict disciplines of the Treasury and other persons who put constraints on me, and properly so, in the public interest.
I am convinced that this power is desirable. The pressure of business rises remorselessly. In the Crown Court last year almost 56,000 cases were committed for trial; on top of that there were about 15,000 committals for sentence, and in addition there were the appeals to the Crown Court from the decisions of courts of summary jurisdiction. There was a slight remission after the noble and learned Lord, Lord Elwyn-Jones, and the previous Administration put into effect, at any rate in part, the findings of the James Committee, but the figures rose remorselessly again thereafter.
The civil business of the High Court which has to be attended to is rising again very fast. In 1980, for instance, there were 27 per cent. more Queen's Bench proceedings commenced than in 1979, and that will give rise to a similar increase, though a very much smaller absolute number, of hearings and judgments in due course.
The work of the courts is carried on in part by deputy judges, both deputy High Court and deputy circuit judges, and by recorders who are part-time judges. This has given rise to some, I think on the whole legitimate, complaint in that when parties come, especially for civil business, to have a case tried in the High Court, they rather expect to have a High Court judge to try it. I think those criticisms can be overdone, and speaking simply as Lord Chancellor I would say that the use of part-time judges is, or has been in my experience—and perhaps the noble and learned Lord will confirm this—of very great assistance

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in making permanent judicial appointments because they gain experience and one gets experience of them. None the less, the situation is unsatisfactory at the moment and the pressure of work is constantly rising.
It will be—again, as I think I adumbrated on the Motion—a deliberate act of policy so far as I am concerned to switch back to a certain extent the amount of Crown Court work which will be tried by High Court judges as distinct from circuit judges, because the present system of banding different classes of offence for different classes of judge, although on the whole it works very well, is not really adequate to deal with the really difficult and complex long frauds which are now coming before the Crown Courts, and for which judges with both criminal and commercial experience are essential.
I would say in passing that on the Motion I wrongly gave the impression to at least one circuit judge, who is trying a complex matter of importance at one of the Crown Courts, that I was referring when I gave instances to a matter which is still sub judice before him. Of course, I would have been entitled to because this is legislation, but I was referring to quite a different set of proceedings which had in fact concluded, and I feel I should make that absolutely plain.
To give some indication of the kind of thing I have in mind, I take first of all the number of Crown Court days sat on crime by High Court judges. Of the total volume in 1972, 10 years ago, 10·3 per cent. of cases came before High Court judges. The present figure is under 5 per cent. (it is 4·9 per cent.); and equally, to put it another way, the number of High Court judge days sat on crime has correspondingly declined from nearly 35 per cent. in 1972 (34·8 per cent. was the exact figure) to 25·6 per cent. at the present time.
I am sure that if Crown Court business is to be dealt with adequately, it is essential that High Court judges must be asked to sit a larger number of such days in the Crown Court, not only to deal with the band one crime—which is for their decision partly because of the importance of the type of offence, as for instance murder—but also to deal with long and complicated questions perhaps involving matters of commercial law and accounts which have to be explained to juries, and which require judges of the very highest calibre.
I am sure I have made out a case for a new statutory maximum number to be inserted in place of the old figure. It was 75 (or 74 and the Vice-Chancellor). Because of the Motion we passed the other day it now stands at 77; and I am now asking that it be made 80. I hope the House will think this a reasonable request and will agree that it is the right way of handling a difficult problem. It gives me a certain amount of headroom and, as I say, the situation now is that I have no immediate appointment in mind. However, should Parliament be good enough to give me these powers, I am sure they will be used in due course.
To correct a rather extraordinary article in The Times the other day, I would point out that there is in fact no shortage of candidates for judicial appointment at the top of the Bar. It is really a remarkable tribute to the Bar that there is no shortage of barristers who are willing to take High Court judgeships, despite the very considerable financial loss to which they are subjected by doing so. I have been enormously impressed in this, my second term of office, by the
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high standard of the top of the Bar and I should like to pay my tribute to them. However, I wish to correct a statement that appeared in a very well-known newspaper to the effect that advocates with very little experience of advocacy were frequently appointed to the High Court Bench. That is absolutely untrue. I have had experience of making judicial appointments going back to 1970, and of the appointments made by the noble and learned Lord, Lord Elwyn-Jones, which were very favourably received, if he will allow me to say so, and so I have taken a very close interest in this matter. That statement is wholly incorrect. No one who has not long experience of High Court advocacy is appointed to the High Court Bench. Having said that, I hope that I have said enough at any rate to establish a prima facie case. I beg to move.
4.31 p.m.
Lord Elwyn-Jones: My Lords, we covered this ground to some extent when we recently debated an order to increase the number of puisne judges of the High Court from 75 to 77, and the noble and learned Lord the Lord Chancellor, then forewarned that, like Oliver, he might ask for more. He has done so now, at this convenient opportunity. It is a sad fact that there has been more than one form of inflation, as the noble and learned Lord said; and the inflation of work in both the criminal and civil courts caused me very great anxiety when I was in office, and it still does. The need to appoint more judges has become inescapable, and I agree that since there is no likelihood in the foreseeable future that the upward trend would be held, it is convenient from a parliamentary point of view, and from the point of view of the Lord Chancellor's Department, that the required power should be available without the necessity of legislation.
I am sure that the noble and learned Lord will not cease to continue the efforts to reduce the time taken in litigation in both the criminal and civil courts. It really is astonishing how much time is taken. I am sorry to confess—since I was not able to do a great deal about it myself—that the time taken statistically in the hearing and trial of cases has increased, and is increasing, whereas it ought at least to be held, if not diminished. Perhaps this is a subject for debate on another occasion, but I mention it merely en passant because I know that I shall be striking a sympathetic note with the noble and learned Lord the Lord Chancellor. Perhaps at some time the House will have an opportunity to discuss what might be done about the problem. I should add that not only the judiciary, but also the legal profession itself—both the Bar Council and the Law Society—are applying their minds to this question, and one would hope for some result.
I wonder why the civil business is increasing so substantially? It was keeping fairly steady in my time. I am not blaming the change of Government for this situation, I hasten to add, willing, as I am, on every occasion to seize every opportunity to do so. But if the noble and learned Lord is able to throw any light on this point, I at any rate should be greatly interested. I consider that what is proposed here is a sensible power to seek from the House, and I support it.
Lord Mancroft: My Lords, as an ordinary Back-Bencher and a former member of the Bar (a long time ago) may I endorse what the noble and learned Lord, Lord Elwyn-Jones, has just said about the length of time that some cases are taking. There are complicated cases which cannot be adjudicated in an afternoon, but when one gets cases going on for three or four months, dealing with what appears to the man in the street to be quite humble, not very important matters—though of course they are important for the people concerned—that is not only bad for the parties concerned and for the administration of justice, but it brings justice into disrepute.
When he sees a case going on with jurymen and counsel occupied for months on end, the man—or woman—in the street is undoubtedly at a disadvantage when asked to judge the prestige of British law and British judicial administration. Such a man wonders why on earth distinguished Lord Chancellors have not done a great deal about it some time ago. I know the answer, and Lord Chancellors know the answer, but the man in the street does not, and I do not think that it does the administration of justice any good when cases involving comparatively trivial matters go on for months and months. I hope that the noble and learned Lord on the Woolsack, who is well aware of this fact, will one day find time to solve the problem, though I know that it is not an easy one.
Lord Elwyn-Jones: My Lords, may I put just one question to the noble Lord? He has been brave enough and bold enough to say that he knows the answer to the problem. I should have been very glad to hear it.
Lord Mancroft: My Lords, the noble and learned Lord has misunderstood me. I said that I did not know the answer. I said that perhaps the Lord Chancellor knows the answer; but I do not know it.
Lord Elwyn-Jones: My Lords, I thought that the noble Lord said the opposite to that; that is why I was waiting impatiently to know the answer.
Lord Hale: My Lords, I had not intended to intervene and I have not brought with me the appropriate reference, but in view of what the noble Lord has just said, may I supplement his question with a very brief reference to a case that was reported in The Times on 12th January? It concerned a charge of conspiracy to defraud, and The Times stated—it might have been a misprint—that the opening speech lasted 71 days and that counsel for the defence complained that when they asked to be supplied with the necessary documents to enable them to complete their defence, prosecuting counsel had referred them to his forthcoming opening speech, which he had not then delivered and which, as I say, The Times said lasted 71 days. The whole case took 90 days. The point involved appeared to be a very simple one, on a question of fact. It was a question of whether people who handled very large sums of money with some lack of care were guilty of a moral failure or were guilty of a crime. At the end of the case, after an eight-day summing up, according to The Times, the jury found the three accused persons guilty, and two of them were sentenced
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to terms of imprisonment of five years and four years. An appeal was expedited, on no doubt excellent grounds, and the Court of Appeal quashed the conviction. I sympathise with the judge in the case because he had been inadequately informed.
The two appellate judges—judges of undoubted ability and experience—frankly expressed their regret at having come to the inevitable conclusion, without hesitation, that a conviction could not stand; and the convictions were quashed. There is no criticism whatsoever of the appellate court, which acted with promptitude and in accordance with an imperative duty. But is not some inquiry necessary when we get to that state, and if so, by whom?
4.40 p.m.
Lord Mishcon: My Lords, I hope to set an example to the legal profession—with the humility with which I speak I dare not say "an example to learned judges"—in that I shall certainly not take even 71 minutes in dealing with the amendment.
I am perfectly sure that the House will welcome the recommendation of the noble and learned Lord that there should be an increase to the number that he has mentioned of High Court judges. I was wondering how I could possibly introduce, with your Lordships' forbearance, the view that because of the necessity to see that the best possible appointments were made, that side of the legal profession to which I have the honour to belong should not be excluded when they reach the position of circuit judges. That was an amendment that I put down on the last occasion and then withdrew because the noble and learned Lord was kind enough to say that he would have certain consultations within his department, although he held certain views about the retention of the status quo.
Then the noble and learned Lord, with his usual kindness, gave me the opening by himself referring to an article which appeared in The Times and which was upon that very issue. It was extremely good of him; and I do not intend to follow his argument with The Times, except that I know he will not mind my saying on this occasion that although he implied last time that prior consultations and discussions had not taken place between the Bar and the Law Society, and that this made the amendment a little of a disadvantage to the good relationships between the two sides of the profession, he was subsequently kind enough to write to me to say that he was under some misapprehension when he made that remark because prior discussions had taken place. I want to take this opportunity to make that clear, and I know the noble and learned Lord well enough to know that he will possibly make a few remarks of his own in answer to me in order to make that position clear.
My Lords, I say only this further. I do not intend to move any amendment today which will deal with these judges possibly coming from the ranks of solicitors when they become circuit judges, because I think that further discussions have got to be held, whether with the Law Society and myself or between the two branches of the profession. I thought it far better, therefore, not to put that amendment down again, but to leave it to another place to deal with it when our Bill goes there.
Lord Denning: My Lords, I hope your Lordships will agree to the addition of four more High Court judges. I should like to say how much I agree that many cases today take far too long—and what is the cause? Part of it is due to the availability of legal aid. It is also due to counsel being far too prolix. It is also due to the judges not taking sufficient control and being too polite, and letting them go on for ever. It is also due to the great mass of paper, photography and the like with which the courts have to deal. All these accumulate together and make our cases far too long, particularly cases of trial by jury. As the noble Lord, Lord Mancroft, said, they take far too long, both in the civil courts now and in the criminal courts. I do not know the remedy. Perhaps, as Lord Mancroft said, the Lord Chancellor does. At all events, we ought to have these extra High Court judges.
The Lord Chancellor: My Lords, I should like to thank the noble Lords who have taken part in this debate, including the noble and learned Lord the Master of the Rolls, who we see here all too seldom because of his busy life. If I may pick out some of the points which have been made, let me first deal with the speech by the noble Lord, Lord Mishcon. I did make further inquiries after the Committee stage, and I gathered that the Bar and the solicitors' profession did have discussions, as he said, but as they saw after a very short time that there was not the smallest chance of their agreeing, they agreed to differ and parted their several ways. At least, that is my impression.
I am afraid I remain impenitent on the subject of the High Court. I am bound to say that practice in the High Court, which I suppose was my principal stamping ground professionally, depends on knowledge of High Court practice, which is both complex and difficult, and I cannot see the smallest possibility of appointing to the High Court bench anybody who had not got, not 10 but probably more like 20 or 25 years of experience of High Court practice, both pleading and advocacy—and in the present situation that means members of the Bar.
As I pointed out, and as I may be pointing out in connection with an amendment or two which the noble Lord, Lord Mishcon, has down at a later stage, the functions of a barrister and a solicitor are different and complementary so far as these matters are concerned. I am quite convinced that if a solicitor feels that his role is in advocacy, he should follow the path taken by the noble and learned Lord, Lord Widgery, and change over to the Bar. Then he will have 10 years' experience at the High Court, and will stand a very good chance of being Lord Chief Justice. At any rate, this is what happened to Lord Widgery, and I recommend that course to solicitors who want to practise in the High Court.
I now return, if I may, to the noble and learned Lord, Lord Elwyn-Jones. Why, he asks, is the volume of work in civil litigation increasing? I do not know, but I will tell him what my master said when I ceased to be a pupil—and that was the late Theo Matthew. He said that I would notice over the years that whenever there is a change in economic climate, whether it is improving or whether it is going down, the number of Queen's Bench writs (not necessarily the number of Queen's Bench trials, but at any rate the number of
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Queen's Bench writs) will very largely increase, because if the prices are going up very fast the vendor tends to break his contract, and if they are going down very fast then it is the purchaser. I may have got it the wrong way round, but a lot of cases are started because people break contracts of sale, and when there is a change of price one party or the other tends to break it.
I suppose that the number of personal injuries cases also varies to a great extent, so far as motor car offences are concerned with the volume of traffic on the roads and the quality of the roads, which does not seem to me to improve day by day; and the number of employers' liability cases, of course, depends on the number of industrial accidents. I do not think I could tell the noble and learned Lord more than that, which is not based on knowledge but on surmise to some extent, about the volume of litigation.
Now, why does civil litigation take longer? That, again, I think, is due to the same kind of factor which applies also in criminal cases. There is no doubt that advocacy is becoming more prolix. I cannot necessarily explain why that is so. When I went to the Bar I was taught that if you put your case succinctly, concisely and clearly, you were more likely to win it. Unhappily, I discovered as time went on that there were advocates who managed to wear down the court by sheer repetition, and that they would win their case against me, so I became much more repetitious as time went on. So whether the judges are wise to allow themselves to be got around in this way, I do not know.
In the criminal field, which is rather important from this point of view, there is no doubt to my mind that the quality of the summing-up has gone down since I first went to the Bar. The noble and learned Lord, Lord Diplock, who I think I see there on the Cross-Benches, and I sat on an Appellate Committee of this House and gave judgment last week. It was a case, said the noble and learned Lord, Lord Diplock, in his excellent judgement, which would have taken, I think, half a day when he was first at the Bar. It in fact ran on from, I think it was, a Thursday to the Friday and the Monday, and the summing-up started on the Tuesday morning. The jury came back somewhere about half-past three with a majority vote on the Tuesday afternoon. The Court of Appeal quashed the conviction on the basis that by that time they were so bemused they did not quite know what "recklessness" meant—a word which, I may say, has been in the English language since the time of the Venerable Bede.
I would say that there is a great deal that the professional has got to remember, recall and recover in the way of conciseness, incisiveness and decisiveness, but the judges must give a lead. It is no good reciting in a ritual way whole passages from your notebook. The business of a judge in summing up to a jury is not to give a lecture on philosophy or to give a circular tour round a particular area of the law, but to tailor-make a summing-up so that the jury will know the points of primary fact on which it has to make up its mind and the inference which legitimately can be drawn according to the various options it has under the evidence. If the judge would take a little more time preparing his summing-up, then advocates might take a leaf from his book. I have forgotten which noble Lord it was; but it was a noble Lord in this

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debate, who was right when he said that the courts should control the prolixity of advocates, the interminable and repetitious cross-examination and the enormous length of speeches; and this is something which would make a significant contribution to the shortness of cases, criminal and civil. On the other hand, one must remember that litigants have a right to their day in court, they have a right to be heard, to think and to know that they have had a fair crack of the whip from both their own counsel and the opponents and the judge. It is not altogether easy.
I should like to make one or two general observations. My department and I are busy with the profession in trying to work out an interlocutary procedure tied to legal aid in criminal cases where the points can be identified in advance, the necessary admissions made, the witnesses released who do not give tendentious evidence and in short that people should know before entering the court on trial what the points are that they are going to dispute about. We are making a little more progress in that. The idea behind it is to see whether we cannot slightly tilt the legal aid which covers 90 per cent. of the cases in the Crown Courts now so that there is more remuneration for preparation and identification of issues and perhaps not quite so much on the length of the trial itself. Whether that will ultimately come to fruition, I cannot say.
I think that covers the very friendly reception that this amendment has had. Perhaps I should have added in answer to my noble friend Lord Mancroft that I think there has been a tendency by the prosecution to overload cases in recent Crown Court cases. I know that my right honourable and learned friend the Attorney-General is well seized of the point but you do not want to put in 26 distinct damnations, one sure, if others fail. You want to keep down the counts of an indictment and reduce to a minimum the number of defendants to the really bad offenders. That, too, will save a great deal of time for if they are not there they will not be allowed defending counsel; so that there will be only two or three counsel for the defence. I have said all I can. I thank the House kindly for the friendly reception this amendment has had. I beg to move.
On Question, amendment agreed to.
4.55 p.m.
Lord Mishcon Lord Mishcon moved Amendment No. 2:
After Clause 16, insert the following new clause:
("Appeals
. An appeal shall lie to the civil division of the Court of Appeal from an order of the Crown Court ordering a solicitor to pay all or any part of the costs of any proceedings.").
The noble Lord said: My Lords, as the House will appreciate the amendment asks for a right of appeal to the Civil Division of the Court of Appeal from an order of the Crown Courtordering a solicitor to pay all or any part of the costs of any proceedings. I am going to try to abridge my address to your Lordships because I had the pleasure of dealing with the matter on Clause stand part at the Committee stage. Those of your Lordships who were present then will remember that I dealt with a case which had caused a great amount of injustice—I think I might be entitled
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to call it a terrible case—which has found its way into our Law Reports. It is the case of Regina v. Smith, otherwise cited as Regina v. Martin. It is reported at 1974 1 All England Law Reports, page 651, when it came before the Court of Appeal.
I am somewhat heartened by seeing at least one beloved figure in this House today who, as Master of the Rolls dealt with that appeal. I must be particularly careful to see that I quote him precisely; otherwise I shall be very properly castigated. It is far better possibly, instead, of trying to paraphrase to read shortly what the judgment was and then only refer briefly to what the noble and learned Lord the Master of the Rolls and Lord Justice Megaw and Sir Eric Sachs said at the time. First, what was the judgment. I am reading from page 651:
"The Crown Court had as full and ample a jurisdiction over solicitors as the High Court had and could, therefore, order a solicitor, as an officer of the court, personally to pay costs occasioned by his negligence …
"The circuit judge had acted wrongly"—
Here I must paraphrase and, with the mischief that I have learned from the noble and learned Lord the Lord Chancellor, say that my inquiries so far show that the learned circuit judge had come from the Bar and not from my side of the profession—
"in making the order since he had failed to give the appellants the opportunity of being heard…Accordingly, if there were jurisdiction to do so"—
I am omitting a few words—
"the order made by the judge should be set aside…
"The Civil Division of the Court of Appeal, however, had no jurisdiction to entertain an appeal against the judge's order. The court's jurisdiction was entirely statutory and there was no provision by statutute for any appeal from the Crown Court, except for an appeal by the accused to the criminal division against conviction. Accordingly, the appeal would be dismissed".
That was dealt with by the noble and learned Lord the Master of the Rolls in the following terms:
"In my opinion the circuit judge (sitting in the Crown Court to try a case on indictment) had jurisdiction to order the solicitors to pay the costs personally; but there is no procedure by which the solicitors can challenge the order in any higher court. This seems to me very unfortunate but we can, I think, do something to remedy the injustice. We can express our views on the matter in the hope that what we say may be heeded by those concerned".
If I may end the quotation there, the noble and learned Lord the Master of the Rolls—and I want to be quite fair and clear about this—was referring to those who might try to get the costs out of the unfortunate firm of solicitors. But I should like to be able to interpret his words as meaning that those concerned with legislation in the future and able to deal with this matter might be able to take advantage of that opportunity at some future date. And, my Lords, we have that opportunity now. The noble and learned Lord, Lord Megaw, said:
"On the unchallenged evidence, the appellants have a real and substantial grievance".
And Sir Eric Sachs, who was sitting in the Court of Appeal that day, had words of a similar kind to utter. Those were the three judges in the Court of Appeal. Your Lordships may wonder why this situation has arisen. It is because the Crown Courts were set up under an Act of 1971 and this may be the first available opportunity, the first convenient opportunity, of dealing with this injustice.
All that one is asking for is that those who are

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professionally concerned in a case and who act negligently should without any doubt at all face whatever penalty quite properly a court may deem fit to administer. I am sure that I do not have to expatiate on the theme to your Lordships that to have an order to pay costs personally in regard to proceedings is more than a slight upon anybody practising the legal profession. In a local practice it can be penal in the extreme especially when reported in the local press.
To have no right of appeal in this type of case must seem to your Lordships, as it does to me and the Law Society, to be a grave injustice. All that this amendment asks for—and I ask for your Lordships' support—is that there should be a right of appeal to the civil division in the Court of Appeal in such a case. The noble and learned Lord the Lord Chancellor said, with his usual courtesy, that he would look into this matter. Indeed, he was kind enough to say at the Committee stage that it seemed as though there was more than something to look into as there might well be an injustice in a case of this kind. I am paraphrasing his remarks.
As one would expect, he has been courteous enough to write to me and to say in the course of his remarks that, while there might be a grievance, he feels that possibly this is not the appropriate time or stage to deal with the matter. I hope that I shall be able to answer that point if he seeks to make it today. For the moment, I leave it with your Lordships in the confident hope that he will take this opportunity to put what the Master of the Rolls and his learned colleagues in this case thought to be a grave injustice; the negation of the right to appeal in a matter of this kind. I beg to move.
Lord Denning: My Lords, I should like to support this amendment. I remember the case well: a solicitor had been ordered by a circuit judge to pay the costs. He was alleged to be negligent. But the solicitor had not been given a proper chance to be heard in his own defence so clearly there ought to have been an appeal and the order should be overruled. But unfortunately the court held that there was no such power of appeal at all. Well, my Lords, there ought to be. I am only too glad to support Lord Mishcon's amendment to give an appeal to such a disgrace to the law.
Lord Diplock: My Lords, in the constitution of Trinidad and Tobago there is written on fundamental rights a case exactly like this. It came before the Privy Council from Trinidad and Tobago where exactly this happened. A person had been punished by the court without being given an opportunity to speak in his defence. We held in the Privy Council that that was a breach of a fundamental right and we held that he was entitled to redress from the state. There is clearly in this case a lacuna in our law. Whether this particular amendment is the best way of curing it, I do not know; but it certainly ought to be cured.
5.4 p.m.
The Lord Chancellor: My Lords, the noble Lord, Lord Mishcon, is perfectly right. I said—and I say again—I am quite sure that there is something that ought to be done in this matter. I doubt—for reasons that I am about to give—whether this particular amend-
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ment will do the trick or do the trick adequately. There are rather more difficulties in the way of it than appear at first sight. I was very grateful to the noble and learned Lord, Lord Diplock, for reminding the House of the case of Maharaj v. The Attorney-General of Trinidad and Tobago, which arrived before the Privy Council on at least two separate occasions, where something like this happened. It was rather different in some ways because the unfortunate advocate was sent to goal and not simply made to pay the costs.
Curiously enough, that case had flitted across my mind as I heard the noble Lord, Lord Mishcon, recite the judgments in the case which came before the Court of Appeal here. It was Martin or some such name as that. I am not at all sure that the right remedy may not be something by way of judicial review rather than appeal. The difficulties at the moment in the way—and I shall enumerate them because I should like to take this amendment back and think about it further, possibly in consultation with the Law Society—are as follows. There is no doubt that the jurisdiction to make a solicitor pay the costs arises from the fact that he is an officer of the court, and the court has an inherent jurisdiction to deal with its own officers. The cases in which the court does so are happily very rare. But that is how it arises. A typical case where it might happen is where a solicitor fails to turn up at all or fails to instruct counsel with the result that the costs of a day's hearing are thrown away. There can be other cases of professional incompetence where it is appropriate. I should think it is appropriate very seldom indeed because anybody who has been engaged in criminal litigation knows how easy it is for things to go wrong.
Having said that, what redress ought to be given? Of course, the alternative to the solicitor paying the costs is either that the prosecution pay the costs, the defence pay the costs or the Legal Aid Fund pays the costs. Who are to be the parties if you go by way of appeal to the Court of Appeal? The prosecution is hardly a party. The defendants, who would be the other alternative, are not parties effectively if they are legally aided. The Legal Aid Fund I think would have to be the alternative party and would have to argue the case in the Court of Appeal. One must have a clear mind as to what the remedy is that one is going to provide for the solicitor.
I fully agree with the noble Lord, Lord Mishcon, that first of all some redress ought to be open to him, and it is not enough to say that it could be referred to the disciplinary committee of the Law Society, which is one suggestion that I have heard, or the Taxing Master. I think on the whole a judicial redress of some kind is one which alone will satisfy the Law Society. I cannot make any definite promises, but I am on the noble Lord's side and I should like to find a way out.
If the noble Lord will take this amendment away for today I shall try and ask my office to get in touch with the Law Society and hold further discussions—possibly under my charimanship or the chairmanship of a high official in my office—and see whether we can hammer out a solution. This Bill has to go to the Commons and if we can find an agreed solution I should be very much happier than if either this amendment were rejected or if it were carried against

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what my present advice from my officials has been. Having said that, I wonder whether we could not come to terms and settle this case if we can.
Lord Mishcon: I would be churlish to refuse an offer of this kind. I understand the offer to be—and the noble and learned Lord will correct me if I am wrong—that he finds right on this side; he agrees with the principle of the amendment but thinks there should be further discussions as to the way in which either an appeal or a review should be dealt with. With that in mind, he would be happy to see that members of his department have consultations with the Law Society with even the possibility—which I know would be so much welcomed—that he himself might preside at some stage of those deliberations. If I have rightly interpreted the noble and learned Lord, I am more than happy to withdraw the amendment at this stage.
Amendment, by leave, withdrawn.
Clause 20 [Admiralty jurisdiction of High Court]:
5.10 p.m.
The Lord Chancellor The Lord Chancellor moved Amendment No. 3:
Page 15, line 32, leave out from ("wages") to end of line 37.
The noble and learned Lord said: This amendment goes with Amendment No. 35, which is consequential. It is simply to correct a drafting oversight. The amendment repeals some words which have nothing to apply to because of the repeal a few years ago of some provisions in the Merchant Shipping Acts of 1894 and 1906. I beg to move.
On Question, amendment agreed to.
Clause 21 [Mode of exercise of Admiralty jurisdiction]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 4:
Page 17, line 23, at end insert—
("Provided that if the claim in question arose before the commencement of this Act, an action in rem shall not be brought against that ship unless, at the time when the action is brought, that ship is beneficially owned as respects all the shares therein by the person who would be liable on the claim in an action in personam.").
The noble and learned Lord said: The actual terms of this amendment are probably uncontroversial since the objective is to remove an element of retrospectivity in the provisions of Clause 21 dealing with the Admiralty action in rem; but I happen to have had correspondence with my noble and learned friend Lord Diplock on the underlying policy of this amendment. He has been in touch with the General Council of Shipping, the British Maritime Law Association and the P and I Clubs. He wrote to me the other day about it. I must say, with a note of plaintiveness, that these very distinguished bodies had our consultative documents last May and only saw fit to utter a note of complaint about the Bill last week. If they could have broken into a gentle trot a little earlier I think it would have been better for them and easier for me.
The rules of this House being flexible, I did take
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the liberty to suggest to my noble and learned friend Lord Diplock that he should put their case, using this amendment (which really has not a great deal to do with what he wants to say) as a peg on which to hang the hats of his friends and clients. I hope your Lordships will find that convenient. Having said that, may I now move my own amendment formally. I beg to move.
Lord Diplock: The noble and learned Lord the Lord Chancellor has been good enough to let me take this occasion to apologise on my own behalf as well as on behalf of the General Council of British Shipping, the P and I Clubs (that is, the Protection and Indemnity Clubs) which take care of the liability insurance for shipping in the greater part of the world as well as in connection with British shipping, and the British Maritime Law Association, of which at one time I was president and which represents all the maritime interests in this country: shippers, shipowners, insurers and the like.
I ought at the Committee stage to have spotted what appears somewhat coyly in subsection (3) of Clause 21. When I say "somewhat coyly", the reference to it in the Explanatory and Financial Memorandum says this:
"In Clause 21 the law governing the High Court's Admiralty jurisdiction to entertain actions in rem against ships has been restated to take account of recent decisions, and rights to start proceedings in rem against sea-going ships are extended up to the limits provided for in the Brussels Arrest Convention…".
I had not appreciated that "to take account of recent decisions" was intended to include overruling them; nor did I realise that in what is primarily a Bill to consolidate procedural matters a serious and important change in substantive law was slipping through—not only a change in substantive law, but also a change in what has hitherto, so far as I know, been the commercial policy of the United Kingdom in relation to the subject matter of this clause. It is, I fear, a quite esoteric subject matter, which is no doubt why it managed to slip past so many people until this very late stage; and I was approached only last Monday by a deputation from the three important representative bodies to which I have referred and for the first time spotted for myself what was happening.
Perhaps I should explain the situation. I will do it as shortly as I can. Under Admiralty jurisdiction, claims against the owner of a ship are enforceable against the ship owned by him or a sister ship which is also owned by him; and when I say "enforceable against the ship", it is the action in rem. It means that the creditor can arrest the ship and have it sold by the court in order to provide the funds to meet his claim. The selling by the court is really in theory. In practice what happens is that it is released upon security provided by the P and I Club—a fund from which sufficient is taken to meet the claim of the claimant who has put through the operation of arrest. It has always been one of the principles of Admiralty law in this country that once the ship has been sold to a new owner the vessel is no longer arrestable for the claims against the previous owner of the ship. But there have been by maritime law, which has gone on for centuries, six exceptions, six kinds of claims, of which only five now continue to exist; six kinds of

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claims in which the ship can be arrested and sold or security provided notwithstanding that it has changed in ownership since the claim was made and the present owner never has been liable for the claim personally.
The five exceptions with a maritime lien—and a maritime lien represents a secret charge upon the ship because the buyer in good faith may know nothing of it and there is no way he can discover it, and the British policy up till now, or certainly up to two or three years ago, when I ceased to be president of the British Maritime Law Association, was to keep to a minimum the maritime liens which had this effect of a secret charge and to oppose any extension of it. I have voiced that policy in various meetings of the International Maritime Committee, and it is the explanation why this country refused to ratify either of the conventions about maritime liens and mortgages not only in 1926, which is a long time ago, but in 1967, when was concerned with the negotiations about it.
I, personally, am not opposed to some extension of maritime liens. I think particularly of ship repairers, and those who have provided what is necessary for the operation of the ship. There are a few countries which recognise a very extensive number of maritime liens, but the majority of countries, although they recognise more than this country does, nevertheless do not recognise the whole number of liens which are now set out in Clause 20(2). France and Belgium do. To take three examples—and I have no doubt that there are many more—the Federal Republic of Germany, Holland and Denmark do not recognise as maritime liens claims in respect of cargo and claims in respect of charter parties. Those form paragraphs (g) and (h) of Clause 20(2).
These claims for cargo losses or damage—claims under charter parties—represent ordinary, simple contract debts. The effect of Clause 21(3), as it stands at present, is to convert these into secret charges, lasting six years and thus, possibly, through more than one change of ownership of the vessel, which may be very large indeed. Compared with other maritime liens, whose duration is generally short—one year or, possibly, only one voyage—these will, as I say, continue, unless the subsection is amended, to last six years.
It was suggested that it would be possible to deal with this by a purchaser of a ship taking an indemnity from the previous owner, from the vendor, and covering by insurance the possibility that the indemnity would not be met. It is not practicable to obtain insurance against that kind of risk. So far as Lloyds and ordinary insurance is concerned, it is an insurance against a financial risk which is not, in practice, insurable. So far as the P and I clubs are concerned, it is not practicable for them to insure that.
I venture to suggest that a Bill of this kind, which is concerned with jurisdiction and with practice and procedure, is no place in which to make so fundamental an alteration in the substantive law and, without close discussion and consideration, to make a change in what, hitherto, has been the commercial policy of this country in this field. I would invite the noble and learned Lord the Lord Chancellor to add to his proviso, which is the amendment that we are debating at the moment, a provision that claims under paragraphs (g) and (h) of Clause 20(2), whether the claim arose before or after the passing of the Act, shall not be
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brought against that ship unless, at the time when the action is brought, the ship is beneficially owned as respects all the shares therein by the person who would be liable under the claim on the action in rem.
I was too late to put down that amendment for the Report stage, but the noble and learned Lord the Lord Chancellor was kind enough to let me make the kind of speech which I would have made if I had been in time to do it. I would invite him to consider very carefully—and perhaps to discuss the matter with representatives of those bodies to which I have referred—whether it is possible to put down an amendment to this effect at the Third Reading.
5.27 p.m.
The Lord Chancellor: My Lords, I hope it is clear from what my noble and learned friend has said that this is a somewhat technical matter. He has no reason to apologise personally, although I still think that there was enough in the Bill to have put what I might represent as his clients on notice that this particular change was being made. They are among the most respectable bodies in the Kingdom, and they are universally admired as adding to the lustre of British maritime commercial law.
As the House knows, my noble and learned friend is not merely one of the most knowledgeable persons in this branch of the law in this kindgom, but is also an authority of international reputation. Therefore, what he says has to be taken with a very great seriousness and I do so take it. I must point out that in, I think, 1959 we ratified the Brussels Convention, which was dated 1952, following the passage of the Administration of Justice Act 1956. Our law does not yet conform with the Brussels Convention and the object of this clause is to make it do so. I add, again somewhat plaintively, that Scottish law does conform with the Brussels Convention. Therefore this clause, as it stands, may not be quite so bad as it is represented.
But I understand the point which is made by my noble and learned friend. He points out that there is a strong case for excluding cargo claims and charter party claims under paragraphs (g) and (h) of Clause 20(2) from the benefit of the action in rem against a ship after a change of ownership. He also points out that they are only simple contract claims and, in most Continental countries which are parties to the Brussels Convention, they do not have the benefit of maritime liens. This is clearly something which must be discussed and I take my noble and learned friend's point. If those by whom he has been asked to speak will get in touch with my office, I have officials who can deal with them on more or less equal terms—which I doubt if I can—and I hope that we can arrive at an accommodation, if not at Third Reading, perhaps as the Bill goes through another place. With that, I hope that my own amendment, which is the peg upon which this discussion has been hung, may be passed.
On Question, amendment agreed to.
Clause 33 [Powers of High Court exercisable before commencement of action]:
5.30 p.m.
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 5:
Page 25, line 40, leave out sub-paragraph (ii) and insert—

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("(ii) on such conditions as may be specified in the order, to any professional adviser of the applicant and to his solicitor").
The noble and learned Lord said: My Lords, this amendment, or an amendment to similar effect, was discussed at the Committee stage. The House will observe that in Clause 33 there is power in the High Court to order parties with documents in their possession to include among the documents that can be ordered for production, on such conditions as may be specified in the order, those of any medical, legal or other professional adviser of the applicant. That would seem to contemplate a situation where the court could order, say in a running down action, the production of a medical report on the condition of the plaintiff to be provided by the doctor alone without the participation of the solicitor for the parties in those proceedings.
The view has been put very strongly to me by The Law Society, and I agree with it, that the result of the clause as it stands would be to imperil the relationship between the client and his solicitor, between the client and the doctor and the whole relationship between doctor, solicitor and client. I think that it would be liable to create considerable difficulties.
It seems to me that the better course would be for the question whether the plaintiff should see the medical report to be left to the discretion of the solicitor. If it contained some dreadful statement about the terminal nature of the illness or condition of the plaintiff which, in the opinion of the doctor, would limit even further the contemplated life of the plaintiff, it would be proper in those circumstances for the solicitor, with the approval of the doctor, to withhold either the whole or part of the medical report.
The point is fairly simple. The noble and learned Lord the Lord Chancellor did not wholly accept it on the last occasion, but it may be that further reflection will make him think that this is a reasonably sensible proposal. I beg to move.
The Lord Chancellor: My Lords, as the noble and learned Lord has said, we discussed this matter in Committee. I do not think that there is any very great difference of principle between us. We both recognise that there are cases where a medical report of one kind or another cannot be shown to the patient simply because he is a claimant. I tend to agree with the noble and learned Lord that the principle underlying his amendment—that in any case the solicitor, if there is one, should be shown it, in addition to his doctor—is probably sound.
I am advised that the drafting is not quite right. For example, by speaking of production to any professional adviser of the applicant and to his solicitor there is a suggestion that the solicitor is not himself a professional adviser. Secondly, the production to some other professional adviser in addition is, as it is drafted now, a condition precedent to an order in favour of the solicitor, whereas there may be cases in which production to the solicitor alone might be the appropriate course, depending on the nature of the documents in question.
Finally, the draft as it is at the moment does not deal with the case when the claimant has not got a
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solicitor. That is a small minority of cases nowadays, but they still exist. The best thing I can do is to suggest that I should accept this amendment in principle but not as it is now drafted, and see whether or not, again in conjunction with The Law Society, we are able to arrive at amendments which can be proposed formally at Third Reading, if agreed.
Lord Elwyn-Jones: My Lords, in the light of that kindly and helpful observation of the noble and learned Lord the Lord Chancellor, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 34 [Power of High Court to order disclosure of documents, inspection of property etc. in proceedings for personal injuries or death]:
[Amendment No. 6 not moved.]
Clause 40 [Attachment of debts]:
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 7:
Page 30, line 2, after ("bank") insert ("or in a deposit or redeemable share account in a building society").
The noble and learned Lord said: My Lords, temporarily my noble friend Lord Mishcon is absent. I am not so fully seized of the matter which is the subject of the amendment as he is. I look in vain at the portals of the Chamber to see whether he is about to appear to give us words of wisdom about it. As I understand it, representations have been made by the various financial bodies concerned to my noble friend and, indeed, to myself. That has inspired the putting down of the amendments standing in the name of my noble friend Lord Mishcon. It may well be that the noble Lord, Lord Foot, is familiar with this matter. He shakes his head most unhelpfullymost uncharacteristic!
Lord Foot: My Lords, I wanted only to indicate that I know as little about this matter as, evidently, does the noble and learned Lord.
Lord Elwyn-Jones: My Lords, I make absolutely no admission as to that. But it may well be that the noble and learned Lord the Lord Chancellor is fully apprised of this matter. I am sure that this amendment is of such immense significance and importance that it would be unfortunate, through the mere temporary absence of my noble friend, if it were to go the way of all flesh. I beg to move.
The Lord Chancellor: My Lords, I think I can be reasonably helpful about this—at least, as helpful as I know how. The effect of this group of amendments—Amendments Nos. 7, 8, 9 and 10—which need to be read together would be to extend the scope of Clause 40 by enabling sums standing to a person's credit in a building society account, or in a deposit account in a Trustee Savings Bank, or in a municipal savings bank to be attached in the same way as ordinary deposit accounts of banks can be attached. I understood from the noble Lord, Lord Mishcon, that he designed these amendments primarily as probing

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amendments in order to place on record information contained in a letter by me to him which I had sent to him.
Having been probed, I think reasonably successfully, I believe that there is a great deal to be said, along the lines of what the noble Lord, Lord Mishcon, might have said, for enlarging the scope of Clause 40, the contents of which have remained unchanged since their original enactment in 1956. Consultations have been going on between my department and various interested bodies such as the Building Societies Association, the Trustee Savings Bank, the Finance Houses Association and others to see whether the range of attachable savings can be enlarged. The present position is that the consultations are not quite complete, but I can say to the House that they are going reasonably well. The last round of consultations has just been initiated with a view to having amendments moved in another place when the Bill reaches there.
In fact, they go rather further than those envisaged in the amendments before the House. Subsection (1), for example, might be enlarged to include not only sums in deposit or redeemable share accounts in building societies, as proposed in the amendments, but also sums in deposit or share accounts in any society registered under the Industrial and Provident Societies Act of 1965, including, for example, a credit union.
Another and more far-reaching suggestion is that subsection (3) might be omitted altogether. As your Lordships will see from consulting the Act the subsection disapplies the section as a whole to various specified bodies, some of which would be omitted by the noble Lord, Lord Mishcon's amendments, and in addition in paragraph (b) disapplies the whole section to banks which permit withdrawals on demand at more than one place of business. It is indeed a defect of the amendments as drafted that the removal of some of the bodies referred to in paragraph (a) of subsection (3) would be ineffective because they would still be caught by paragraph (b).
It must be said that the removal of subsection (3) would cause some difficulties for those building societies and Trustee Savings Banks which do not have a computerised link-up with all their branches and agents, but the Building Societies Association indicated a willingness to accept these difficulties on certain terms, provided, for instance, that there is a gap, say, of seven days between the service of the garnishee order nisi on the garnishee and the service of the order on the debtor. These are matters which will need to be considered by rule committees in due course.
Other changes which are envisaged are that the Lord Chancellor should have power to add to, or remove from, the classes of debt mentioned in subsection (1), the power being modelled closely on the analogous power which exists in relation to chargeable assets under Section 3(7) of the Charging Orders Act 1979. Any amendments which we ultimately make to Clause 40 will have to be reflected by parallel amendments to the equivalent provision, Section 143 of the County Courts Act 1959. It is my hope to conclude these consultations in time to have necessary amendments to Clause 40 moved by the Government in the Commons. Having said that, I rather hope that at this stage the amendments will not be pressed further.
Lord Mishcon: My Lords, may I immediately make an apology to the noble and learned Lord and indeed to all your Lordships and may I make it perfectly clear that my absence was not due to a garnishee order being served upon me in the precincts of this House!
Having heard the noble and learned Lord say in his closing remarks that it would be appropriate to move a Government amendment in the Commons in order to deal with the subject-matter of this amendment and indeed having heard him say that he might even be extending the advantages and correcting some of the errors that are contained in my own draftsmanship or that of those who advised me on this matter, I am pleased to ask leave of the House to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 8,9 and 10 not moved.]
Clause 54 [Court of civil division]:
5.45 p.m.
The Lord Chancellor The Lord Chancellor moved Amendment No. 11:
Page 39, line 12, at end insert—
("( ) hearing and determining any appeal against a decision of a single judge acting by virtue of section (Exercise of incidental jurisdiction in civil division) (1).").
The noble and learned Lord said: My Lords, I beg to move Amendment No. 11, with which your Lordships should read Nos. 13 and 16. Amendments Nos. 11 and 13 are paving and Amendment No. 16 is a new clause after Clause 57. The purpose of these amendments is to enable rules of court to specify the way in which the incidental jurisdiction in the civil division of the court of appeal that is to say, for instance, whether in court or chambers—is to be exercised. Secondly, the intention is to make more express provision for regulating appeals from the new registrar of civil appeals and from a single judge in the exercise of that incidental jurisdiction. Thirdly, it is intended to improve the structure of the provisions of the Bill regarding the exercise of incidental jurisdiction in the civil division of the court of appeal.
The changes made by the Bill to the way in which matters preliminary or incidental to appeals in the civil division are dealt with owe their origins to the report of the working party on the work of the court under the chairmanship of the noble and learned Lord, Lord Scarman. Copies of the report were recently placed in the Library and the detailed procedures recommended by the working party will be a matter for rules of court. All the Bill does is to lay down a framework in the form of rule-making powers.
At present, the framework is contained in a subsection of Clause 54—namely, subsection (7)—but Clause 54 is really about the composition of a court of the civil division and subsection (7) is really about the exercise of incidental jurisdiction. Not only do these provisions no longer really belong in Clause 54 but the importance of the new departure regarding the exercise of incidental jurisdiction really warrants a separate clause of its own. One purpose is, accordingly, to take the contents of subsection (7) of Clause 54 and place them in a new clause. Subsection (1) of the new clause also enables rules to provide for certain matters to be dealt with on the

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papers—that is, without a hearing. It also enables jurisdiction to be exercised in chambers. The details of the rules of court which may have to be made have yet to be worked out, but it is envisaged that the new registrar of civil appeals will, like the masters in the High Court, exercise his jurisdiction in chambers, for instance on the pre-appeal review contained—for those who are interested—in paragraph 9.3 of the report of the Scarman Working Party, and the single judge will also normally do so.
Moreover there may be minor matters, such as decisions as to whether further documents are required, contained in sub-paragraph (2) of the same paragraph in the Scarman working party's report, which can be reached on the papers without a hearing. But these are matters which will be dealt with in the rules and these will be brought forward in Parliament in due course. All the amendments do is provide sufficient powers.
Subsection (2) of the new clause enables rules of court to provide for appeals against decisions made in the exercise of the incidental jurisdiction. Subsection (7) of Clause 54 as it now stands already enables rules to provide for appeals from the registrar of civil appeals. What is envisaged here is a system similar to that which applies in the High Court, whereby decisions of a master can be appealed to a judge in chambers. Again it will be a matter for the rules but it is envisaged that the more important decisions of the registrar would be appealable to a single Lord Justice sitting in chambers. Subsection (2) also creates the possibility for rules of court to provide for a further appeal to a full court of the Civil Division.
The first of this group of amendments—namely, the one which inserts a new paragraph into Clause 54(4) —provides that in any such case a full court can consist of two judges. Subsection (2) of the new clause concludes by providing that, apart from whatever avenues of appeal may be created by rules, no appeals shall lie from decisions in the exercise of the incidental jurisdiction. That, my Lords, is to ensure that the object of creating the new jurisdiction is not defeated by the arrival before the full court of incidental matters which it is the purpose of the new system to deal with at a lower level.
Subsection (3) of the new clause simply reproduces the second part of the present Clause 54(7). I beg to move.
Lord Denning: My Lords, these amendments concern especially the civil division of the Court of Appeal, which is my special concern. On Second Reading of the Bill in this House there were complaints that the Court of Appeal was worked too hard. It was intimated that I was responsible for the hardness of their work. When I started years ago there were just two divisions of the Court of Appeal; six Lords Justices, three for the common law side and three for the Chancery side. Now we have to have six divisions of the Court of Appeal; that is 18 Lords Justices sitting on civil appeals all the time. We have 1,000 appeals a year. We have excessive jurisdiction confided to us, appeals from tribunals and commissions of all kinds. Our work has increased tremendously. We are just managing to keep level, but only just.
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These amendments will help us tremendously, because we have what we call the interlocutary applications on a Monday morning. We have applications for leave to appeal; we have applications to extend time; we have applications for stay of execution. All take two or three divisions maybe a Monday morning each week. With these amendments those applications can be heard by a single judge or by the new institution recommended by my noble and learned friend Lord Scarman, a registrar of the Court of Appeal. They can be heard by a single judge or by the registrar, and we shall be glad to be rid of them all so that we can get on to our other work. Not only is there to be only a single judge or registrar, but a later amendment would decree that in some cases there is to be no appeal from that single judge. Furthermore, in many cases, if there is an appeal, it is to be to a Court of Appeal of two judges. All I would say to the House is that these amendments, from my position in charge of the Court of Appeal, are greatly to be welcomed. They will help us to get through the great body of work with which we have to contend.
Lord Elwyn-Jones: My Lords, that cri de coeur from the noble and learned Lord the Master of the Rolls obviously makes these amendments even more irresistible than they were after the conclusion of the speech of the noble and learned Lord the Lord Chancellor.
Lord Scarman: My Lords, the only way in which my noble and learned friend Lord Denning has added to the delays of the Court of Appeal is by making that court, through his years as President, the most popular judicial institution in the country. Of course, everybody flocks to it, including litigants. So of course we have this burden of delays, due not to an austere forbidding inability to make up its mind but to exactly the reverse virtues, all three of them.
I can confirm from my own experience the immense waste of judicial time that there is at the moment in three Lords Justices having to sit on two mornings a week, every division except the senior division presided over by the learned Master of the Rolls, Mondays and Wednesday, dealing with matters which could be perfectly easily dealt with by a single judge or by the registrar of civil appeals. I had a little drafting fun on Second Reading with the way in which this very important official, a judicial officer, is entering our law. But now we can see in this and other amendments what a very important role he is going to take, and I can only hope that very great care is taken to appoint a man of suitable calibre.
The Lord Chancellor: My Lords, I am very grateful to the noble Lords who have welcomed these amendments. I am very grateful for the support of the noble and learned Lord the Master of the Rolls and the noble and learned Lord the author of the Scarman working party's report. I do not think I need do more than say how grateful I am to the noble and learned Lord, Lord Scarman, for the work he put into it and to echo what is said by him about the Master of the Rolls. Not only is the Court of Appeal the most important judicial institution in England and Wales, but when I came the other day to lecture to London University on law reform I ventured to say that English law only

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really started to acquire its present coherent form, in spite of all the glory we take in it, when we had a proper pyramidal structure of appeals, and the whole of the coherent body of English jurisprudence on which our courts now work depends upon the work of the Court of Appeal, which is not only fundamental but continuing all the time to make new departures as new situations arise.
I should like to pay my tribute to the Master of the Rolls for the really immense contribution he has made to English law during his lengthy judicial lifetime. When I first went to the Bar one began to think that the common law had no more to say and that perhaps statute was the only method by which changes could be made. We now know better.
On Question, amendment agreed to.
5.57 p.m.
The Lord Chancellor The Lord Chancellor moved Amendment No. 12:
Page 39, line 38, at end insert (", and no appeal shall lie from a decision of a single judge acting under this subsection.").
The noble and learned Lord said: My Lords, the purpose of this amendment is to make it clear that the decision of a single judge of the Court of Appeal whether or not to grant or refuse leave to appeal to the civil division of that court shall be final. Clause 54(6) already provides that an application for leave to appeal to the civil division of the Court of Appeal may be determined by a single judge of that court. In the absence of any provision for an appeal from the decision of the single judge, or a right to renew the application to the full court, that provision already has the effect of making the decision of the single judge final. However, in view of the provision that is being made by other amendments to Clause 54, and the new clause which we have just been discussing following Clause 57, it will enable rules of court to make provision for appeals from the registar of civil appeals and from a single judge in other matters of incidental jurisdiction, and it is preferable to put the position beyond doubt. This is what the amendment does.
The Scarman Report, to which I have already referred, brings out the importance of having an effective filter for appeals to the Court of Appeal, of which the requirement of leave is perhaps the most important. The idea of having applications for leave determined by a single Lord Justice was not in fact a recommendation of that report, but it has been included in the Bill as being the only really effective way of providing a screen for appeals. As is pointed out in paragraph 5 of Lord Justice Megaw's memorandum at annex 4 to the report, there is an increasing number of appeals which are not deterred, by pursuing unmeritorious and hopeless cases, often to the grave detriment of the opposing parties as well as themselves.
The Lord Justice there expresses the view that no small part of the clogging of the machinery of the Court of Appeal is caused by the numbers of such appeals and the administrative difficulties and delays which they cause. The purpose of this screening apparatus would be largely lost if an applicant were entitled to renew his application every time to the Court of Appeal in the event of it being rejected by the single judge, and the need for an applicant to apply
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for leave to appeal to the Court of Appeal itself will only arise if he has been refused leave by the judge, court or tribunal below. This, therefore, will be his second attempt to persuade somebody that he has an argument to sustain. I beg to move.
Lord Denning: My Lords, again I would say this will help us, and I only hope the amendment will be carried.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 13:
Page 39, line 39, leave out subsection (7).
The noble and learned Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
6 p.m.
Lord Mishcon Lord Mishcon moved Amendment No. 14:
After Clause 54, insert the following new clause:
("Compensation
. The Lord Chancellor shall provide compensation to parties to proceedings who have suffered financial loss as the result of the failure of any person exercising a judicial function to try, hear or determine or to complete the trial hearing or determination of any action matter or other proceeding.").
The noble Lord said: My Lords, I beg to move Amendment No. 14. Supreme Court Bills do not come every year before us—indeed, of necessity they have to be spaced over quite a considerable number of years, not because we do not wish to reform matters that may want to be reformed, but only because the legislative programme is always so heavy that it becomes very difficult to deal with these matters. So I do not offer any apology to the House for bringing before your Lordships on this amendment a matter that I had the privilege of dealing with in Committee—and that is the matter of costs which arise on the death or incapacity of a judge before he is able to give judgment.
The fact that litigants are faced with the expense of having to start a hearing all over again has been brought to the attention of many of the authorities in the past, but in particular it came before the Royal Commission on Legal Services, and the spirit of the amendment which is now before the House was, in fact, supported by the Royal Commission at page 180, paragraph 16.19.
So that your Lordships can realise the hardship that may be involved in a matter of this kind—even though it may be rare—I should like to refer the House to a case which occurred quite recently. The parties had a case before Judge Norman Richards, who unfortunately died before he could give judgment. The case was then transferred for hearing before Judge Laughton-Scott, who was taken to hospital after the case had begun and who most tragically died later. When the parties found themselves before a third court it was thought appropriate to apply to the Lord Chancellor's Department for some form of compensation because, quite obviously, the very heavy costs that accrued did so through no fault whatever of the litigants, but purely and simply because of one of those unfortunate situations which can arise in the administration of justice. It was thought by those

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litigants that surely the Lord Chancellor's Department, which after all administers justice—not that it could be blamed for what had occurred—obviously should be responsible in some measure for compensating the parties. The department felt unable to accede to that request.
It is perfectly true that when one anticipates a very long case the parties insure the life of the judge. But that does not occur when a case is supposed to last some three or four days and where the litigants are, if I may say so, of medium means and are not very large commercial concerns. It is that type of case, however rare it may be, that is referred to principally in the amendment, and about which I know very well that The Law Society is extremely concerned.
These are days of austerity. The noble and learned Lord the Lord Chancellor, in courteously writing to me on this matter after I had raised it in Committee, mentioned the fact that for the Lord Chancellor's Department to bear these costs in these days would be—however rare the occurrence might be—a burden that it would not wish to carry and, indeed, could not carry because of the strictures of the present financial situation.
The cost of the issue of a writ these days is £40. I am old enough as a practitioner to remember the days when the cost of the issue of a writ was 30 shillings! However, now the cost of a writ is £40. It is thought that if that cost were merely increased by a matter of a few pence—be it £40.25 or whatever—then without any doubt at all the whole of the costs of this type of amendment could easily be covered. Indeed, it is anticipated by those who have tried to go into the matter from some sort of actuarial point of view that the Treasury might make a profit out of it.
It is not the purpose of my amendment necessarily to increase what is in the coffers of the Treasury, but I think that it is a practical proposition that the writ fee should be increased to cover a contingency of this kind in order that there could be justice when some litigants find themselves, however rarely it may be, with this terrible burden to carry. I am perfectly sure that all litigants would not mind the fact that they were paying possibly for some litigants, if this very small increase in the writ fee were made.
It is because of the type of case that I have mentioned, because of the rarity of it and the injustice of it when it does occur, that I hope that the opportunity can be taken to deal with it in this Bill. I said at the outset of my remarks how rare it is that we have an opportunity to bring in a clause of this kind, but I hope that the opportunity can be taken at this stage of this Bill. I earnestly hope that the noble and learned Lord when he comes to reply will have some consolation to offer to those who are involved in cases that would not normally be insured because they are not thought to be long cases, but where the parties find themselves with this burden to bear which it is so unfair that they should bear when they come to our Courts of Justice. I beg to move.
The Lord Chancellor: My Lords, I wish that I could be a little more agreeable to the noble Lord, Lord Mishcon, than it really falls to my lot to be. This is obviously a very rare case, but still one where the parties have at the moment to bear the premium on an
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insurance of the life of the judge, which they did in the Ocean Island case—at least it was so reported in the press—and as I believe it is not rare for commercial parties to do where the case is likely to be long. I think that the noble Lord, Lord Mishcon, who has been in correspondence with me, to some extent probably exaggerates the difficulties of insurance. It is not, I believe, necessary to subject the judge to a medical examination or for the judge to co-operate in any way.
Lord Mishcon: My Lords, I hope that the noble and learned Lord will forgive me for intervening, but the point to which he has referred was one which I made at the Committee stage and not today. I deliberately did not make that point today because of the noble and learned Lord's comments last time.
The Lord Chancellor: My Lords, it is perhaps as well to have that clearly in mind. It would not, of course, do to limit it to the High Court; it would have to be extended to the county courts, the magistrates' courts, tribunals, and, indeed anyone exercising a judicial function—even to those not appointed by or paid for by the Lord Chancellor himself out of his departmental funds.
I wish in some ways that I could be more forthcoming about this matter, but noble Lords must remember that we live in an age when we are compelled to restrain public expenditure. I am not only Lord Chancellor. I am a member of the Cabinet—for good or ill—and I am constantly being told in this House as I sit on the Woolsack and listen to noble Lords, that they want more money for Zimbabwe, more money for starving people in Africa, more money for the disabled and more money for school books. All those seem to me to be very reasonable demands until one adds them all up together. It is at that point that I ask: "Does this come as high as school books and such things in the order of priorities of what ought to be done?" It all comes out of the Consolidated Fund; it will not come out of my pocket. I rather think that the answer is, no.
Of course, I note the noble Lord's suggestion that all litigants should be made to insure the lives of all judges, which amounts to saying that one could pay an extra sum, whatever it was, on the £40 of a writ, and I suppose on whatever the current fee is for a plaint fee in the county court or whatever the sum is for commencing proceedings in the magistrates' court. There is something to be said for that, but I do not think that I could agree to it. Indeed, I have no authority to do so because it concerns the expenditure of money. I can only say to the noble Lord that there is an injustice here. Perhaps one day someone will be luckier than I and will be able to look more favourably upon it, but I do not think it can be me and I do not think that it can be this evening.
Lord Scarman: My Lords, perhaps I could intervene as one who has had his own judicial life insured by the parties in order to be certain that I ultimately reached a conclusion in the litigation. Purely anecdotically, when the case was over the parties presented me with

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the cancelled life policy. Had it not been cancelled, I think that I would have died rather earlier than it now appears likely that I shall, and my family would have been extremely well-off.
Seriously, there is a problem here which the noble Lord, Lord Mishcon, has exposed by this amendment. But I would respectfully suggest that it is not a problem to be dealt with by means of public funds. There is no difficulty in insuring a judge's life in heavy litigation. The case to which I referred was the longest will case in history, which I tried in 1965; millions were at stake and the costs ran into hundreds of thousands of pounds. The parties had no difficulty in arranging for an insurance as, unlike the Master of the Rolls, who has now left, it took me the whole of the long vacation to write my judgment, and they were a little troubled that something might happen to me in that long vacation. Within my own experience there are instances of other judges having heavy cases in which similar insurance policies have been taken out. Compared with the costs that those policies are intended to underwrite, the premiums demanded are negligible. It seems to me that where the mischief arises—namely, in heavy litigation—insurance at no great cost to the parties compared to the costs which they are already incurring is available.
If the noble Lord will allow me to say so, there is also danger in introducing into our law the possibility of compensation being paid out of public funds as a result of the failure of a person exercising a judicial function to try, hear, determine or complete a trial. One can envisage disputes arising which might not be calculated to maintain confidence in the administration of justice and if one can avoid that by leaving it to the good sense of litigants to insure where it is necessary, I think that in this case discretion is better than valour.
Lord Elwyn-Jones: My Lords, I am bound to say that I have great sympathy with what has been said by the two noble and learned Lords who have just spoken. I do not know what the additional cost on top of the court fees would be, but it would probably be a matter of a few pence. Am I not right in thinking that, broadly speaking, the court fees cover the cost of the court expenses involved in the litigation? I cannot swear to that, but I rather think that they do. Therefore, there would be no trouble for the noble and learned Lord the Lord Chancellor in Cabinet on this point if he were to give way, for I do not think that it would amount to an additional charge upon the public which was unjustifiable in the circumstances. Perhaps the noble and learned Lord would look at this again, because it can cause hardship in a number of cases and would be a convenient way of solving this problem.
The Lord Chancellor: My Lords, I can speak only by leave. I shall, of course, consider the matter. For the reason given by the noble and learned Lord, Lord Scarman, the amendment will not do at the present because it goes much too wide. I personally think that the suggestion that all litigants should insure the very rare cases where there is an important risk may be unjust to ordinary litigants. If the taxpayer does not pay, the ordinary litigant would not
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feel it necessary to insure, and would be prepared to run the risk.
What is really being said—and let us put it crudely—is that when, for instance, the noble and learned Lord, Lord Scarman, or his successors in the lower ranks of the higher judiciary, have to try a very long case where insurance is necessary those who indulge in this type of very expensive litigation should not have to pay more than the ordinary few pence that every litigant has to pay on £40, or whatever the initiation fee is, but the ordinary litigant must pay for them. I am not completely persuaded of the justice of that. I can quite understand that there is a class of case where proceedings abort through no fault of the litigants or the judge, where there may be a real injustice. They may not always be very large proceedings. But, at the moment, I am not persuaded that the proposal will do, whether the taxpayer pays or whether some system or compulsory insurance, by adding to court fees, is to be substituted for voluntary insurance. I will reflect upon this, but I do not hold out much hope at the end of it.
Lord Mishcon: My Lords, I did, of course, say in my few remarks that the Royal Commission on Legal Services had made recommendations along the lines of this amendment. I apologise to the House if the wording of my amendment is not as clear, as precise and as limited as, on reflection, I think it should have been. Therefore, I hope that when the noble and learned Lord at least reconsiders this matter—although he has made his position fairly clear—he will have in mind a more favourable view that might be taken if the wording were tidied up and the limitations were in accordance with some of his own suggestions. Upon that basis, and living as I always do in hope, I ask leave of the House to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 57 [Sittings and vacations]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 15:
Page 41, line 37, leave out ("(a) shall") and insert—
("(a) may provide for securing such sittings of the civil division of the Court of Appeal during vacation as the Master of the Rolls may with the concurrence of the Lord Chancellor determine;
(b) without prejudice to paragraph (a), shall").
The noble and learned Lord said: My Lords, this amendment should be read with Amendment No. 18. These two amendments will enable rules of court to provide for such sittings of the Civil Division of the Court of Appeal and of the High Court to take place during vacations as the Master of the Rolls, in the case of the Court of Appeal, or the head of the division of the High Court in question, in the case of the High Court, with the concurrence of the Lord Chancellor, may determine. I am sure that the merits of this really speak for themselves. I shall expatiate on their beauties if the House desires, but unless I am pressed, I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 16:
After Clause 57, insert the following new clause:
("Exercise of incidental jurisdiction in civil division
.—(1) Any jurisdiction exercisable in any proceedings incidental to any cause or matter pending before the civil division of the Court of Appeal and not involving the determination of an appeal may, if and so far as rules of court so provide, be exercised (with or without a hearing) by a single judge of that court, whether in court or in chambers, or by the registrar of civil appeals.
(2) Rules of court may provide for decisions of a single judge or the registrar of civil appeals acting by virtue of subsection (1) to be called in question in such manner as may be prescribed; but, except as may be provided by rules of court, no appeal shall lie from a decision of a single judge or that registrar so acting.
(3) For the purposes of subsection (1) the making of an interlocutory order having the effect of preventing an appeal from reaching the stage of being heard and determined shall not be treated as a determination of the appeal.").
The noble and learned Lord said: My Lords, we have discussed this amendment. I beg to move.
On Question, amendment agreed to.
6.20 p.m.
Clause 67 [Exercise of High Court jurisdiction otherwise than by judges of that court]:
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 17:
Page 45, line 18, after ("other") insert ("legally qualified").
The noble and learned Lord said: My Lords, your Lordships will note that Clause 67 enables rules of court to be made under which jurisdiction in the High Court can be exercised by, among others, as will be seen from Clause 67(1)(c):
"masters, registrars, district registrars or other officers of the court".
It is the case that in a very limited sphere of taxation of costs, and within certain clearly defined limits, an unqualified person can tax costs. However, on the construction of Clause 67(1)(c) as it now reads, work which should normally be done by qualified,
"masters, registrars, district registrars",
would be capable of being done by apparently unqualified officers of the court.
In the past assurances have been given that judicial decisions in the courts will not be taken by unqualified persons. While there is no objection to retired or part-time fully qualified persons doing this work, as they often do, it should not be available to persons without appropriate qualifications. I beg to move.
The Lord Chancellor: My Lords, this follows on a discussion we had in Committee. I have looked into the matter a little more carefully since then. I find that it has been possible since 1925 for rules of court to provide for the exercise of High Court jurisdiction by other officers of the Supreme Court without any qualification being specified or definition of that term being thought necessary. The original enactment was in Section 15 of the Administration of Justice Act 1925, which was subsequently consolidated into Section 99(1)(d) of the Judicature Act 1925. Clause 67(1) of the Bill is in fact a reproduction of Section 15(1) of the Administration of Justice Act 1956, which again did not qualify the expression "other officers of the court" in any way. So this is in fact really no new start.
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In most cases where the rules of court delegate jurisdiction to officers it is one of the officers mentioned in Schedule 2 of the Bill, but that is not always the case. The main example where it is delegated to officers other than those mentioned in Schedule 2 is in the case of taxation of costs. Order 62 of the Rules of the Supreme Court already gives a certain amount of jurisdiction to taxing officers, who are defined in Rule 1 of that order in such a way as to make it clear that they are distinct from the taxing masters, and in practice they need not be legally qualified.
Another example is to be found in the examination of judgment debtors which, by Order 48, rule 1, sub-rule (1), can be carried out by a nominated officer. And rule 1, sub-rule 4, makes it clear that he may be a non-legally qualified officer not below the rank of a higher executive officer. There has been no apparent dissatisfaction with the way in which officers of these types have discharged their duties.
It is obvious of course that powers of delegation like this must be sparingly used, as they have been in the period since 1925, but the Supreme Court Rule Committee can be relied upon to ensure that jurisdiction is not conferred inappropriately, and to ensure that no function which requires the attention of a judicial officer fails to receive it. A parallel provision is being introduced for the county courts by paragraph 8 of Schedule 3. Hitherto the only delegation of jurisdiction which has been possible in the county courts has been delegation to the registrar. However, as in the High Court the rule committee can, I think, be relied upon to ensure that improper use is not made of the provision. I hope with this explanation that the amendment will not be pressed.
6.25 p.m.
Lord Mishcon: My Lords, I wonder whether I may add a thought in view of the noble and learned Lord's comments on this amendment. May one accept at once that nobody—and I believe that my noble and learned friend Lord Elwyn-Jones made this clear—is grumbling about the taxation of costs and matters of that kind being dealt with by an officer who is not legally qualified? The fact that a situation has obtained since 1925 does not mean that we should not look at it now that we are having a Supreme Court Bill, at a time when both in the High Court and in the county courts, as we said earlier, there is a great amount of pressure of judicial business.
The temptation could well be that, if it is not made perfectly clear that judicial functions must be exercised by those with legal qualifications, there might be a danger of a situation arising where those functions are in fact being carried out by somebody who has not got a legal qualification. The litigants deserve to be protected against that. They are entitled to have somebody with legal qualifications sitting in a judicial capacity.
I am tempted almost to look at the noble and learned Lord and refer to the qualifications he thought were so vital for anybody sitting, for example, as a High Court judge. He not only had to have great character qualifications and legal learning but he had to be an advocate and well experienced in the procedure of the court. What is good for the possibly richer litigant

1325
in the High Court must be also good for those who appear before other judicial officers in the course of a civil process.
What harm can there be in putting in the words "legally qualified" where it is suitable, and where it is clear that all one has in mind is the exercise of judicial functions—and I repeat again that taxation of costs and matters of that kind would not worry anybody if they were dealt with by a competent and not necessarily legally qualified officer—so the rules committee do not have burdens put upon them or powers of observation demanded of them as to what happens in court corridors beyond their normal powers of being able to watch things? Now that we are dealing with a Supreme Court Bill, that should be made abundantly clear in statute. I ask the noble and learned Lord whether he will not at least look at it again, and will not say that what was good from 1925 to 1981 must necessarily be good in the conditions in our courts from 1981 onwards.
The Lord Chancellor: My Lords, I do not think I shall look at this one again. It is putting the clock back before 1925. It is a restrictive practice which is unnecessary. I do not take the point at all, because it is a bad one, that the rich litigant will get different treatment from the poor litigant. On the contrary, all litigants have to come before the taxing masters and all litigants have to, or may have to, require the services of order 48. I think that this is a restrictive practice and unnecessary, and I do not feel that I can give any countenance to it at all. It is a purely retrogressive move.
On Question, amendment negatived.
The Lord Chancellor The Lord Chancellor moved Amendment No. 18:
Page 47, line 38, after ("court") insert—
("(a) may provide for securing such sittings of any Division of the High Court during vacation as the senior judge of that Division may with the concurrence of the Lord Chancellor determine; and
(b) without prejudice to paragraph (a),").
The noble and learned Lord said: My Lords, I have already spoken to this. I beg to move.
On Question, amendment agreed to.
6.30 p.m.
Lord Foot Lord Foot moved Amendment No. 19:
Page 52, line 7, at end insert—
("; or
(f) who has been refused bail by a magistrates court and remanded in custody").
The noble Lord said: I will, with permission, speak at the same time to Amendment No. 20, my Lords. I can deal with this series of amendments briefly because in Committee I moved amendments in almost the same form as they appear here, with one small change to which I will come shortly. The object of the two taken together is to enable a person who is in the custody of a magistrates' court—that is, someone who has been charged with a summary offence and is awaiting trial in a magistrates' court, or a person who is charged with an indictable offence and is waiting for committal proceedings—if he asks for bail and is refused, to make a bail application to the Crown Court instead of the procedure which operates now whereby
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the only form of appeal, as it were, against the refusal of bail by a magistrates' court is by an application to a High Court judge in chambers.
The small difference between the amendments I moved on the last occasion and now is this. Amendment No. 20 would enable a person who wants to make an application to the Crown Court to have legal aid to do so. When it comes to the legal aid provisions, I have made a slight change in that I have provided that legal aid shall be granted if he has already been twice refused hail in a magistrates' court. That is to bring it in line with what f understand is the situation today, whereby if an unrepresented accused person appears before the magistrates and is refused bail, he can then get legal aid for the purpose of making a subsequent application to the same bench of magistrates. However, that difference is only minor.
The reason for these amendments is that it is generally agreed—indeed, almost universally agreed—that the procedure for applying to a High Court judge in chambers through the Official Solicitor, as most often occurs, has proved highly unsatisfactory. I do not know of anybody who is familiar with this matter—anybody among the solicitors' profession or at the Bar or on the bench—who thinks the procedure is satisfactory. Therefore I will not say much more about the general argument, mainly because when I moved amendments like these on the last occasion the noble and learned Lord the Lord Chancellor said he had considerable sympathy for the objectives. He felt unable to give more than sympathy because, with the escalating cost of criminal legal aid over the years—the figures are rather forbidding and frightening—and with the economic restraints under which the Government are necessarily operating today, he could not see that he would be justified in incurring the further burden on legal aid which would be involved if legal aid were provided for an application of that kind.
As I say, the noble and learned Lord was sympathetic. There emerged the fact that there was a wide divergence between the calculations which had been made by the Law Society as to what the potential cost would be and the calculations made by the Lord Chancellor's Department. I suggested then that between Committee and Report there could be consultations and discussions between his department and the Law Society to see whether the figures could be reconciled. The Lord Chancellor arranged for that to be done. Such consultations took place, and fruitful they were. I will not comment on the calculations, except that I think it right to say that the Lord Chancellor's estimate of the cost in Committee was £650,000 per annum, and that was very wide of the calculation that had been made by the Law Society.
I think I need only say about the calculations that have been made, now that we have been able to see the department's calculations, that it would be impossible for anybody to say that the Lord Chancellor's Department have got it wrong. We must acknowledge that they may be right. We may think they have overestimated a bit, but it would be foolish of me or the Law Society to challenge the general conclusions to which his department have come. I will not say more about those figures for another reason; namely, that I have a suggestion to make as to how the matter could be dealt with, and I should be grateful if the

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noble and learned Lord would consider it.
Not only did the Lord Chancellor on the last occasion express sympathy, but he went a little further and said:
"I do not think the situation is quite as serious, therefore, as the noble Lord, Lord Foot, has stated, but I would like to say that I consider there is merit in this amendment and that it is a matter which, given the financial constraints on me, I would like to give effect to at some time".
The noble and learned Lord was good enough to go even further than that in a letter to me, and I quote this from the concluding paragraph:
"As I said in the House, I have sympathy for this proposal. I suggest, however, that it would be inappropriate to include it in this Bill in view of the public expenditure implications and the fact that it is not first among my priorities for extending criminal legal aid. In present circumstances, painful choices of this kind are inevitable. I can assure you, however, that consideration will be given to introducing legislation as soon as resources permit".
That encourages me to make a suggestion. Would it be possible to incorporate the amendment in the Bill, but to leave it to the Lord Chancellor by order to determine when the provision shall be brought into effect? It could be postponed indefinitely. I suggest that has two considerable merits: first, it would put on record that it is the general conclusion of everybody who knows anything about the subject that there should be a right of application to the Crown Court in the circumstances; and secondly, and much more important, it would eliminate the need for any future legislation, because it would simply be brought into effect by the order of the Lord Chancellor. That would involve a great saving of time and trouble. If it is not done, it will be necessary, when resources allow, for somebody to introduce a special piece of legislation, for it to be carried through all its stages in both Houses, with all the claims on parliamentary time, and the expense of it, when all that could be averted if the noble and learned Lord complied with my suggestion. I beg to move.
Lord Elwyn-Jones: My Lords, I congratulate the noble Lord, Lord Foot, on his ingenious suggestion as to how to get over—at any rate for the time being—the financial difficulties that the noble and learned Lord the Lord Chancellor has mentioned, and with which I am very familiar in regard to the cost of legal aid. With regard to the merits of the situation that calls for legal aid for a person who cannot himself afford the cost of going to the Crown Court, I would point out that the person concerned is in custody from the magistrates' court, having twice tried to get bail from that court. In the face of that it seems just that he be given an opportunity to have recourse to a higher court. If there is justice and fairness in that in relation to procedures that are available in courts of higher jurisdiction, then the suggestion that we are considering, if it could be afforded, would seem to be very meritorious. While I am reluctant to add to the statute book a number of provisions which can come into effect at some indefinite future time, I would hope that in the special circumstances with which we are faced—only temporarily, I hope—of having to restrict expenditure considerably, the suggestion of the noble Lord, Lord Foot, will receive sympathy and support from the Lord Chancellor.
6.42 p.m.
The Lord Chancellor: My Lords, I do not at all wish to resile from the basically favourable view that I take of the merits of this proposal, though I feel that they can be very considerably exaggerated. A person can on his existing legal aid go to the magistrates' court for bail, and the fact that he is refused it does not preclude a second or subsequent application, certainly if there has been a change of circumstances, including a committal. On committal for trial with legal aid—which he will receive if he is remanded, because his liberty on the first of the Widgery criteria is in question—he can on his legal aid certificate secure an application for bail to the Crown Court. Therefore, as I see it, the situation in question arises only in cases where either he is on remand on a summary offence, or on remand on an indictable offence but has not yet been committed. It is therefore a fairly recondite situation, and ex hypothesi, from the nature of the amendment, he has been refused bail twice on the merits by a bench of magistrates. Therefore, one can exaggerate the value of the suggestion.
What is more, there remains the recourse via the Official Solicitor, free of cost, to the judge in chambers, which admittedly has to be done by correspondence. I think I am right in saying—though I may be wrong—that in the last 12 months 9,000 people have availed themselves of that course, with more or less success. There is also, of course, legal assistance in order to prepare an application to the Crown Court judge. So this is a matter for which I have a good deal of sympathy, but in regard to which my withers are not wrung as much as they would be if the limiting circumstances did not exist.
I must remind the House of the cost of legal aid; I am talking about criminal legal aid, not civil legal aid. I think that in 1972 it was costing £5 million a year, since when it has been cascading out of control. The cost was £61 million last year, and it is, I think, £81 million—the figure is not yet published—in the current year; and there was an overspending last year. I really cannot afford to add to the costs of criminal legal aid in respect of something so limited and so esoteric, when I am trying to do things of much more importance and value. I said earlier this evening that I was trying to tie criminal legal aid into a new system of procedure, with a view to speeding up the hearing of the High Court. I do not suppose that I shall be able to do that for nothing, because I can see the branches of the legal profession demanding, with some reason, a reconsideration of some of their fees. I shall try to switch from hearing to interlocutory, but I do not know how far I shall be successful in regard to that.
I also have to secure money for what I think is a rather more meritorious item; that of children's aid, under Section 64. I have been very heavily pressed to give civil legal aid—I think it is—for the unrepresented parents of a child involved in care proceedings. I have promised to give first priority to that matter, which will not be cheap, and so I shall have to redeem that promise before the proposal now before us can even be considered. So we are now faced with a potential charge of several hundred thousand pounds uncovenanted on this relatively less meritorious demand, and I do not think that I can do it.

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I should like to thank the noble Lord, Lord Foot, for the extremely fair minded way in which he put his case, and for the extremely ingenious suggestion, which was, basically, that I should legislate his proposal in some form or other with a commencement provision included. In vain is the net of the fowler spread in the sight of the bird. I know what the noble and learned Lord, Lord Elwyn-Jones, would have had to say had our positions been reversed, as they were not so long ago. I consider it a bad principle to enact a provision when one has no immediate intention of carrying it out. It is one thing to include a commencement provision when it is intended to give a little time for the profession to absorb new ideas, or when it is intended to use the commencement provision when certain other provisions come into effect. But it is quite another matter to give a financial commitment with a commencement provision. They always tell me that I am going to retire, but that is quite wrong; sacked I might be, but retire I have no immediate intention of doing. But at any rate either me or one of my successors would be hunted from pillar to post by parliamentary Questions in both Houses as to when the commencement order was to be signed. As I say, in vain is the net of the fowler spread in the sight of the bird. The noble Lord, Lord Foot, would charm a bird off a tree, but not when he has spread his net in front of it.
Lord Foot: My Lords, I should like to make two comments on that speech. The first refers to the merits of the matter. The noble and learned Lord said, rightly, that the number of people who might want to avail themselves of the right to apply to the Crown Court and have legal aid in support of that would probably be between 8,000 and 9,000 a year. That is the calculation of his own department. If it be right that 9,000 people, who would apply if given the chance, are now being thwarted from being able to do so, and have to rely only on the wholly unsatisfactory system of having to go to a High Court judge in chambers, that means that the number of people who are suffering injustice at the moment is about 9,000. I do not see that the injustice is any less because the figure is not 90,000. If 9,000 people are being treated unfairly and improperly, that seems to me to be a blot on the system, and the object of my little amendment is try to put it right.
I spoke on the last occasion about the unsatisfactory nature of the present system of applying through the Official Solicitor to a High Court judge, and I did not expect to have to repeat the point. The system is almost absurd. What happens is that the applicant has to fill out a form saying why he wants bail and why he thinks he ought to be granted bail. That is posted through to the police, of all people, to the prosecution. They then make their comments upon it and put forward their observations as to why he should not be granted bail, and those papers are all posted off to the Official Solicitor, who duly turns up one morning before the High Court judge in chambers and puts the papers in front of him. The applicant has not had any opportunity to answer the allegations of the police; he is not there; he is not represented. Then, eventually, the decision is handed down. It is not surprising, is it, my Lords, that the success rate of that procedure is such that only about 3 per cent.
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of the people who make that application are successful?
Everybody agrees that this is absurd, and it could very easily be put right. It seems to me a pity that the noble and learned Lord, having been so good, having gone so far and having been so sympathetic, should now be drawing back. Quite clearly it would not be at all appropriate—it would be almost lèse-majesté!—to take this matter to a Division, and therefore I shall reluctantly withdraw this amendment, in the hope that as the Bill goes on into the other place better counsels may prevail. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 20 not moved.]
Clause 87 [Masters and registrars]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 21:
Page 58, line 14, at end insert—
("(5A) The Lord Chancellor may by order provide for the abolition of the office of Registrar or Assistant Registrar, Chancery Division; and any order under this subsection abolishing an office may make such consequential or transitional provision as appears to the Lord Chancellor to be necessary or expedient in connection with the abolition of that office, including the amendment or repeal of any statutory provision relating to that office or to existing or past holders of it.
(5B) Any order under subsection (5A) shall be made by statutory instrument which shall be laid before Parliament after being made.").
The noble and learned Lord said: My Lords, this is an important amendment, but I do not think that for that reason it is necessary for me to talk about it at any length. It is important because it involves the power to abolish a statutory office. I do not know whether your Lordships have read it in the papers, but there is now available in the Library the report of a review committee consisting of Mr. Justice Oliver (as he was when he was appointed, Lord Justice Oliver as he is now) and Mr. John Woolf, who conducted a thorough-going review of the procedure in the Chancery Division. I set this up last year because it was apparent to me that all was not well in that ancient and venerable institution of which I am the titular head but of which the Vice-Chancellor is the effective head, and that too much had been going on for too long for it to be absolutely contemporary.
So Mr. Justice Oliver, who was an outstanding judge of the Chancery Division and is now a welcome addition to the Court of Appeal, and Mr. John Woolf, who is the deputy chairman of the Board of Customs and Excise and Director-General of Customs and Establishments, went into the matter and made a report, now available in the Library and published as a Blue Book, Cmnd. 8205, with 88 recommendations as to how the Chancery Division practice could be improved. It is too early to say whether or not all those 88 recommendations are going to be accepted. I have not yet consulted, and I must consult before I even attempt to implement them. I shall have to consult the Chancery judiciary and, because there are some consequentials, probably the other judiciary as well; and I shall have to consult with the profession, both branches, who will no doubt want to make their comments. Therefore, I do not expect that some of the crucial changes can be brought about under 18

1331
months—which, assuming that they were desirable, is longer than I would like. None the less, one must do these things properly.
But a crucial recommendation of this working party was that, instead of seven registrars and six other lawyers in the Registrar's Department, there would in future be perhaps only four lawyers and enough more junior officers, higher executive officers, to sit in court and draft orders, which are the principal functions of the existing registrars. I have no intention whatsoever of abolishing the office of registrars overnight—not until the consultation has taken place and not until necessary amendments have been made to the rules of the Supreme Court afterwards—but quite clearly I should be failing in my duty, with this recommendation in front of me, if I did not take power to do it. The power will be exercised by statutory instrument, and that statutory instrument will be laid before Parliament; but two steps need to be taken before I can do it at all. One is an amendment of the rules of court, and the amendment to the rules of court will be laid before this House and will be subject to control by this House and the House of Commons. So I remain subject to parliamentary control.
I am moving this amendment, which is important, in order to have the power, subject to parliamentary control, to abolish these offices and to substitute the structure which is suggested in the Oliver Report. I am sure that I ought to take this power, but, as I have undertaken to the House, I shall not exercise that power until I have consulted the judiciary and the professions, and until rules of court have been drafted which are subject to parliamentary control. If the rules of court pass the scrutiny of Parliament, then of course the abolition of the offices will be purely consequential, and it will be done by statutory instrument laid before Parliament. But it is an important amendment. I hope I have explained it adequately, and I beg to move.
On Question, amendment agreed to.
Clause 128 [Fees to be taken in Supreme Court]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 22:
Page 73, line 9, after (" Vice-Chancellor ") insert (", or of any three of them,").
The noble and learned Lord said: My Lords, this amendment and the next one, No. 23, allow the concurrence of one of the four heads of division—that is to say, the Lord Chief Justice, the Master of the Rolls, the President of the Family Division and the Vice-Chancellor—to be dispensed with for the purpose of making Supreme Court fees orders and rules about the production of documents filed in, or in the custody of, the Supreme Court. Since this really only preserves the status quo, I think I can probably fairly say that it is only technical, but I had better explain it in a little greater detail.
The present power to make orders by statutory instrument as to fees to be taken in the Supreme Court is contained in Section 213 of the Act of 1925. It vests the power in the Lord Chancellor, who must obtain the concurrence of the judges of the Supreme Court—not the heads of division, but the judges of
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the Supreme Court—or any three of them. Clause 128(2)(a) brings the law into line with what is in fact the modern practice by requiring the concurrence of the heads of division. However, that would by itself create an undue rigidity because if any one of the four heads of division was unavailable (for instance, because he was sick or the office was vacant) it would be impossible to make an order at all. So I have retained the number three and I have substituted the heads of division for judges. That corresponds with what happens at the moment. I beg to move.
On Question, amendment agreed to.
Clause 134 [Production of documents filed in, or in custody of, Supreme Court]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 23:
Page 75, line 24, after ("Vice-Chancellor") insert (", or of any three of them,").
The noble and learned Lord said: My Lords, this amendment is consequential. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 24:
After Clause 136, insert the following new clause:
(" Enforcement of fines and forfeited recognisances
.—(1) Payment of a fine imposed, or sum due under a recognisance forfeited, by the High Court or the civil division of the Court of Appeal may be enforced upon the order of the court—

(a) in like manner as a judgment of the High Court for the payment of money; or

(b) in like manner as a fine imposed by the Crown Court.

(2) Where payment of a fine or other sum falls to be enforced as mentioned in paragraph (a) of subsection (1) upon an order of the High Court or the civil division of the Court of Appeal under that subsection—

(a) the court shall, if the fine or other sum is not paid in full forthwith or within such time as the court may allow, certify to Her Majesty's Remembrancer the sum payable; and

(b) Her Majesty's Remembrancer shall thereupon proceed to enforce payment of that sum as if it were due to him as a judgment debt.

(3) Where payment of a fine or other sum falls to be enforced as mentioned in paragraph (b) of subsection (1) upon an order of the High Court or the civil division of the Court of Appeal under that subsection, the provisions of sections 31 and 32 of the Powers of Criminal Courts Act 1973 shall apply to that fine or other sum as they apply to a fine imposed by the Crown Court.
(4) Where payment of a fine or other sum has become enforceable by Her Majesty's Remembrancer by virtue of this section or section 15 of the Contempt of Court Act 1981, any payment received by him in respect of that fine or other sum shall be dealt with by him in such manner as the Lord Chancellor may direct.
(5) In this section, and in sections 31 and 32 of the Powers of Criminal Courts Act 1973 as extended by this section, "fine" includes a penalty imposed in civil proceedings.".
The noble and learned Lord said: My Lords, with this amendment there should be read a number of others, Nos. 33, 34 and 36. It is a new clause after Clause 136. It provides an up-to-date provision for the enforcement of fines and forfeited recognisances in the High Court and the civil division of the Court of Appeal, and enables a number of sections of two 19th century statutes relating to the same matters to be repealed. The law governing the enforcement of fines and penalties is partly common law and partly a somewhat antiquated statute, the Fines Act 1833. In the relatively rare cases

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where a fine must be enforced, the usual procedure is for it to be certified to the Queen's Remembrancer who issues a special writ known as the Queen's Remembrancer's Writ to the sheriff for the recovery of the money. As a matter of common law, the Queen's Remembrancer can probably adopt other forms of High Court execution. Your Lordships will know that the office of Queen's Remembrancer is an executive office. It originally pertained to the Court of Exchequer, one of the duties of which was the collection of debts for the Crown. Nowadays it is held by the senior Master of the Queen's Bench Division.
The new clause is modelled on Section 179 of the County Courts Act 1959. Subsection (1) provides for enforcement in the alternative as a High Court judgment or through a magistrates' court. The second alternative will be appropriate in most cases. Most of the relatively few fines which have had to be enforced in recent years have been for small amounts for which High Court execution is uneconomic. They can in future be referred to magistrates' courts. High Court execution will remain available for the occasional case of large fines which need to be enforced. In this case the Queen's Remembrancer will be responsible under subsection (2) for taking the necessary steps. The remaining provisions of the new clause are purely technical. Subsection (3) attracts the necessary statutory provisions for enforcement through magistrates' courts where this method is used and the court imposing the fine will have to specify the magistrates' court through which the fine is to be enforced and the period of imprisonment to be served in default. Subsection (4) restates in modern form the effect of Section 28 of the Act of 1833, and subsection (5) is interpretation. I beg to move.
On Question, amendment agreed to.
Clause 147 [Citation, commencement and extent]:
7.3 p.m.
The Lord Chancellor The Lord Chancellor moved Amendment No. 25:
Page 86, line 22, at end insert ("section 27;").
The noble and learned Lord said: My Lords, this amendment has to be read with No. 26 and there are two amendments to Clause 147. They have the effect of removing the restrictions on extent which at present apply to Clause 27, "Prize jurisdiction of High Court", Paragraph 1 of Schedule 4, "Construction of References to Superseded Courts …" At present these provisions are not mentioned in Clause 147 and therefore, by virtue of the concluding words of subsection (4) of Section 4, extend only to England and Wales. The amendments will give them unrestricted effect and therefore, I am told, the senior legislative draftsman at Stormont and the deputy legal adviser at the Foreign and Commonwealth Office agree with the view now taken. The English High Court jurisdiction extends in some sense to Northern Ireland and Scotland as well as to Her Majesty's provision by virtue of the fact that Section 4 of the Naval Prize Act 1864 gives the High Court of Admiralty (which is now the High Court) jurisdiction throughout Her Majesty's dominions as a prize court; and I hope we shall never have any more prize cases. They used to be great fun, but I think this is a wise amendment in case. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 26:
Page 86, line 28, at end insert ("paragraph 1 of Schedule 4.").
The noble and learned Lord said: This is consequential. I beg to move.
On Question, amendment agreed to.
Schedule 2 [List of offices in Supreme Court for purposes of Part IV]:
Lord Mishcon Lord Mishcon moved Amendment No. 27:
Page 88, line 17, after (" Barrister ") insert ("or solicitor").
The noble Lord said: My Lords, after those supreme examples of clarification by learned speeches, I beg to move this amendment which deals with a practical matter. This clause lays down qualifications for some Supreme Court office holders, the details of which are to be found in Schedule 2. Great progress has been made in regard to what I hope your Lordships will think to be a step in the right direction; namely, that where office holders in the courts are being looked at, the question of legal qualification is still necessary but, instead of having that sharp line of demarcation between the solicitor side of the profession and the barrister side of the profession, your Lordships will find that the qualifications in Parts II and III are now made, by and large, either solicitor or barrister. I think that that is a very welcome change. I promise your Lordships I will not go to my old hobby-horse of which I am sure the House will be tired. I merely deal with Supreme Court office holders at this moment and not on the subject of judges.
It so happens—and as I have said, in my view the principle is absolutely right—that, by virtue of those changes, 23 posts are now open to barristers which were not open to them before, and 10 posts are open to solicitors which were not open to them before. This means, if my arithmetic is correct, a net gain to the barrister side of the profession of some 13 posts. The fact that that is so still makes the principle obviously an extremely welcome one.
When one gets to Part I (as against Parts II and III with which I have been dealing) one finds that the two offices there can be filled only by those with one type of qualification; so that progress has halted. Because it is halted, in my view, in a wrong way and at a wrong stage, this amendment is moved, with the support, if I may be allowed to say so, of the Law Society. The Permanent Secretary to the Lord Chancellor has, under Part I, to be a barrister, and the Official Solicitor has to be a solicitor. I am not suggesting that the Permanent Secretary to the Lord Chancellor be a solicitor or that the Official Solicitor be a barrister; I am merely asking your Lordships to agree an amendment which will mean that those appointing to those important positions will have the opportunity of selecting from applicants who may be either barristers or solicitors.
It may appear to your Lordships that it is rather peculiar that someone who is entitled "Official Solicitor" could be a barrister. Let me tell your Lordships immediately that there is nothing in what the Official Solicitor has to do—indeed, he has quite a few barristers on his staff—which makes it necessary

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for him to be a barrister. I suppose your Lordships will immediately think of the somewhat extraordinary situation, as some foreigners think it, that while we have the position of Solicitor-General, I can assure your Lordships that no solicitor can occupy that very high post of Solicitor-General. It must be a barrister, but he is still called Solicitor-General.
What I hope your Lordships will say, and what I hope the noble and learned Lord, after consideration, will say, is that these positions ought to be open to the best applicant and that the positions in Schedule 2—all of them, including Part I—should be open to both barristers and solicitors. I would say at the conclusion of these remarks that those advising me tell me that without any question at all there is no magic whatsoever in the Permanent Secretary to the Lord Chancellor having to be a barrister or having to have intimate knowledge of the practising Bar or of the highest courts. It is therefore in the hope that the whole of Schedule 2 will have the mark of progress upon it—namely, that the applicants for these positions can be either solicitors or barristers—that I beg to move.
7.10 p.m.
The Lord Chancellor: My Lords, I must say that I think progress—if that be right—has halted at exactly the right point. I entirely agree that for most purposes of non-practising legal activities, a legal qualification of either kind is broadly equivalent and there is no reason why it should not be. It is also of course a matter of supreme and rather unholy mystery to the public at large. They simply do not understand that the Solicitor-General is always a barrister and the Attorney-General is never an attorney. They probably do not know but it is none the less the case that the Treasury Solicitor, who is the senior legal adviser to the Crown, is either a barrister or a solicitor and can be either. He does it very well.
You may say: "Why on earth should the Clerk of the Crown in Chancery not be a solicitor?" The answer is this—it is a peculiar one. I wonder how many members of the public, if asked what the Clerk of the Crown in Chancery did as a matter of daily work when he went to the office, would really know. The answer is that he is the permanent secretary to the Lord Chancellor. He is unlike any other permanent secretary because Lord Schuster put him in the schedule to this Bill. Lord Schuster knew what he was doing because it altered his compulsory age of retirement, improved his pension and laid down a minimum professional qualification. These are the basic facts; they are the nitty-gritty of the situation. Nevertheless, those who are eligible for the post will not be simply practising solicitors or practising barristers. There is no more prospect of the most suitable applicant being simply a qualified lawyer of the stipulated standing than there is of the most suitable applicant as permanent secretary to the Minister of Agriculture being other than a civil servant.
The Clerk of the Crown has been essentially a civil servant since the job became what it is; and I have known them all more or less since Lord Schuster—God bless his memory!—who was incidentally a most prominent member of the Alpine Club and a very formidable character indeed who worked with my
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father. Of the past three or four, certainly, Sir George Coldstream practised at the Bar for a very short time. He became a parliamentary draftsman for a time. He stopped practising at the Bar because he became a parliamentary draftsman. He then gravitated to that highest of all possible occupations, a position in the Lord Chancellor's Office. He subsequently became Clerk of the Crown in Chancery because he became the Lord Chancellor's permanent secretary.
The last one was Sir Denis Dobson, who worked with me throughout my last term of office; he started as a solicitor, as a matter of fact. Realising the necessities of the case after he transferred to the Lord Chancellor's Office, he became a barrister. Having been a barrister, he became a Bencher of his Inn and has retired with great honours and distinction. The holder of the present position practised for about six years at the Bar and then joined the Lord Chancellor's Office and now there he is.
Why do I say that he ought to be a barrister? The answer is, because he is part of my "gestapo". It is little known that I am the man with the most data-sensitive material in the world. I have to recommend to the Prime Minister or submit to Her Majesty for appointment the names of all the judges. The job cannot be done by somebody who is not a member of the Inns of Court and probably a Bencher of his Inn. Therefore, I do not want to change that.
Now I turn to the other side of the coin. There, I think that the noble Lord, Lord Mishcon, is wrong for exactly the opposite reason. The Official Solicitor—unlike the Treasury Solicitor—has to be a solicitor and in fact he would be breaking about half a dozen laws if he was not. If we accepted the next amendment we should have to change those laws. The simple reason why he has to be a solicitor is that he does a solicitor's work. He very largely instructs barristers in the ordinary way—for instance, in the Family Division—to appear for unrepresented infants in matrimonial disputes. He is appearing constantly for people in prison who are not otherwise represented. He usually instructs a barrister to do it, and he acts as an ordinary solicitor.
The reason why he has to be a solicitor is that the barrister is totally unsuited to do the job. People always think that barristers can do solicitors' work. I assure you that they cannot. I know this very well because during the war I was constantly having to defend people at courts martial. Sometimes I succeeded and sometimes I failed. One of my great successes was to defend at a court martial a man who was accused of stealing tyres in a street called Straight in Damascus. It was a great success. But, in the main, I was not a great success as a prisoner's friend because I could not do the solicitor's work. I was only used to being an advocate in court. I could not instruct myself and I did not do very well.
Also, I am instructed and I believe that there are various technical objections. If he purported to act as a solicitor being a barrister he would be acting in breach of Section 20 and Section 21 of the Solicitors Act 1974. Conveyancing, which he does, would be much more difficult. A barrister is not an unqualified person as regards the preparation of instruments for transfer but he would not be qualified to receive the purchase monies arising on the sale of land, because

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Section 69 of the Law of Property Act provides that the money must be paid to the vendor or his solicitor.
A next friend or guardian of a person under a disability must act by a solicitor because of the rules of the Supreme Court, Order 90, Rule 2. If the Official Solicitor were a barrister, he would be able to act as next friend only with the mediation of some person who was a solicitor. Of course these things can be changed. A solicitor who is instructed by a receiver for a patient is a solicitor for the patient. Exactly because he is a solicitor, the Official Solicitor is now thus enabled to take on receiverships from the Court of Protection where no other receiver is available. If he were a barrister, the first section which I referred to would put him in a difficulty.
To what purpose are all these proposed changes? I absolutely agree that in the great majority of cases the legal qualification which the solicitor has is broadly equivalent to the legal qualification which a barrister has. But in these special cases I would not willingly agree that the Official Solicitor should be a barrister or that, notwithstanding Sir Denis Dobson having started as a solicitor and having transferred to the Bar, the permanent secretary to the Lord Chancellor should be a solicitor. This is the point at which we have reached the right point of progress and should now take pride in our ancient institutions.
Lord Mishcon: My Lords, I never expected from these Benches to have to express my astonishment at the noble and learned Lord's defence of a closed shop in his own particular profession, and I find it absolutely remarkable that I should have listened to such a speech. Having listened to it I, as always, admire the eloquence expressed. If I may say so, I wish I could equally admire the logic behind the argument.
The hour is getting on and there is an important Bill to follow this. It must be progress if the people who are to fill important positions, provided they have sufficient knowledge—and that will be the task of those who select them—can be taken from the best possible number of qualified people. That is the reasoning behind Part II and III and that is the reasoning behind Part I.
The noble and learned Lord will forgive me if I tell him that the Official Solicitor does not even have to have a practising certificate, and in regard to the amendment I am told that an amendment to the Solicitors Act, if any were in fact needed, would be a very simple one indeed to carry through.
Regarding the noble and learned Lord's reference to his "gestapo", if it is indeed that, I feel I really ought to be withdrawing my amendment because I would not like my side of the profession to be a member of the gestapo. But having said, that and the noble and learned Lord having been so frank with us, I would add that I had the biographies of the last three occupants of the post and all my thunder has been stolen by the noble and learned Lord. I was going to refer to the fact that one of the best known and most loved occupants of the position of permanent secretary was indeed a solicitor who changed over to the Bar purely in order to take that position, without any experience at all of the Bar, without any practice at the Bar, with no experience of the High Court or as a Bencher, such as we have heard about. Really, if it is purely a question
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that the solicitor could not be thought of as one either to be entrusted with confidences or to have sufficient discretion to go into consultation with the noble and learned Lord or with any of his successors on the question of the appointment of judges, I find it remarkable.
As I said, having regard to the stoic, obdurate and always courteous and completely "closed shop" mentality that the noble and learned Lord has shown tonight, there is absolutely no point in my carrying the argument further, except to hope that possibly someone with courage in another place will move a similar amendment and will be able to persuade another place more effectively than I think I would be able to persuade your Lordships tonight, in view of the observations made by the noble and learned Lord. In those circumstances I beg leave to withdraw the amendment.
The Lord Chancellor: My Lords, perhaps by leave of the House I might say this. There is no question of a closed shop because there is no question of belonging to any form of trade union, whether affiliated to the Trades Union Council or not. They are simply members of a profession.
Amendment, by leave, withdrawn.
[Amendment No. 28 not moved.]
Schedule 3 [Amendments of County Courts Act 1959]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 29:
Page 92, line 16, at end insert—
("Provided that if the claim in question arose before the commencement of the Supreme Court Act 1981, an action in rem shall not be brought against that ship unless, at the time when the action is brought, that ship is beneficially owned as respects all the shares therein by the person who would be liable on the claim in an action in personam.").
On Question, amendment agreed to.
7.24 p.m.
Lord Mishcon Lord Mishcon moved Amendment No. 30:
Page 95, line 40, at end insert—
(".The following subsection shall be inserted after subsection (3)—
"(4) Where a judgment or order is made by the court under which a sum of money is payable, such sum (if exceeding the amount prescribed by rule) will carry interest as from the date of entry of judgment until payment at such rate as is prescribed for interest on judgments in the High Court.".").
The noble Lord said: My Lords, again I hope to be brief in moving this amendment. Your Lordships will know that in the High Court judgments carry interest, and the reason for the necessity of that is that quite often fairly substantial amounts are involved. In any event it is only just that somebody who obtains a judgment for a sum of money should be entitled to a rate of interest which is laid down if he is not immediately paid. That is not the position historically in the county courts. They, as we know, are about to obtain jurisdiction—many of us think very properly—which will go up to £5,000 and sums in that region. Therefore, it is thought proper that the county court judgments should feature equally with High Court judgments in being entitled to interest except—and let me say this quite frankly—on judgments for very

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small sums which one thinks conveniently ought still to be exempt.
In view of the parallel jurisdiction that is being given and the encouragement to litigants to go to county courts in regard to their claims, it seems just that the interest should be chargeable and paid by an unsuccessful party. In those circumstances, I beg to move.
The Lord Chancellor: My Lords, this is clearly right in principle. I am told it is defective in drafting, but I was hoping, if the noble Lord would agree to withdraw his amendment, to have an amendment drafted by the time the Bill reaches another place which would cover the principle without repeating the words.
Lord Mishcon: My Lords, in view of the fact that solicitors are supposed to be good at drafting and possibly in some cases superior to counsel, I have been humbled tonight to find that my drafting is not of the best. However, obviously I am delighted with the noble and learned Lord's remarks, and on that basis I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mishcon Lord Mishcon moved Amendment No, 31:
Page 96, line 26, leave out ("annulment in pursuance of a resolution of either House of Parliament") and insert ("an affirmative resolution of both Houses of Parliament").
The noble Lord said: My Lords, this also, I am glad to say, is a short point. Your Lordships will remember that there is a provision in Schedule 3 on page 84 of the Bill which deals with the limitation on the rights of appeal from the county court. The limitation is that no appeal can take place in certain cases which are laid down by the noble and learned Lord the Lord Chancellor, but subject to the approval of the House, because the order would come before both Houses of Parliament, and in certain cases he may decide to recommend that no appeal lies without the leave of the county court judge or the superior court. It is a limitation on the right of appeal and, as such, we ask that it should be by Affirmative Resolution of the House and not by a Negative Resolution procedure.
Some of us remember the burden we are under in this Chamber, if I may say so, in trying, for example, to have a Division when the negative procedure is invoked. It is the tradition of this Chamber that one does not ask for a Division when the negative procedure is being invoked by way of a Prayer of Annulment in regard to a statutory order or instrument. It does seem wrong that where one is dealing with a limitation on a right of appeal that certainly this Chamber should be under that handicap. The amendment merely asks for an Affirmative Resolution because of the limitation of which I have spoken. I beg to move.
The Lord Chancellor: My Lords, I hope to be able to persuade the noble Lord that there is nothing sinister in the attitude I am taking. Perhaps I might begin by reminding your Lordships, if you do not already know, what the status quo is, because the status quo
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is rather peculiar. The status quo is that there is a distinction in the right of appeal from the county court between what are called questions of law and what are called questions of fact. This is supposed to be a very clear line of demarcation, but those who have practised in the law for some time know that it is perhaps less clear in practice than it is in theory.
In questions of law, if the claim is under £20—I am still dealing with the status quo—you have to get leave to appeal. This has been the rule since 1850. In questions of fact, if the amount is under £200 there has been no appeal at all, and over £200 you have an unlimited right of appeal as of right. This is again for a purely historical reason: £20 was rather a large sum of money in 1850 and in the time when the county court jurisdiction was raised, by great efforts, from £100 to £200 it was thought a dreadful thing not to be able to retain your ultimate right of appeal—I think then to the Divisional Court and now to the Court of Appeal—and this provision was written into the law. So now you have embalmed, like a fly in amber, the situation as of 1850, in relation to questions of law, and whatever period it was during my legal career, just before the war, as to questions of fact. This is not really coherent or sensible, and what is now proposed is that there should be a rule-making power.
As the highly excited atmosphere of this House betrays, the great majority of Peers, and, I suspect, the great majority of commoners, would rather go home than discuss and decide by Affirmative Resolution the classes of case, that should require leave to appeal in the county court on rules made by the Lord Chancellor, after consultation with the judiciary and with the rules committees of the various courts. I personally think that the Negative Resolution procedure will be welcomed by the overwhelming number of Members of both Houses.
The noble Lord, Lord Mishcon, is, as a matter of fact, the only Peer in my recollection—and I have been in the House of Lords, on and off, since 1950—who ever questioned the regulation of the rules committee, thereby making new history and that only in this Parliament, and he did it under the Negative Resolution procedure. I rather feel that the Negative Resolution procedure in this kind of question has proved itself, and that no great or serious erosion of our rights under the constitution is involved. I would therefore ask him, as a matter of common sense, to agree that this is not a great imposition by the Lord Chancellor of a new despotism, but is really just a rather wise and, if I may say so, charitable treatment of our fellow Members. I therefore resist the amendment.
Lord Mishcon: My Lords, I hope that I shall never be accused of being uncharitable to my fellow Members. The noble and learned Lord was very kind in referring to the piece of history that I made—not with a very successful outcome. In view of what has been said, and because of the number of those present in your Lordships' House at this moment, it would be wrong of me to carry the matter any further now. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 5 [Consequential amendments]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 32:
Page 107, line 24, at end insert—
("EMPLOYMENT PROTECTION (CONSOLIDATION) ACT 1978 (c. 44)
In paragraph 8(2) of Schedule 11, for "9 of the Supreme Court of Judicature (Consolidation) Act 1925" substitute "10 of the Supreme Court Act 1981".").
The noble and learned Lord said: My Lords, this amendment is pure drafting. It is a routine substitution of a new statutory reference for an old one. I beg to move.
On Question, amendment agreed to.
Schedule 7 [Repeals]:
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 33 to 36:
Page 111, line 19, at end insert—

("3&4 Will.4.c.99.

Fines Act 1833.

Sections 26 to 28 and 30 to 32, except as regards process issued before the commencement of this Act.

Section 33, except as regards matters to which sections 23 to 25 of the Act relate.").

line 30, at end insert—

("22 & 23 Vict. c. 21.

Queen's Remembrancer Act 1859.

Section 23.").

Page 113, line 14, column 3, at end insert ("In section 56(1)(l) the words from "and any onwards.").
Page 118, line 39, at end insert—

("1981 c..

Contempt of Court Act 1981.

In section 15(2), paragraph (c) and the word "and" preceding it.").

The noble and learned Lord said: My Lords, with the leave of the House, I should like to move en bloc the remaining Amendments Nos. 33, 34, 35 and 36, which are consequential. I beg to move.
On Question, amendments agreed to.

Interpretation of Legislation Bill [H.L.]
7.34 p.m.
Lord Scarman: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Scarman.)
On Question, Motion agreed to.
House in Committee accordingly.
[THE LORD NUGENT OF GUILDFORD in the Chair.]
Clause 1 [Aids to interpretation]:
Lord Scarman Lord Scarman moved Amendment No. 1:
Page 1, line 15, leave out ("that time") and insert ("the time when the Act was passed").
The noble and learned Lord said: This is a purely
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drafting amendment. If one looks at Clause 1(1)(b), which provides that one may look at a treaty or other international agreement which is referred to in the Act or of which copies have been presented to Parliament "before that time", the trouble about the drafting is that "that time" is not identified. The purpose of this amendment is merely to delete that sloppy piece of drafting and insert the precise time meant, which is the time when the Act was passed. I beg to move.
On Question, amendment agreed to.
Viscount Bledisloe Viscount Bledisloe moved Amendment No. 2:
Page 1, line 17, leave out paragraph (c).
The noble Viscount said: This amendment seeks to delete paragraph (c) of Clause 1(1) from the Bill. It would, if it remained in the Bill, allow reference to all relevant reports which have ever been laid before either House of Parliament. Though I am speaking only for myself as an unfortunate practitioner who would have to implement this paragraph if it were passed, I am authorised by the Law Reform Committee of the Senate to say that they are unanimously in support of this amendment. I gather that the Law Society takes the same view and, fortunately, at this stage the noble Lord, Lord Mishcon, is here to indicate that that is so.
May I make two preliminary points about this paragraph? First, it applies to all Acts whenever passed and, therefore, to all reports whenever made. When this matter was debated on Second Reading, those in favour of this provision spoke mostly in terms of a modern report of the Law Commission, probably with a draft Bill attached and art Act immediately giving effect to that. That is one instance. But there are many Acts still in force which derive from very old reports, certainly long before the Law Commission came into being, and still more statutes containing provisions deriving from such reports. Under this paragraph all these would be admissible and it would be a mammoth task to track them down.
Secondly, this paragraph applies to all interpretation of statutes; not just to interpretation done in your Lordships' Judicial Committee, in the Court of Appeal or in the High Court, but to an interpretation upon a section given by a solicitor in his office or by a barrister, and to all hearings in lower courts, magistrates' court and county courts. There are a very large number of statutes in day-to-day use on minor matters which derive wholly, or in part, from some report or other.
The reason why I suggest to your Lordships that this paragraph should not remain in the Bill is as follows. Undoubtedly, it will greatly increase the work to be done and the difficulty of giving advice on, or arguing in court about, any point of statutory construction. If that is so, there is no doubt that it will also greatly add to the cost. Perhaps I may say in parenthesis that this is not a case of the legal profession's ganging up to preserve some existing right that gives them advantage. I suppose that we should, in fact, all be deeply grateful if this amendment did not succeed, so that we could scatter references to reports into our advices and charge a great deal more for them. But this is an objection in the general interest, not in the interest of the profession.
On Second Reading it was said that it was wrong to suggest that this paragraph would add to the burden

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or put up the costs, although it seems obvious that if you require practitioners to look into a great deal more material—some of it not easily available—it will cost more when they do so. That was the view of the committee headed by the noble Lord, Lord Renton, who, unfortunately, is not able to be here this evening, and who said, in relation to a clause such as this:
"We think that unrestricted admission of such materials would place too great a burden on litigants and their advisers".
The reasons advanced why this would not increase cost were, first, that the reports would be available in the textbooks and in the legal periodicals. It is perhaps a little optimistic to assume that every practitioner, every solicitor in some out-of-the-way country town has access to legal periodicals, or that he can find the relevant article written some 20 years ago when the Act was passed. But neither textbooks nor periodicals will refer to the older reports in question. It will be many years, even if this clause is passed, before textbooks can possibly catch up with the references that one would need. So one will have to do a great deal of spadework every time one advises on any statute.
Secondly, it was suggested that there would be no extra burden because everybody would be looking at the reports, anyhow, to see the mischief, or the preexisting law, and that therefore the reports would be readily to hand. I respectfully suggest that this is where the provision slightly departs from reality. This point was made by the noble and learned Lord, Lord Simon of Glaisdale. If he took reports, in the days when he was a practising barrister, down to magistrates' courts to address arguments on the mischief of the Act to the magistrates, he was a braver man than either I or the majority of other practitioners.
An argument upon the mischief of an Act is an esoteric point which one makes in an appellate court to bolster up—not wrongly, necessarily—some existing argument. In ordinary cases when one is giving advice on a statute one does not worry about the mischief until one has got to the Court of Appeal at least, and probably to the Judicial Committee, to advance the mischief argument. But this paragraph suggests that you may find the answer to the meaning of the statute in the report itself. Therefore it will become the bounden duty of all practitioners to seek out these reports on every occasion when they have a point of statutory construction to advise on—not even necessarily to get the right answer. It is an advocate's duty to search out any argument which might forward his client's case, so he may well resort to the report to find some loose phraseology which would enable him to press a doubt which would not otherwise exist. This point was made by the noble and learned Lord, Lord Diplock, when a similar Bill was first debated in your Lordships' House.
The second point against the paragraph, in my view, is that the courts—especially the lower courts if this is passed—will in practice end up construing the report to find the intention of the committee which reported, and not construing the statute to find the intention of the legislature. I accept fully that this is not what is intended and not what they in theory ought to be doing. But once they have been shown the report
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they will start ferreting about, and everybody will be discussing what the committee meant. In the end, one will be construing reports and not construing statutes.
The third problem which arises is when Parliament did not intend the Act which they passed to give full effect to the report in question. It may be that the mover of the Bill expressly said that in a particular respect or two he did not intend his Bill to give effect to the report. Or, alternatively, it may be that an amendment was moved which departed from the report. The court cannot know that because it cannot look at Hansard. Indeed, it would be an absolutely insuperable task for it to do so. Therefore, inevitably it will tend to think that the Act was intended to implement the report. In a few cases it will be obvious that it did not: a modern Law Commission report which has a draft Bill attached to it and an Act passed departing in one respect from it. If you compare the two, you will see that the Act in that respect was not intended to implement the report. Equally, if the Act is precisely contrary to the report, you will know that it is not intended to implement it.
One has resort to these aids to construction when there is an ambiguity. If the words are plain you do not need aids to construction. Where there is an ambiguity it is inevitable that the court, faced just with the report, and the practitioner, faced just with the report, will tend to think that Parliament intended to implement the report, when in fact it departed from it. So in many cases I suggest that this paragraph, if enacted, could lead to the wrong result, a result contrary to Parliament's intention, rather than the one intended. This point was forcefully made by the late Lord Dilhorne, when the matter was first before your Lordships.
Fourthly, there is a point which I do not think has been raised before; namely, if this paragraph is enacted, what is the status of previous decisions on statutes? There is in the report, let us say, an existing decision made upon the meaning of a statute which was made without resort to the report. Now, with resort to the report, it may well be that an argument can be advanced that that decision was wrong. Does the court now overturn the old decision? If so, it is a major blow to precedent. Or does the court ignore the report and say, "That is bad luck. The only place that that can be dealt with is in the Judicial Committee of your Lordships' House"? If the second answer is the correct answer, I think that those of your Lordships' House who are members of that committee had better prepare for a rather large quantity of work. If it is said that any previous decision on a statute can be overturned by looking at the report, but only in the Judicial Committee, rather a lot of appeals will end up there.
For all those reasons, I suggest to your Lordships that this paragraph, if enacted, would be conducive to more difficulty, more trouble and more expense than it merits. I beg to move.
Lord Mishcon: We support the amendment and the Law Society support it. I have nothing to add.
7.47 p.m.
Lord Scarman: I do not share the apprehensions expressed by the noble Viscount, Lord Bledisloe. I

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wish to assure the Committee that the legal profession is not really so ill-equipped with the necessary tools of its trade as one might have thought from listening to the anxieties expressed by the noble Viscount.
Already the courts look at relevant reports. They have been doing so for years. As long ago as 1898, in the Eastman case, a patent case, the Lord Chancellor of the day, Lord Halsbury, said that it was a very helpful thing to do. Of course he was living under a law which said that you could look at reports to discover the mischief which Parliament was intending to remedy, but that you could not look at the report to interpret the statute itself. Nevertheless, Lord Halsbury, the Lord Chancellor in the Eastman case, said that he found reports to be extremely helpful in discovering what Parliament intended.
Since 1898, if not before, our courts have been looking at reports, wherever relevant, for the purpose, in the ancient phrase, of "discovering the mischief ". All that this paragraph (c) intends to achieve is that they may look at them not only for that purpose but also for the purpose of interpreting the statute. The truth of the matter—this has indeed conditioned my approach to the amendment—is that it dues not matter very much whether paragraph (c) stands part of the Bill or, as is proposed in the amendment, should be deleted. I am well aware of the opposition to paragraph (c) and of the support for this amendment in the legal profession.
Why does it not matter? It does not matter because the courts already look at relevant reports and will continue to do so, whether this amendment succeeds or fails. It is really beyond common sense to expect courts to close the book with a bang when the recommendation part of the report is reached, having studied it in fine detail when indicating the mischief which the report is recommending should be eliminated by legislation.
I shall not detain the Committee for long. I think it extremely important that this Bill should pass through all its stages as soon as possible and should reach another place. The really vital part of this Bill is Clause 2, which deals with additional principles for the interpretation of statutes and I am glad to see that that clause has attracted no criticism or suggested amendment and therefore I am content not to oppose this amendment.
The Lord Chancellor: Perhaps I may add a word or two—although it is late and I will not say more than a word or two—on what has just fallen from my noble friend on the Cross-Benches. I never cease to be full of admiration and love for the almost fantastic conservatism of my profession and a splendid, persuasive and rhetorically perfect example came from the noble Viscount who sits on the Cross-Benches, and I am also addressing the Law Society through the beautiful presence of the noble Lord, Lord Mishcon. If they really think that courts and practitioners do not read Blue Books in order to find out what statutes mean, they are living in a complete fool's paradise. When I was at the Bar I was constantly having to advise as to the meaning of statutes and as constantly I was finding, as I do in this House and as I do when I sit judicially, that the words of the parliamentary draftsman are
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at first sight totally incomprehensible. I have to explain to magistrates' courts, to county courts, to High Court judges of different degrees of intelligence, to courts of appeal, to the House of Lords, what I have submitted on behalf of my client the Act meant. One has now a range of legislation to look at which it is beyond the wit of man to understand, and particularly when it is incorporated in parliamentary draftsman's language it is even more difficult to understand.
About 10 years ago I was dining with an old friend of mine who is a parliamentary draftsman and he introduced me to his charming son. I said, "You know, the funny thing about Parliamentary draftsmen is that you can recognise their handwriting; you can see who has drafted the Bill. There is one who drafts his Bill like the great pyramid—in great blocks". He said, "Oh yes, that is … "—the draftsman in fact who had drafted the Industrial Relations Act—and he was right. I said to him, "There is another kind of draftsman who drafts his Bill like one of those printed circuits in very sophisticated electrical equipment and manages to fit into the least possible circumference the largest number of ideas". He said, "Oh yes, that's …"—and it was the draftsman who had drafted the European Communities Bill, and he was right. So that I was able to communicate to a parliamentary draftsman exactly who had drafted a particular Bill. It really is very difficult to understand what they mean sometimes. I always look at Hansard, I always look at the Blue Books, I always look at everything I can in order to see what is meant and as I was a Member of the House of Commons for a long time of course I never let on for an instant that I had read the stuff. I produced it as an argument of my own, as if I had thought of it myself. I only took the trouble because I could not do the work in any other way.
As a matter of fact, I should like to let your Lordships into a secret. If you were to go upstairs and you were a fly on the wall in one of those judicial committees that we have up there, where distinguished members of the Bar like the noble Viscount come to address us, you would be quite surprised how much we read. We read the old reports. I remember that there was a case—and if the noble Viscount is interested I can remember its name. It was a common law case of murder. The name was Hyams and if he likes to look at the speeches in the Hyams case he will see a dissenting judgment by my noble and learned friend Lord Diplock. Brilliant! It cites in extenso the report of the Law Reform Commission of 1849 as the basis of his reasoning. The idea that we do not read these things is quite rubbish.
There was one awful case I sat in myself. It was a judicial case; I cannot remember its name but I think it was the NSPCC case, when three members of the court and one of the counsel (but not me) had all sat on the committee which had generated the legislation we were examining. There was Mr. David Hirst from the Bar and if you think that they did not discuss what was really meant, you are living in a fool's paradise. The idea that this is going to generate a lot of expensive work—dear, dear solicitors; dear, dear, barristers, do grow up!
On Question, amendment agreed to.
[Amendment No. 3 not moved.]
Clause 1, as amended, agreed to.
Remaining clauses agreed to.
House resumed: Bill reported with the amendments.

ECC 71st Report: Human Rights
7.58 p.m.
The Principal Deputy Chairman of Committees (Baroness White)The Principal Deputy Chairman of Committees (Baroness White) rose to move, That this House takes note of the report of the European Communities Committee on the proposed accession of the EEC to the Convention for the Protection of Human Rights and Fundamental Freedoms (71st Report, Session 1979–80, H.L. 362).
The noble Baroness said: My Lords, I beg to move the Motion standing in my name on the Order Paper. I should perhaps say that after the display of learning and legal experience that we have enjoyed today it is a little intimidating for a lay person who has never even sat on a magistrates' bench to introduce a discussion on the subject of human rights, and in particular on the proposition that the European Communities should directly adhere to the European Convention on Human Rights. Frankly it would never have occurred to me to do so had I not been privileged to preside over a specially appointed sub-committee of your Lordships' Select Committee on the European Communities.
The basis of our consideration was a memorandum issued for discussion by the Commission of the European Communities which was first examined by our legal sub-committee, with some assistance from other members. I should like to say how much indebted we are to the noble and learned Lord, Lord Fraser of Tullybelton, who directed that preliminary inquiry on which Annex A of the report that we are discussing is based. But the Select Committee were of the view that such a fundamental matter should perhaps be looked at in a wider context, taking into account social and political considerations as well as legal ones.
Further evidence was taken by the specially appointed sub-committee, some on and some off the record. We are extremely grateful to our distinguished witnesses and also wish to record our gratitude to our two admirable specialist advisers, Professor Cornford and Professor Jacobs.
The result of this further consideration was to confirm us in the view of our legal sub-committee that, on balance, no strong enough case had been made out to support the proposal for direct Community adherence in addition to the adherence by each member state, which was the basis of the proposition put forward in the EEC Memorandum. I must say frankly that there were some differences of emphasis among our members, and some, I know, acquiesced in this view with reluctance. But the weight of evidence from persons of great experience in European legal matters was undoubtedly against direct accession by the Community.
I must admit that I myself underwent a process of conversion. I had initially supposed that if the matter were looked at in broad terms some of the technical difficulties envisaged by our legal sub-committee
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could perhaps be overcome, and in a sense, of course, this remains true. Given the political will, no doubt one could remodel the present European judicial institutions operating under the convention and the Community in Strasbourg and Luxembourg respectively. One could amend the Treaty of Rome so that, for example, matters affecting criminal jurisdiction became part of the direct responsibility of the European Communities, which at present they are not, being the responsibility of the member states.
But I found that if asked whether I could with conviction affirm that, if all that would be required to bring the two systems properly in line were accomplished, it would result in more certain justice for individual citizens, or in a more efficacious protection of basic human rights and fundamental freedoms, I simply could not do so. As we say on page xvi of our report, we remained unconvinced that, even if desirable, the game would be worth the candle. We also concluded that it was more urgent to try to ensure that the present European Convention on Human Rights was fully sustained, both by removing the derogations to which it remains subject in certain member states of the EEC and by providing more adequate resources for the European Commission of Human Rights and the European Court of Human Rights, both at Strasbourg, so that they might be able to work more expeditiously.
We emphasised that in our opinion all member states, present and future, should not only be signatories of the European Convention, as indeed all the present members are and the two remaining candidate states are, but that they should fully accept the Strasbourg jurisdiction, including the right of individuals to petition, which is not granted, for example, in France, or, I believe, in Greece. Exceptions such as those made by the United Kingdom relating to immigrants should cease. The Commission in Brussels might have put forward a proposition to make this full acceptance mandatory on member states, but it did not do so. The proposals actually made is that the Community should come into the act itself, and it was to this proposals that we had to address ourselves.
I will leave to my learned colleagues the more sophisticated legal arguments which they are more capable of adducing than I am, but I wish to touch on some further points of elucidation which seem to me important to the lay person. One must recognise in the first place that there are varying definitions of what constitutes basic human rights. Such definitions may differ both in content and in status. The first relevant document in our times was, of course, the United Nations Universal Declaration of Human Rights of 1948. This was a most moving political affirmation by the nations so recently subject to the atrocities of tyranny and war which, as I well recall, made a profound impression at the time by its avowed universality. But it is a declaration, it is not a justiciable instrument.
The European Convention of Human Rights of 1950, which is the matter we are discussing tonight, while not fully legally binding, does provide for a Commission of Human Rights, to examine the facts submitted by an aggreived party and to attempt to reach a settlement, and also a Court of Human Rights, to which admissible applications, if not settled through the Commission, may be referred. One must recognise

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that the process, as I understand it, is one of authoritative review. It is not strictly a court of appeal from the decisions of national tribunals.
In addition, the European Court at Luxembourg, which is the Community's own court, and which is not bound by the European Convention on Human Rights since the Community is not a party to it, in practice takes cognisance of it and has built up a growing body of case law with the provisions of the European Convention well in mind. It has, no doubt, been strengthened in this course by the formal declaration of 1977 by the heads of the Council, the Commission and the Parliament, the three main institutions of the Community, that they attached prime importance to the protection of fundamental rights, as derived from the constitutions of member states and from the European Convention. This was confirmed in 1978 by the Council and later by the then nominated Parliament.
One of the questions in our minds was, would the Luxembourg Court be any more effective a defender of fundamental rights than it is at present if the Community did adhere directly to the convention. I, for one, was not convinced. Nor, as recently as 1976, was the Commission at Brussels, and this was at a time when the Luxembourg Court had a shorter, and of course less comprehensive, record behind it than it has today. But since that date the Commission has changed its mind and put forward the proposition we are now considering.
We were told that this was, in part at least, due to the concern of lawyers in certain member states, in particular in the Federal Republic of Germany, where the schedule of human rights is so extensive that one may even claim a right to the full development of one's personality—a right which I am sure many of us would have wished to enjoy! If it is accepted that EEC legislation takes precedence over domestic law, as it normally is, then, it was suggested, a serious clash of legal loyalties could ensue, and therefore direct accession by the Community was desirable. But, my Lords, this, it seems to me, would not cure the disability of the clash of loyalties, for this reason: that the European Convention on Human Rights being less extensive than the German codes, the difficulty could still arise even after accession. That argument, therefore, seems to me by no means conclusive.
Meanwhile, the more fundamental difficulty is that the areas of activity covered by the Community and those dealt with in the European Convention on Human Rights simply do not coincide. The convention covers the basic individual rights of freedom from arbitrary arrest, right to a fair trial, protection from torture or degrading punishment, freedom from discrimination and the like. Within the Community, however, such matters remain within the jurisdiction of the member states. The Treaty of Rome, on the other hand, is concerned with the establishment of a common market and with the harmonisation of trade. It is true that its provisions have indeed been stretched in various directions not originally contemplated by the first signatories, but its area of competence certainly does not cover the main provisions of the European Convention on Human Rights.
It seemed to most of us, therefore, that if the Community as such became a signatory to the conventon
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it might indeed add to its stature as a European institution, but in our view it could not ensure any greater safeguard to the citizen in the matter of his basic human rights and fundamental freedoms than could the member state to which he belongs. In the course of the evidence proferred, it became clear that a major element in the motivation of some at least who most strongly pressed for direct Community adherence was the enhancement of what one might call the "persona" of the European Community. This appeared at least as important as any belief that human rights would in practice be more adequately safeguarded by Community direct accession.
I must say that since our report was written opinions have been expressed in favour of direct accession by the Economic and Social Committee of the European Community and by the Parliamentary Assembly of the Council of Europe, who were responsible, of course, in the first place for the European Convention. So far as I know, no opinion has been expressed in public by the European Parliament in relation to the current memorandum although, as I mentioned previously, the nominated Parliament considered the matter prior to the direct elections in 1979 and expressed itself at that time in favour of direct accession, with various reservations. Having read the appropriate documents, I must say that I have some impression that the first two bodies mentioned above were perhaps as much concerned with what would appear to be progressive as with a thorough evaluation of what substantive benefits would, in practice, result from direct accession.
The Economic and Social Committee of the Community recognised indeed that direct accession would:
"afford only limited protection for individuals in so far as it [the European Convention on Human Rights] is mainly concerned with civil and political liberties and does not embody adequate safeguards for social rights".
The European and Social Committee went on to refer to the proposal usually canvassed as an alternative to direct accession, namely, that the Community should draw up its own separate inventory of human rights, which could then, of course, include those relevant to the economic and social matters which are its main concern.
The difficulty here, as we have endeavoured to explain in the report to which we are drawing the attention of your Lordships' House, is that agreement on such art inventory might take years to attain. For a start, for example, how in a free society does one enforce the right to work? There are many other propositions of a similar nature which would have to be taken into account. There was, in fact, a European Social Charter intended to be complementary to the European Convention on Human Rights, which was signed in Turin in 1961 under the aegis of the Council of Europe, but as I recall none of our witnesses even mentioned it. We point out in our report that if such matters are to be embraced, it might be better to amend the convention itself, not to formulate a separate inventory subject to different jurisdiction, which would divide the 21 states of the Council of Europe unnecessarily in our view into the Community on the one hand, and the rest on the other. Surely in matters as basic as human rights and fundamental freedoms Western Europe should endeavour to remain one.
I have no doubt that subsequent speakers will seek to enlighten us on why a Bill of Rights for the United Kingdom, so pertinaciously supported by the noble Lord, Lord Wade, and now, I see, attracting a great deal of attention in another place, while it is indeed germane to the subject, is not the issue with which we have been trying to deal in the report which is before your Lordships. Other speakers will also, no doubt, touch on the possible changes which direct accession might bring in the relationship between the Council of Europe's Court at Strasbourg and the Community's Court at Luxembourg. We were warned about the jungle of complications which might ensue by some of our witnesses who were highly experienced in the legal matters of the European court.
Our conclusion is that with the exception of safeguarding the position of the Communities' own employees, which is a special case but which we believe could be dealt with by other means, full observance of the convention by all member states and further development of the hitherto satisfactory case law at the European Court at Luxembourg seems to your Lordships' Committee to be the best course to pursue. I beg to move.
Moved, That this House takes note of the Report of the European Communities Committee on the proposed accession of the EEC to the Convention for the Protection of Human Rights and Fundamental Freedoms.—(Baroness White.)
8.16 p.m.
Lord Wade: My Lords, I should like to thank the noble Baroness, Lady White, for introducing this debate and for outlining her report. I am well aware of the amount of time and work which has been devoted to producing this report. I think that it would be fitting to pay some tribute to the valuable work of the EEC Committees in this House. They provide, if I may say so, evidence of the usefulness of a second Chamber and I think that that is true, whatever one's views may be about the composition of the second Chamber.
So far as the report is concerned, I cannot pretend that the subject is simple. But at the outset I think that it would be useful to try to put the subject of human rights into perspective, and by that I mean that one must recognise the importance of human rights and the role that Western European countries can play in this field. Alas! the world is cluttered up with constitutions containing provisions about human rights and the preservation of individual liberty, and many of those written constitutions contain clauses in the nature of a Bill of Rights. But alas! all too often those provisions are broken or ignored. One can find appalling breaches of human rights in many parts of the world. However, what matters is that the principles should be taken seriously and that there should be some adequate provision for implementation.
I personally believe that it is an important step forward if one can find a way of adopting the concept of a group of nations with collective obligations and a provision for implementation and redress of individual grievances. That idea, which is in embryo—it shows what should be developed—is contrary to the conventional idea that each separate sovereign state
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will safeguard its own citizens and that is all that is required. If that ever were so, I doubt whether it is so today.
The protection of human rights is increasingly international in its implications, and I suggest that that proposition must provide part of the background to the debate that we are holding today. For this reason I think that there is particular merit in the European Convention on Human Rights. In my view it is an attempt to achieve this collective responsibility. It recognises that upholding human rights is not a matter which is the sole concern of one particular nation. The subject of human rights is clearly international in character. Therefore, the strengthening of the European Convention should be encouraged and assisted in every way possible. I am sure noble Lords will agree that these may be platitudes, but it is a point that I think needs stating.
But what are we to do about it? How can the European Convention be encouraged and strengthened? I would not suggest that the procedure at present under the European Convention is perfect. Apart from other considerations, the delays are serious; and I shall return to this matter in a few moments because it is relevant to this debate. But, as the noble Baroness has pointed out, the main proposal before us is that the European Communities should accede to the convention. I think that I am fair when I say that the report points out that if it is thought to be desirable to adopt the principle, then the problems involved in accession could be overcome. I think that I recall words to that effect.
However—and this is, I think, in line with some of the remarks made by the noble Baroness—undoubtedly there are practical difficulties. For example, we are not dealing with one group of nations; we are dealing with two interlocking groups, to both of which the United Kingdom belongs. Furthermore, as the noble Baroness has said, it is true that one group is primarily concerned with social and economic rights, and the other with so-called classical human rights, although in so far as methods of breaking them are concerned, some of them are extremely modern, and unpleasantly so. Nevertheless, there is that distinction.
What are we to do? One suggestion is that there should be two separate categories of rights. That, again, is a point that was mentioned by the noble Baroness. I think that that would be unwise. A somewhat similar idea, though in a rather different context, was discussed at some length by the House of Lords Select Committee on my Bill of Rights. The question was: should we have a new set of principles; should they be drawn up separately for a new kind of Bill of Rights; or should we rely on the principles in the European Convention? It was decided, I think unanimously, that if there was to be a Bill of Rights at all, we should avoid having two sets of principles side by side on this subject of human rights.
There are two good reasons for that. One is the time that would be taken in drawing up a new category and getting it through Parliament. The other is the possible difficulties of conflict between the two sets of principles and the problems facing courts in having to interpret two different sets of principles on human rights. So I think that the decision of the Select

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Committee of this House was right. The circumstances are now not quite the same as regards the European Communities, but I think that the views expressed by the noble Baroness and found in the report are right.
I find myself in agreement with the report on another point. There was discussion on the question whether the accession to the convention could be used as a means of securing a Bill of Rights by the back door. There were some very interesting questions and answers in the evidence (of which the noble Baroness is well aware), beginning with the taking of evidence from Sir Ian Sinclair and others at page 1 and onwards of the taking of evidence. Incidentally, I appreciate the reference to myself made by the noble and learned Lord, Lord Scarman, but time does not permit me to read out the appropriate columns on pages 10 and 11. However, perhaps I could refer to the question as to how the back door process might work. According to my notes—and the noble and learned Lord, Lord Scarman, will tell me whether I have summarised the position accurately—he said:
"It would infiltrate. It would come in by the back door. It would infiltrate and would soon be out of the kitchen and into the front door".
I take his point, but if I were to follow that metaphor, I should be inclined to say that it might infiltrate as far as the kitchen and then get stuck in the cloakroom. However, I shall not pursue that metaphor any further, but I prefer the front door approach.
As has been pointed out, one of the major difficulties arises from the fact that accession will affect only what is defined as "Community acts". I think that the public might find the definition of "Community acts" somewhat confusing. There might even be differences of opinion between the lawyers, but I would not like to suggest that. Clearly, I have to admit that there are legal and constitutional complexities. Yet I believe that most noble Lords would agree that, as the initiative has come from some of our European partners, it would be unwise to spurn this idea altogether or merely to suggest that the proposal should lie on the table. I also think that we should recognise that the strengthening of the convention is in the long-term interests of us all.
I think that I can best sum up my view on this by saying that, however much we may approve of the general idea, we must approach it with sympathetic caution. However, I am anxious to be as positive as I can. What advice ought we to offer the Government under these circumstances? I shall only presume to pick on three short points. First—and this can only be a recommendation because it refers to another country, and powerful though the Government may be, they are not yet able to tell other countries what to do, although they can make recommendations—I hope that the United Kingdom will try to persuade France to agree to the right of individual petition to the Human Rights Commission and the Court of Human Rights. I think that that is a very important point.
Secondly, we must put our own house in order. That in my view, although I know there are differences of opinion, must involve incorporation of the principles of the European Commission into our domestic law. That of course was part of the terms of what I have referred to as my Bill, and it would give those with a
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complaint that the convention has been broken the opportunity to go to a British court. I should mention in passing that the latest report I have from another place—as your Lordships know, the Bill has been passed through all its stages in this House—is that about 160 MPs in the Commons have now signed a motion urging that the Bill should be debated on Second Reading as soon as possible. So there is some support, but we must wait to see what happens.
I have two reasons for hoping that the Government will take this as seriously in the Commons as they have done in this House. One is that it would be a step towards strengthening the enforcement of principles of the European Convention, and the second is that it would relieve some of the pressure on the work of the staff and personnel of the Commission and the human rights court. That brings me back to the point about delays. The delays are undoubtedly a handicap. I think they could be relieved if a number of these complaints could be heard in a British court.
I come to my third and last point. There is obviously much more that could be said. We should encourage the developing jurisprudence of the Economic Community in the field of human rights. I do not myself think that a clash between the Community and the convention is inevitable. But time does not permit me to examine that in detail, much as I should like to do. Therefore, I say in conclusion that I believe there are ways ahead without at present embarking on the complex operation of bringing about the accession of the Economic Community to the European Convention. In the meantime, I should like again to thank the noble Baroness, Lady White, for embarking on the valuable task of bringing this subject to the notice of this House.
8.33 p.m.
Lord Scarman: My Lords, it is always a pleasure to follow the noble Lord, Lord Wade, when one is discussing human rights. It is also a great pleasure to express appreciation and gratitude to the noble Baroness, Lady White, for introducing this debate. I was a member of the legal sub-committee which considered the legal problems to which this proposal gives rise. I am also a member of the Select Committee whose report we are considering this evening. At the outset I must express my sadness that we were unable to support the recommendation contained in this European Commission memorandum that the EEC,
"should adhere without undue delay to the European Convention on Human Rights".
I was convinced, like the noble Baroness and others, that the institutional and technical difficulties which are set out in the report are such that at present, given the state of political will in some member states, it is not practicable to pursue a policy of accession by the EEC to the Council of Europe or to the convention. But that is for me a particular sadness because, like the noble Lord, Lord Wade, I see human rights as something of such infinite value that international action is necessary in order to persuade nations internally to protect human rights within their borders.
It is for that reason that I think it is worthwhile this evening saying some words of praise for the European Commission—often dismissed somewhat

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cynically in public debate in this country as an over-weighted bureaucracy—for its imagination in proposing that the institutions of the Common Market (and that, of course, includes itself) should be subject to the discipline of the European Convention of Human Rights, and subject to the jurisdiction of the European Court of Human Rights. That was a very remarkable initiative indeed, and I think it would be quite wrong for this House not to recognise and applaud that initiative.
Let us look just for a moment at some of the advantages that accession would secure were it institutionally and technically possible. They are very real. First, accession would show a commitment by the European Communities, clear and irreversible, to the cause and protection of human rights. It would do so in the most realistic way possible by embodying the European Convention into the constitution of the European Communities. One could not have a clearer or more irreversible commitment than that. The European Commission wishes that commitment if it be possible, because that is what its memorandum says.
Secondly, if the Communities were to accede to the convention, accession would commit member states, and, perhaps even more important, prospective member states of the Communities, to the protection of human rights. Thirdly, and less often considered but a very real advantage in accession, there would be the effect of accession upon the legislative and administrative organs of the Communities. One of our expert witnesses put it in very effective terms by saying:
"Accession would have a predisposing effect"—
that was his phrase—
"on the work of the Communities' legislative and administrative organs".
The importance of that is that no directive or regulation would be drafted without an eye cocked towards the constitutional obligations protecting human rights. No administrative action would be taken without an eye cocked towards the provisions of the European Convention now part and parcel, by accession, of the constitution of the Communities. Those are very important advantages and it is greatly to the credit of the European Commission that it has seen those advantages, has put them down on paper and has not proposed—the matter has not reached that stage—but has recommended that we should accede if we can.
With the exception of the institutional and technical arguments, which are unfortunately insuperable as matters now stand, the arguments against accession are of minimal importance. They can be analysed as two: first, that it is quite unnecessary; and secondly, that in any event (because the European Convention deals with the classic civil and political liberties and because the Common Market deals with social and economic questions) there is little in the convention of value to the Communities. Let us briefly examine those arguments.
There is not the slightest doubt that as the Common Market develops, so will its administration and laws have a greater impact on the social life of the citizens of Europe. I need mention only a few matters in the Treaty of Rome to show immediately how the potential of the European Convention for the Common Market
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is very real: freedom of movement; the freedom of establishment; rights of residents. Think of the problem in Europe of the migrant worker; think of the problems of the environment. Then we have the protection of communications. All those are matters coming within the scope of the activities of the Common Market, some of them mentioned in the treaty, some not, but all of them requiring a greater alertness for the protection of human rights as we develop the legislative and administrative structure required by the treaty in those fields.
The other argument about it being unnecessary is, again, one which has little weight but is of considerable interest. It is rightly said, "We do not need to embody the European Convention into the constitution of the Common Market because we already have the developing jurisprudence of the European Court of Justice, a jurisprudence which recognises, by decision of the judges, the rights and freedoms protected by the European Convention". It is one of the great virtues of the European Court of Justice, a matter to which I willingly pay tribute, that it has been alert to develop and protect human rights in the jurisprudence of the Communities. Indeed, in Nold v. The European Commission in 1974 it said something which I believe deserves to be quoted. The court said in that case:
"Fundamental rights form an integral part of the general principles of law the observance of which the Court ensures. In safeguarding these rights, the Court is bound to draw inspiration from constitutional traditions common to the Member States. It cannot therefore uphold measures which are incompatible with fundamental rights recognised and protected by the constitutions of those States. Similarly, international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories can supply guidelines which should be followed within the framework of Community law".
That is marvellous stuff and I agree with every word of it, but it is no argument against accession. One cannot infer from this jurisprudence that it is unnecessary to incorporate the convention by statute, so to speak, in Common Market law. The reason is that sooner or later the European Court will be faced with something, in a regulation or directive, which is inconsistent with some provision of the European Convention. Can one be sure that, when the court is faced with some written law and has only to put against it general principles culled from constitutions and international treaties in the way described in the Nold case, it will always prefer the general principle of law? One need only look at national case law, and see how difficult it is to protect general principles against the words of the statute, to understand that there really is here a problem, and it is a problem which would be resolved in favour of the convention if one were to have accession.
It is with sadness therefore that I accept that the institutional and technical difficulties are such that we cannot support this European Commission initiative by saying, "Yes, let us be up now and doing it". What, then, is the course we should take? I wholeheartedly agree with the noble Lord, Lord Wade, that as at present circumstanced, we should not spend time doing the impossible, working for an early accession of the Common Market to the European Convention. What we should be doing is strengthening the procedures, institutions and jurisprudence of the European Con-

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vention and of the Council of Europe.
I can think of a number of measures where strengthening is necessary. The European Commission for Human Rights, as our report mentions, now has something like 2,400 applications a year and a substantial number of those must be considered in considerable detail. Yet its staff is only 20. Let us strengthen the staff of the Commission for Human Rights. Why should we not consider making it a condition for future membership of the Common Market that the member not only signs and ratifies the European Convention but accepts the compulsory jurisdiction of the European Court of Human Rights and the right of individual petition? We could also with advantage see whether the Convention itself could not now be extended to cover certain economic and social rights.
I think that if we were to say to the present member states of the Common Market, as the noble Lord, Lord Wade, suggested, "Please now accept the compulsory jurisdiction of the court, accept the right of individual petition", we should be making a move in the right direction. But I have no doubt at all that if we strengthen the Council of Europe, if we strengthen the convention and the institutions, and if we keep going the interest in the Common Market in human rights, the time will come when the technical and institutional difficulties will melt away. Unfortunately that time is not yet here, but let us now work steadily where we can, so that when the time does arise the opportunity is taken.
8.51 p.m.
Lord Plant: My Lords, I welcome most warmly the interest shown by this House in the question of the accession of the European Communities to the European Convention on Human Rights. In addition, I should like to express my appreciation of the work which the Select Committee on the European Communities has put into this very complex question, and in particular the work down by our chairman, my noble friend Lady White. During my chairmanship of the Northern Ireland Human Rights Commission I had special regard to the European Convention of Human Rights. Unlike two previous speakers, I was not converted by our discussion of legal niceties to the view that the EEC should not accede. So naturally I regret that the committee, at least for the present, is not in favour of the Community acceding to the convention.
I want briefly to put on record the reasons for the Commission taking at the present time an initiative in the field of the protection of human rights. First, the judgment of the German Federal constitutional court, and to some extent the judgment of the Italian constitutional court, in May 1974, posed a threat to the Community's legal order. The German court maintained that it had a right to review Community legislation in the light of the fundamental rights laid down in the German constitution for as long as there were no Community catalogue of fundamental rights corresponding to those contained in the German constitution.
Secondly, the Commission's memorandum is a byproduct of the reflections on enlargement. There is an overriding necessity to maintain and guarantee the Community's identity and in particular its democratic nature and liberal regime in the field of human rights. The need exists to assist in every way possible fragile
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democracies within the Community, particularly in the new member states.
Thirdly, there is an increasing pressure from public opinion, in particular as manifested in the European Parliament, in favour of a written catalogue of human rights binding on the Community.
Fourthly, faced with those various pressures, the political institutions of the Community cannot remain passive. It is not sufficient for them to sit back and rely on the possibility of the European Court of Justice having the opportunity rapidly to develop relevant case law to cover a wide spectrum of human rights, through much tribute has indeed rightly been paid to the court's case law in the field of human rights.
Why did the Commission choose to recommend the accession of the Community to the convention? First of all, the option of drawing up now a special catalogue of human rights was, I believe rightly, eliminated. It is essential to maintain unity in the field of human rights in the whole of Western Europe. The convention is a remarkable achievement of the Council of Europe, and it must not be undermined by the Community developing its own catalogue before adhering to the convention. From a more practical point of view, it is clear that a new catalogue would take decades to draft. I welcome the fact that the committee also shares that view.
I should like therefore briefly to mention the principal arguments in favour of Community accession to the convention. The convention provides a catalogue to which all the member states have already subscribed. Community accession would reinforce the impact of the convention—a unique instrument guaranteeing the respect of human rights. Accession would put the Community in a position to defend its actions challenged before the organs of the convention. Accession would restore the original scope of the convention as regards Community citizens. Henceforth all acts, those of member states and those of the Community, would be subject to Strasbourg's control.
Accession would provide our citizens with a binding written catalogue of human rights, known in advance, which must be respected by all the Community institutions. It would therefore reduce the risk of a challenge to the Community order by the German Federal constitutional court.
If representative democracy or human rights one day come under threat within any of our member states, Community accession could in times of difficulty help to maintain them. It is not impossible that if problems of that kind were to arise within a member state, the other member states might prefer to deal with the problems within a Community framework. Finally, and to my mind of great importance, accession would mean that the activities of the Community would be subject to a specialised international control in the field of human rights.
As regards the principal objections which have been raised against accession to the convention, I should like to say that I believe the Commission has demonstrated that the catalogue is appropriate for, and adapted to, the Community; that the rights protected by the convention could be affected by Community activities; and that the convention does contain certain rights that the Community might violate. Furthermore, the Commission has sought clearly to

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demonstrate that Community accession to the Convention will be relevant only to Community acts as such. It will not in any way change the status of the convention within our member states as regards national acts. Finally, as regards the more technical problems involved, as the committee concludes, they are serious but not decisive—a point of view which the Commission has always maintained.
In conclusion, I would say that I continue to be convinced that at present the most realistic Community initiative in the field of human rights is accession to the convention. As long as the Community remains outside the convention it cannot have any direct influence on the reforms of the institutions of the convention, et cetera. Furthermore, it is simply not within the power of the Commission to oblige the individual member states to accept the individual right of petition. Finally, I would wish to emphasise what my noble friend Lady White has already told the House: that the Parliamentary Assembly of the Council of Europe has voted in favour of Community accession to the convention. I hope that the British Government will do the same.
8.58 p.m.
Lord Fraser of Tullybelton: My Lords, I wish to add only a footnote to what has been said by the noble Baroness, Lady White, and my noble and learned friend Lord Scarman, in commending the report to your Lordships' attention. I was the chairman of the legal sub-committee which gave first consideration to the report, and I was very glad when the subcommittee was replaced in the later stages by a more comprehensive sub-committee appointed for the purpose and not limited to lawyers, because this is not by any means only a lawyers' problem.
I must be frank and say that I approach the consideration of this subject in a frame of mind that is rather different from that of both the noble Baroness and my noble and learned friend. From the beginning I have felt that it would probably be inappropriate for the Community to accede to the convention, because despite what has been said, a large part of the convention has very little to do with the subject matter of the Community. Some of the early and important rights preserved in the convention are rights to liberty, rights to fair trial on criminal matters—things of that sort—which are not within the scope of the Community, are nothing to do with the Community and are quite inappropriate subjects for the Community to have anything to do with. It is quite true that there are other articles of the convention which are appropriate to the Community, and there is a considerable overlap. I quite agree with my noble and learned friend Lord Scarman that as time goes on the Community's scope may expand and the overlap will increase, but at the moment they are not by any stretch of the imagination congruent one to the other.
In these circumstances, it is right, I think, that the report concludes that the benefits of adherence at the moment would be to some extent symbolic rather than real. I think that is so; and, in fact, there was a very impressive expression of opinion by one of our witnesses, Professor James Fawcett, who is himself President of the European Commission of Human Rights, who
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said that in the present state of acceptance of the European Court adherence will be largely window-dressing. Your Lordships will find that on page 44 of the report, I think. Of course, window-dressing and symbolic matters may be very important—I do not say they are of no importance—but one has to consider what is the most effective way of really trying to improve the position of human rights in Europe at the moment, and that is clearly not the way to do it.
It is better, as I think the noble Baroness said, that we should encourage the acceptance of the right of individual petition to the European Commission, which is not universally accepted by all the members of the Community at the moment. There are three member states which do not recognise that right at the moment. There are also ways of improving the effectiveness of the European Court, with its delays, to which reference has also been made. These are practical lines upon which progress could be made much more effectively than by going in for a symbolic piece of window-dressing (if I may use the phrase again) such as is suggested.
The practical difficulties of adherence at the moment are really very considerable, because adherence would mean amending both the European Convention and the Treaty of Rome. Amending the European Convention means getting the unanimous approval of the 21 member states, which is plainly not an easy thing to do because the convention would certainly have to be adapted to suit the Community, which is not a state and would not fit easily into the machinery of the convention. As for amending the Treaty of Rome, we all know that that would be an extremely difficult thing to do, perhaps impossible at the moment. Those are the real reasons against proceeding at the moment which weighed with me, and I was particularly impressed, I must frankly admit, by the evidence given by two of our witnesses.
One of them was Professor Fawcett, to whom I have already referred. He, as President of the European Commission of Human Rights, would be the person, one would have thought, who would have encouraged adhesion at the moment. He came out quite bluntly and said that he thought it would be a mistake to adhere at the moment. That is in his written evidence; I think it is on page 38 of the report. He said:
"I wholly agree with its conclusion"—
this is, of the legal sub-committee—
"that accession of the Community to the convention is not advisable",
and he underlined the word "not". Coming from that source, that is a very impressive piece of evidence, I suggest.
The other evidence which weighed with me was the evidence of the last witness printed in the report, Professor Mitchell, who was the man in favour of human rights in general, very much interested in the Community. He also concluded that it would be a mistake to try to adhere at the moment. Those were witnesses, both of whom one would have expected to come down on the other side. When they came down on the side that they did, it weighed very heavily with me. Just consider what would happen if we embarked upon a process of trying to amend the Treaty of Rome in order to adhere to the European Convention, and

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failed—and I should have thought from observing what goes on at the moment within the Community, that that is by no means an impossibility. It might have very unfortunate results, and make the Community even less harmonious than I am afraid it sometimes is at the moment.
My Lords, even supposing that those hurdles were overcome, there is one real disadvantage which I think would follow from adherence at the moment, and that is that what Professor Fawcett called "the heirarchy of appeals" from one court to another will be to some extent increased. Already we have an almost alarming heirarchy of appeals, starting from lower courts in this country, and then perhaps with a preliminary reference to the European Court and back again here, with a possible petition to the European Commission after all that. The possibility of petitioning the European Commission would be increased in respect of Community acts in a way which is not available at the moment. So the possibilities of long litigation spun out over years would be to some extent increased, and that is to my mind a positive disadvantage of adherence.
I do not wish to sound entirely hostile to the idea; I am not. I think there is a great deal to be said for encouraging a close liaison between the Community and the convention, and that is in fact being done in what seems to me to be a sensible and practical way by the European Court, which, as my noble and learned friend said, has accepted the principles of the convention and said it will apply them. That seems to me to be a satisfactory, slow and pragmatic way of proceedings, much better than getting involved in arguments about amending the Treaty and the convention, which might break down. On that rather more (if I may perhaps say so) sober note, I would also commend the report to the attention of the House.
9.8 p.m.
Lord Avebury: My Lords, I should like to echo the tributes paid by others who spoke of the skilled chairmanship of the noble Baroness, Lady White, and to thank her for giving us the opportunity of debating her report this evening. I started off as she did hoping that I would come to the conclusion that this proposal should be recommended to your Lordships, and I was disappointed, after listening to all the arguments over a period of several months, that I had come down on the same side as she had and conclude with reluctance that the proposed accession of the EEC to the European Convention on Human Rights would not have the beneficial effects claimed for it and which the noble Lord, Lord Plant, still thinks it might have. If one considered that the proposal was going to assist in the maintenance of democracy in member states, if one thought that it was going to reinforce the impact of the convention or to provide the citizens of all the member states with a catalogue of human rights which had to be accepted, then there would have been no doubt in our mind. We should have welcomed the proposal with open arms. But, on the other hand, if we find, as the noble and learned Lord, Lord Fraser of Tullybelton has said, that the effects of accession would be largely symbolic or even, some would say, cosmetic, and designed primarily to improve the image of the Community but having very little practical
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benefit for individuals in the member states, then we must ask ourselves whether this is the best way of extending human rights in the Community.
What I believe it seems to boil down to is the remote, almost unthinkable, possibility that an EEC directly-applicable instrument might contravene some provision of the European Convention and a citizen who is wronged by the effects of that instrument would have no adequate remedy. If one is talking about an instrument which has to be ratified by the member states, then the first line of defence is that Parliament would refuse to enact that instrument; and if the vigilance of your Lordships was eluded by the instrument, the citizen would have a right of action against the Government at Strasbourg and the court would have the power to get that instrument repealed. So we are not talking about instruments that have to be enacted by member states but only about those instruments which are directly applicable and the institutions of the European Community, the Council and the Commission have power to legislate directly only on certain limited matters. In doing so, they cannot require member states to do anything which would infringe any of the provisions of the convention because of the effect of Article 234 of the Treaty.
If they did try to do so, then reference could be made to the European Court at Luxembourg; and that court has declared—and the noble and learned Lord, Lord Scarman, quoted its Declaration of 1974—that it would treat the convention and the decisions made under it as guidelines which it would follow in its task of interpretation. Although it is not obliged to do so, as the noble and learned Lord, Lord Scarman, pointed out, it is possible that in future the Luxembourg Court might decide that a written provision should take precedence over general law. I must say that it is hard to imagine why it should do so.
The only important example given of alleged violation of the convention rights by the Commission to your Lordships' committee was the case of Alvis in 1963. Mr. Alvis was on the staff of the Commission and was dismissed because he was an alcoholic, and, although his dismissal was said to have been amply justified, he was not given a proper hearing, which was a violation of Article 6 of the Convention which says that everybody is entitled to a fair hearing in determining his civil rights. The solution to the problem of Mr. Alvis is the one mentioned by the noble Baroness, Lady White: that the commission should include an appropriate reference to the convention in the terms and conditions of employment of its employees. Then, apart from the Commission's role as an employer, it is highly improbable that any of its other acts would come into conflict with the convention.
The convention deals mainly with what have been termed the classical civil and political rights: the right to life; to freedom from arbitrary arrest and imprisonment; the right of a fair trial, of freedom of expression, and so on. Those cannot be affected by the acts of an entity which is not a state and has few of the attributes of a state, such as the power to detain in the exercise of criminal jurisdiction. It takes great imagination and ingenuity to construct theoretical examples of cases where the Commission would be able to do something which did contravene the convention.

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Apart from the one case of Alvis, the report does not mention any other. There is the possibility which the noble and learned Lord, Lord Scarman, mentioned that in future, as the Common Market develops, it will have a greater impact in certain areas that he mentioned, such as freedom of movement, right of residence and the freedom of establishment. Only the other day your Lordships were discussing a report of another sub-committee on a proposal to extend the rights of residence. That is an interesting example. Supposing the recommendation that the right of residence should be extended to non-workers were accepted and we were to allow those people to come here and to be given this right under the proposal—students, the retired, and so on then it would have to be done through an amendment of the immigration rules, not the Act. It could be done by the Secretary of State laying amendments to the immigration rules which would then require the approval of both Houses of Parliament.
Those rules would themselves be subject to the jurisdiction of Strasbourg and, as we know, there are cases that have been brought before the European Court in the past and there will no doubt be cases in the future arising out of the immigration rules. The noble and learned Lord, Lord Scarman, will recall that the last time we discussed changes in the immigration rules was when certain women either not born in this country themselves or whose parents were not born here were deprived of the right to have their spouses take up residence with them in the United Kingdom. That proposal is likely to result in a number of cases being brought before the European Commission and, in the end, to the Court.
So if the further proposals are brought forward by the Community for extending rights of residence, in a similar way they would have to be enacted by statutory instruments in both Houses of Parliament and the same considerations would arise as I have just mentioned. The objections to accession, which have been referred to by a number of noble Lords already, are really numerous and formidable. I agree with the noble Lord, Lord Fraser of Tullybelton, that particularly the evidence that was given by Professor Fawcett—and I also found that of Mr. Anthony Lester, whose experience is probably unrivalled in the European Court—clinched the matter so far as I was concerned.
I respectfully agree with Mr. Lester when he suggests that priority should be given to improving the existing machinery of the convention. Whatever anybody may say, I think that it is inevitable that if the proposals for accession were to be pursued, they would have the effect of distracting attention from the other issues of far greater importance. These have already been mentioned.
To summarise them, they are: first of all to reduce the backlog of cases by increasing the resources available to the Commission. I agree that it is absolutely scandalous that cases should take as much as eight years from the initial complaint to the final determination of the court. I must declare an interest, as both the litigant in person against Her Majesty's Government, and as a representative of someone who has a complaint. I am acting on his behalf. I consider that justice delayed is justice denied. The
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many years which elapse before a person can get satisfaction in the European Court is tantamount to a serious denial of justice. Therefore, I agree with those noble Lords who have suggested that one of the first priorities should be to increase the resources available to the Commission.
I warmly welcome any pressure that can be brought to bear on France—the odd man out—to grant individual rights to petition. As the noble Baroness, Lady White, mentioned, if Greece also follows that bad example one hopes to persuade them also to adhere to the convention. Also, as has been mentioned, it should be made a condition that future states acceding should grant rights of individual petition and to see that there are effective remedies before national tribunals for claims of violations, which in the opinion of this House could be realised by incorporating the convention into our domestic laws. My noble friend Lord Wade has so persistently and effectively advocated this. I was very glad to hear him say that this is now gaining a tremendous amount of support in another place.
That is a proposal which has an enormous effect for the better on the lives of individuals in this country and will certainly enable many of the cases which go to Strasbourg now, and which give rise to these inordinate delays which I have mentioned, to be dealt with in the English courts. Finally, to widen the scope of the convention so that it approximates more closely to the United Nations covenant on civil and political rights.
I can only endorse the main conclusions reached by the committee when it said:
"But if the prime consideration is the protection of human rights within the Community, rather than the role of the Community in the protection of human rights, then the Committee feel bound to endorse the view put to them that reform of the procedures of the Convention itself, increased resources for its institutions, especially the Human Rights Commission, and full acceptance of its jurisdiction by all the contracting parties should enjoy a higher priority than accession to the Convention by the Community.".
9.19 p.m.
Lord Goronwy-Roberts: My Lords, my noble friend Lady White deserves our gratitude for a speech which combined her warm sympathy for human rights and the quite admirable clarity with which she dealt with the complex issues which are the subject of this very important but rather difficult report. I think her speech effectively expressed the views of most of us, at least at this stage in the continuing public discussion, which I believe the Government, like the Opposition, quite rightly expect to go on for quite a time before the issue is finally decided. I would certainly join with my noble friend in thanking the sub-committee for the care with which they considered these matters, assembling valuable testimony and stating a number of balanced conclusions.
One main question—probably the main question—is this. How can human rights be best protected within the Community? Is it by immediate accession of the Community to the European Convention, as the European Commission and the Council of Europe, with a certain parental pride, as my noble friend suggested, and others propose? We have heard a very powerful argument in favour of that course tonight from the noble and learned Lord, Lord

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Scarman, who, however, deferred to the circumstantial inhibitions which the report so clearly deploys. There are advantages and difficulties in following that course—that is the accession of the Community as an entity to the convention. One advantage would be that certain gaps in the protection of human rights by the Community could then be made good. But the report describes these deficiencies as "minor" and the committee heard very strong evidence from experts that the considerable political resources which might be necessary to achieve quite limited benefits would be much better devoted to more pressing needs in the field of human rights.
Still, for those who regret, as the noble and learned Lord, Lord Scarman, said, our inability at the moment to press forward in support of accession, the report specifically does not rule out for the future the accession of the Community to the convention. In the meantime, as I understand it, the report observes—and I quote from paragraph 33—that
"much would be gained if all present and future Member States could be persuaded to accept fully the Strasburg jurisdiction—that is the individual right of petition to the European Commission on Human Rights and the compulsory jurisdiction of the Court—and if such acceptance should in future became a condition of membership of the Community".
Your Lordships will have noted the use of the caveat, "could be persuaded to accept". Indeed, it would certainly be necessary to obtain the agreement of each member state to any such arrangement. Some no doubt would find it difficult to agree—some find it difficult to agree now, especially about the right of individual petition—but there is absolutely no doubt, as the report says so strongly, that the member states should all move in the direction of a high common standard of human rights, particularly in view of the enlargement of the Community, and indeed in view of the possible further enlargement of the Community—who knows?
The report comes down firmly against any attempt to frame a separate code of rights for the Community. That would indeed tend to a proliferation of codes, and in the first part of the report there is a very interesting section on proliferation. In this field, two is more than enough: two begins to suggest dichotomy. In any case, the Treaty of Rome, on which the Community was founded, offers a questionable basis for the further provisions that would be necessary to create a separate catalogue of human rights.
My noble friend quite rightly suggested that it is possible that Article 235 is sufficiently elastic, even for a provision of this magnitude. In this connection, it is worth quoting paragraph 33(ii) of the report, which very succinctly sums up the right conclusion in this matter. It reads:
"In our view it is essential that the convention should remain the common code for all of Western Europe, and if changes and additions are to be made they should be made within the convention."
That is a practical proposition, partly because the task of amending or expanding the existing convention would be considerably easier than the task of negotiating a quite new catalogue of human rights for Europe—a separate Community code; and, also, partly because the convention lends itself more easily, and this is perhaps a personal point, to exception and reservation.
I am prepared to defend the principle of exception
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and reservation, if it needs defending, because exception or reservation is in practically every case, in my limited experience, forced upon participants and signatories. The right of reservation must continue, at least in the short or middle term, as a practical necessity. There is hardly a country in Europe which has not affixed its signature to some international agreement or other —indeed, to the convention—that has not itself reserved on some particular point.
My concluding remark is this. While there is clearly great advantage in a European Convention on Human Rights, especially as the Community itself expands, it must always be seen as a complement to international agreements and not as a substitute for them. My noble friend rightly reminded us that the UN Charter gave birth in 1948 to a declaration which has not been developed into anything of a justiciable character. Nevertheless, there are a number of agreements, plus declarations of that kind, which have this status—I almost said authority, but that would not be true in every case—of international acceptance, so far as it goes. It would be well for good Europeans to take care that in developing the European code of human rights, whichever form it takes and in whatever way the Community and its institutions play a role in applying such a code, it will always be seen as not an end in itself.
If I may say so, without presumption, I think that my noble friend Lord Wade came very close to it when he said: Let us have a substantial step forward to a common high standard for Europe. I would join him by adding: And let that substantial step forward, whatever it is, not be the final step. It is possible for Western Europe—we talk of Europe, but this is Western Europe—to be a kind of legal soldering iron, as it is possible for it, in the economic sense, to be successful within certain territorial bonds; when, in fact, the traditional mission of Europe and the reason for strengthening it through integration, economically and politically—above all, politically—is to go out across the five seas and carry the highest standards of civilisation to the far ends of the earth.
Whatever we can do to strengthen the protection of human rights in Europe is of course a good thing in itself. This is the matrix of reform and change, and has been for centuries. But we cannot stop there. Human rights apply in every part of the world, or they should. Europe has a duty to set its own house in order, in order that it can continue its age-old mission of civilisation throughout the world. The role of Europe is to liberalise itself by its own efforts and the world by its example.
9.31 p.m.
Lord Trefgarne: My Lords, may I start this evening, as I started yesterday evening in my Answer to the Unstarred Question of the noble Lord, Lord Hatch of Lusby, with an apology for my voice. If I finally fade away, my noble friend Lord Long will stand up and read out whatever happens to be left of my speech.
This has been a most useful and instructive debate and your Lordships are, as usual, indebted to the Select Committee on the European Communities, under the chairmanship of the noble Baroness, Lady White, and to its sub-committees, especially that chaired by the noble Lord, Lord Fraser of Tullybelton,

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for a clear and comprehensive study of a very complex subject.
I should perhaps make clear now that Her Majesty's Government have not yet taken a definitive attitude on whether or not the Community should accede to the European Convention on Human Rights. There ought first to be a wider public debate throughout the Community on the proposals and we would like to hear more of the views of other member states both of the Community and of the Council of Europe. In their report, the Select Committee say they have sought to explain the arguments for and against accession in untechnical language. I suggest that they have succeeded admirably and their report will no doubt be used by others as a guide for their own discussions.
The Government, like the Select Committee, see a number of serious difficulties in the proposal. We believe that it would require amendment to the treaties. The use of Article 235 as a legal basis for the Community's adherence would not be justified because, although every member state is firmly committed to the protection of human rights, it cannot be said that this is an objective of the Community as laid down in the treaties. It also seems to us that a number of legal and institutional difficulties have been underestimated in the Commission's memorandum (but have been given a full airing in the report), and some of these would require complex arrangements to be agreed within the Community and with the other member states of the Council of Europe.
We are particularly concerned that accession might undermine the autonomy of both the European Court of Justice in Luxembourg and the Court of Human Rights in Strasbourg, and result in confusion and lengthy litigation. Each of these courts is at present the supreme arbiter in its respective field. References from one court to the other would lead to further substantial delays in litigation, which may have been delayed already by reference from a national court. It is no exaggeration to conclude that years, not simply months, could elapse before a final judgment could be given. The noble Lord, Lord Avebury, referred to this during his speech and I have a great deal of sympathy with the problems which he described.
Another difficulty is that there is no provision under the Human Rights Convention whereby a national court may refer directly to the Human Rights Court a question of interpretation or application of the convention, in the way that references to the Luxembourg Court are made under Article 177 of the Treaty; this could lead to the Luxembourg Court being asked to interpret the convention, resulting in two divergent streams of jurisprudence. Some difficulties could also arise because the pattern of reservations, derogations and ratifications of both the Human Rights Convention and its several protocols is not uniform among the member states of the Community. France has not, for example, as has already been mentioned, recognised the competence of the Commission of Human Rights to receive petitions from individuals, and the Netherlands, Greece, Italy and the United Kingdom have not become parties to Protocol No. 4 which is concerned, inter alia, with the right to liberty of movement within the territory of a state and the right to enter and
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leave the country of one's nationality.
We do of course have a fundamental national interest in the protection of human rights, and our dedication to the cause is not in question here. Nor is that of the European Community, whose concern for the protection of human rights has been made clear at the highest level by a joint declaration in 1977 from the Parliament, Council of Ministers and Commission, and by the Heads of Government of the Community meeting at the European Council in 1978. The Luxembourg Court has also shown that it takes practical account of human rights principles in its judgments.
We accept that a case could be made for a more formal and legally binding involvement of these principles in Community law and it has been suggested that, given the political will, a way could be found. But I wonder whether this is in practice the best way of ensuring adequate human rights protection within the Community; the Select Committee's report reinforces these misgivings, and suggests that other means such as supporting the development of the jurisprudence of the Luxembourg Court in relation to human rights, could be more effective.
From within the Community only France has so far expressed publicly opposition to the proposal. I have heard of no reaction from non-Community members of the Council of Europe, but they might well resist amendment, for example, to Articles 20 and 38 of the convention which prescribe that no two members of the Human Rights Commission or court may be nationals of the same country; and these provisions would probably need to be amended if the Community's candidates were to be appointed as members of the Commission and court. And is the European Convention really relevant to the activities of the Community? Large areas of the convention's provisions lie totally outside the Community's activities. The noble and learned Lord, Lord Fraser of Tullybelton, mentioned that point in his speech.
I have spoken so far mainly on the difficulties and dangers for the Community in the proposal under discussion, but are there not also difficulties and dangers for the convention and its institutions? I have already mentioned the possible undermining of the autonomy of both the courts. There is also the point that the European Commission of Human Rights and its court already have more than enough to do, and extra cases concerning the European Community would exacerbate the problem. Indeed, Professor Fawcett says in his evidence—and I agree that his evidence was indeed impressive—that the convention is badly in need of restructuring, and as President of the Commission of Human Rights, he is in as good a position as anyone to know. Mr. Anthony Lester also pointed to the dangers for the convention in his evidence, saying that the protracted accession negotiations would distract attention from the real improvements which need to be made in protecting human rights in Europe. I understand that Mr. Lester is an experienced practitioner at the Human Rights Bar, if there is such a thing.
It has been suggested that Community accession should be a first step towards the elaboration of the Community's own catalogue of fundamental rights. But even if the political will to negotiate the Community's accession existed on the part of each of the

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21 members of the Council of Europe (and this includes, of course, all the present members of the Community), the negotiation of amending protocols and subsequent ratification by each state would be a very lengthy process. The Community today has plenty of pressing problems to solve, on matters which are more directly relevant to the aims of the treaties than this proposal, whose benefits, if any, will be largely indirect and symbolic. And if we were to launch ourselves into this complex process which would demand a great deal in terms of manpower and money, could we be sure that our time and effort were in fact well spent? That the benefits to citizens of the Community would be commensurate with the expenditure of money and diversion of effort involved? The Government have not yet answered these questions, but I am bound to say, in the light of this report, that the case needs to be proved before we decide to turn to this, when the Community has so many other important tasks before it.
The European Convention and other international covenants already overlap in the field of human rights and discrepancies between them may cause confusion. Yet another catalogue would compound this confusion, and it would surely be better to concentrate our efforts on improving existing instruments and urging wider participation and better enforcement of them.
I make no apology for the fact that many of my arguments are already set out in the report of the Select Committee—that report is so comprehensive, that I could hardly have done otherwise, but it is significant that the committee reached much the same conclusion as that to which our own examination seems to be leading us: that the proposal is fraught with difficulties and dangers that may easily outweigh the benefits. The Government must, therefore, agree with the Select Committee when they ask: "Is the game worth the candle?".
I am grateful to your Lordships for your contributions to this debate tonight, and am sure that our partners in the European Community will examine closely our words, as well as the report itself, in considering their attitudes to the Commission's proposal. It would, I think, be unrealistic to expect any early progress on this problem; the European Parliament has not yet debated the proposals, and it will then need to be examined in great detail by a group of experts from all the member states. Within the Council of Europe framework, the Assembly debated the proposals last month and voted in favour, although I wonder whether they were then fully aware of all the difficulties.
As I have stressed, there is no doubt whatsoever about this Government's commitment to the protection of human rights. I hope, therefore, that your Lordships will not consider that the Government's attitude to the question of Community accession to the convention is unduly negative, even at this preliminary stage, but the obstacles are daunting, even to the most hardened human rights optimist.
Baroness White: My Lords, I would like most sincerely to thank every noble Lord who has taken part in this debate and also to express my gratitude for the very kind remarks that have been made both about the work of the Committee and the work of those who
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took part in it. I would hope very much nevertheless that we shall have made plain—with, I think, the principal exception of Lord Plant, who seems willing to overlook many of the practical difficulties which some of the rest of us find so daunting—to all concerned who read our debate, as I hope some may, that we are genuinely concerned about the problem of the maintenance of human rights.
I would particularly, if I may do so, address the Minister. We are very grateful to him for coming tonight and hope he will have a restful, recuperative weekend; we do appreciate his coming. I hope very much that he will take seriously the point several of us have made—that there is a very serious lack of resources for the existing institutions which are responsible for implementing the present convention. This has nothing directly to do with whether or not the Commission accedes, but we had very forceful evidence indeed that there is a lack of adequate resources. The noble Lord, Lord Avebury, in particular referred to the really quite intolerable delays. I would hope very much that this particular message will get home, that the Government, while accepting the general tenor of the report, which we appreciate, will nevertheless take seriously this question of resources. We may or may not be able either to improve our own position with the fourth Protocol or to influence our fellow members, but we should really endeavour to take seriously this question of the proper function and the reasonable expedition of the institutions in Strasbourg. That would be the best reward for the work of this Select Committee and all those who helped us and the witnesses who appeared before us. I would like to thank everyone very much indeed for taking part in the debate.
On Question, Motion agreed to.

County of Avon Bill [H.L.]
Bill committed to a Select Committee on Unopposed Provisions.