Lords Sitting of 24 November 1981

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Liverpool
The Viscount Chandos—Sat first in Parliament after the death of his father.

Legal Services: Complaints Machinery
Lord Molloy: 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 consider establishing an examining board comprising representatives of the office of the Lay Observer and the Law Society, in an endeavour to agree on procedures, and consider financial implications, based on the report of the Royal Commission on Legal Services with specific reference to complaints of the general public.
The Lord Chancellor (Lord Hailsham of Saint Marylebone): No, my Lords. The Law Society has already undertaken consultations on the recommendations of the Royal Commission relating to the handling of complaints and is assessing the cost and effect of the changes recommended by the commission. It has already received considerable assistance from the Lay Observer, both from his reports and in less formal communications. In the circumstances, an examining board would appear to serve no useful purpose.
Lord Molloy: My Lords, is the noble and learned Lord the Lord Chancellor aware that there is some concern by the public about the lack of proper machinery for complaints? May I also say that I am most grateful to the noble and learned Lord for his very considerate reply?
The Lord Chancellor: Yes, my Lords, of course I am aware of various complaints from the public. If they care to communicate with my office either directly or, preferably, through some Member of this House or the other place, I shall do my best to sort them out. I think that what really has to be understood about this is that the machinery which does exist relates to disciplinary offences against members of the solicitors' profession, but a great number of the complaints that I get are related to allegations of negligence, which of course are matters for the courts. One has to bear this distinction clearly in mind.
Lord Elwyn-Jones: My Lords, so far as the disciplinary side of the matter is concerned, it is the case, is it not, that there is a lay presence in the disciplinary tribunal of the Law Society?
The Lord Chancellor: Yes, my Lords, the noble and learned Lord is of course quite right. I think he was responsible for the original appointment of a Lay Observer. I think the suggestion was already being mooted about the time when I handed over to him, but I believe he appointed the Lay Observer and I think he has been a great success, probably a much greater success than I originally expected.

London Transport: £50 Payments
2.38 p.m.
Lord Monk Bretton: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how many London Transport employees have received a present of £50 from the Greater London Council recently, and whether these sums are taxable.
The Earl of Avon: My Lords, this is a matter for London Transport but I understand that the £50 payment was agreed during the wage settlement negotiated this summer. It is payable to all London Transport employees except the top management and will form part of their taxable emoluments. The Greater London Council are only directly involved through the revenue support they pay towards London Transport's operating deficit.
Lord Monk Bretton: My Lords, may I thank my noble friend for that reply. As I gather that this perquisite may have cost nearly £3 million, may I ask my noble friend whether he would not view it as a serious matter if this particular habit of paying out compensation for what might best be described as assumed loss of value in travel concessions spread to other areas, such as to British Airways because of lower fares brought about by competition from Sir Freddie Laker, or to British Rail because of cheaper away-day facilities offered to the public? Does my noble friend not think that perhaps this practice has gone far enough?
Thr Earl of Avon: My Lords, such payments are really a matter for negotiation between the managements in question and their employees. Obviously, however, the Government deprecate irresponsible pay settlements, particularly in the present difficult economic climate.
Lord Gisborough: My Lords, can my noble friend say under what by-laws these payments are made, and whether there is any limit to the amount of payment that can be made either to all the staff or to individual groups of staff for various good reasons?
The Earl of Avon: My Lords, I do not think this is a question of by-laws; this is a question of a negotiated settlement between the interested parties, and in particular of course it takes London weighting in view.
Lord Bruce of Donington: My Lords, would the noble Earl put golden handshakes in the same category?
The Earl of Avon: My Lords, no.
Lord Balfour of Inchrye: My Lords, would it not be rather inconsistent and rather unfair if the final result of this was that the Revenue now wish to take in tax a large percentage of all Christmas gifts to servants of clubs all over the country while these people get away with £50 without paying tax on it?
The Earl of Avon: My Lords, I think my noble friend is a little wide of the mark here, because this is a taxable emolument and it is part of a negotiated settlement.
Baroness Wootton of Abinger: My Lords, is it not a fact that the Government are strongly in favour of free collective bargaining and that this appears to be the result of free collective bargaining?
The Earl of Avon: My Lords, that is why although we deprecate it in some terms we do not deprecate it in others.
Lord Orr-Ewing: My Lords, would my noble friend say that "negotiated settlement" means that in this case the ratepayers were strongly represented in the negotiations between those who were getting the gift and those who were giving it?
The Earl of Avon: My Lords, this particular settlement was of course a matter for London Transport, and the ratepayers are affected because they are the people who give London Transport the subsidy.
Lord Underhill: My Lords, as the noble Earl referred to irresponsible wage increases, will he say whether or not in his view £50, less tax, on top of a low wage award is an irresponsible increase?
The Earl of Avon: My Lords, I would not necessarily say so, but if the noble Lord were to suggest that to old-age pensioners, they might agree.
Lord Leatherland: My Lords, can the Minister assure us that a similar method of treatment will not be applied towards the passengers on London Transport?
The Earl of Avon: I think they are getting away with quite a lot already, my Lords.
Viscount St. Davids: My Lords, would the Minister agree that some of the subsidies being granted by local councils to their workers are really quite extraordinary? Is he aware, for example, that Camden Council is now subsidising the lunches of some of its workers to the tune of £3·75 a day, a sum which in your Lordships' House would buy a three-course lunch and wine?
The Earl of Avon: My Lords, I am grateful for the noble Viscount's culinary expertise. The Government are opposed to inefficient, indiscriminate and in
664
equitable subsidies, but we recognise that public transport needs a measure of support and that is one of the purposes for which expenditure is accepted for transport supplementary grant.
Lord Brockway: My Lords, is not the real issue here the contrast between what the labour force receive in wages, amounts which are such that often they are unable to meet the cost of living, and the amazing gifts to management and directors who are already receiving £25,000, £50,000, even £95,000 a year? Is not that the real issue in this Question?
The Earl of Avon: No, my Lords.
Lord Molloy: My Lords, is the Minister aware that many of the ordinary people who work for the GLC are also ratepayers? Would not the Government be showing a much more responsible attitude if they were investigating the £9 billion that is being fiddled in tax evasion, as revealed in an examination? Does the noble Lord agree that that figure is absolutely astounding, yet in your Lordships' House this afternoon we are straining at a little gnat in relation to working men who might be getting a negotiated increase of £50? Which issue does the noble Earl think should have the priority of the Government?
The Earl of Avon: My Lords, I should hate to trespass on the territory of my noble friend Lord Cockfield, which I feel that most of the answer to that question would do.
Lord Monk Bretton: My Lords, would my noble friend agree that the most significant aspect of this matter is the need to bear in mind that waste of public money must inevitably contribute to increased unemployment?
The Earl of Avon: I entirely agree with my noble friend, my Lords.

London Transport Subsidy Scheme
Baroness Trumpington Baroness Trumpington had given notice of her intention to ask the following Question:
To ask Her Majesty's Government whether there is any element of central Government financial support involved in the London Transport subsidy scheme.
The noble Baroness said: My Lords, in view of the fact that matters closely connected with my Question are at this very moment under judicial consideration, I do not propose today asking the Question which stands in my name.

Exchange Controls Removal: Capital Outflow
2.46 p.m.
Lord Beswick: 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 has been the estimated capital outflow from the United Kingdom since exchange controls were removed in October 1979.
The Minister of State, Treasury (Lord Cockfield): My Lords, between the fourth quarter of 1979 and the second quarter of 1981, identified investment and other capital transactions resulted on balance in a net outflow of £6·3 billion. This net outflow is the natural reflection of the large current account surplus earned over the period.
Lord Beswick: My Lords, while thanking the Minister for that reply, may I ask whether he agrees that, with the evidence of this quite phenomenal amount of available money, it is difficult to sustain the Government's argument that capital raised for investment in the public sector must necessarily mean less for the private sector in Britain?
Lord Cockfield: No, my Lords. The noble Lord refers to the size of this outflow. It is important to bear in mind that a great deal of it consists of portfolio investment by pension funds and other institutions. I do not think the noble Lord would wish to criticise the trustees of pension funds, including those in the public sector as well as in the private sector, for endeavouring to protect the interests of their members in this way. As for the other part of his supplementary, the level of investment in this country—this applies to the public as well as to the private sector—is determined not primarily by the availability of finance but by the availability of profitable investment opportunities. Unfortunately, in the public sector much experience indicates that investment projects undertaken have not proved to be profitable.
Lord Bruce of Donington: My Lords, would the noble Lord agree that this massive outflow of capital from the United Kingdom is merely a reflection by those sending it abroad of a lack of confidence in the control, stimulation or activities of the Government in relation to domestic economic policy?
Lord Cockfield: No, my Lords, it is nothing of the sort. So long as you have a freely-floating exchange rate, it is a reflection of the very healthy surplus on the balance of payments which has been built up as a result of the success of the Government's policy. If there is any evidence of a flight of capital from this country, which I would not accept for a moment, it is because of the unfounded fears of the possibility of a Labour Government at some time in the future.
Lord Beswick: My Lords, if the Minister is saying that this money is simply the surplus on the balance of payments, may I ask how he can reconcile that with the fact that, in the first six months of this year alone, £7 billion went out of the country? Is he really telling us that it is the surplus on our balance of payments?
Lord Cockfield: My Lords, in the first two months of this year there was a surplus on the balance of
666
payments—in two months alone—of £1·9 billion. The figures are not available for a period of months, for reasons that will be familiar to the noble Lord, but a surplus has reappeared in the months of September and October. With a freely-floating pound the net outflow of capital—one must not look at the gross figure alone; what matters is the net outflow—must be equal to the surplus on the current account on the balance of payments. This is proven by the fact that the total of official reserves today is almost the same as it was in 1979.
Lord Mackie of Benshie: My Lords, surely the Minister must be disturbed by the fact that the managers of the pension funds prefer, or appear to prefer, to invest their money in foreign industry, as against British industry? Surely this must be one of the most disturbing factors?
Lord Cockfield: My Lords, what causes concern is the low level of profitability of British industry. If the level of profitability were significantly higher than it is, then investment in British industry would be more attractive and there would be a higher level of investment. This point is brought out very clearly in the report of the committee under the distinguished chairmanship of Sir Harold Wilson.
Lord Beswick: My Lords, if our economy is as healthy as the noble Lord is suggesting, if the availability of money is so great as he is suggesting, why was it necessary last week for the Bank of England to operate in the market to maintain the interest rates?
Lord Cockfield: My Lords, on a Question of this kind I do not think it appropriate to enter into a discussion about very short-run movements in the rates of interest. As the noble Lord will be aware, it is necessary to pay regard to both internal monetary conditions and international monetary conditions.
Lord Nugent of Guildford: My Lords, is my noble friend aware that in the management of any large funds, in particular pension funds, which are very large, it is normal practice to spread the risk? Is he also aware that when the Government gave investment funds the opportunity to invest abroad, which they have done for the first time for many years, it was natural that many funds should wish to place part of their portfolios in foreign investments? This is normal, prudent investment policy.
Lord Cockfield: My Lords, I entirely agree with my noble friend's analysis of the situation. Indeed, one would expect to see a fall in the level of portfolio investment after the considerable increase following the abolition of exchange controls.
Lord Mackie of Benshie: My Lords, would the Minister care to say what he thinks is short run? We are talking about a high level, an enormous level, of interest over two years, or more than two years. What does he think is short run?
Lord Cockfield: My Lords, the noble Lord, Lord Beswick, was referring to what he claimed to be

667
intervention by the Bank of England last week. I should most certainly regard a period of one week as a short run.
Lord Beswick: My Lords, for the sake of the record, may I say that the noble Lord placed emphasis on the word, "claimed". Is he suggesting that my claim was not accurate?
Lord Cockfield: No, my Lords. I was drawing no inference of any kind. I was repeating what the noble Lord himself had said, and I assume that the noble Lord accepts responsibility for the statements that he makes.

Business
Lord Denham: My Lords, it might be for the convenience of the House if I point out that, in view of the fact that there will be two Introductions tomorrow, Wednesday, 25th November, the House will, in the normal way, sit at 2.15 p.m., and not 2.30 p.m. I am sorry to say that the advance notice has not yet appeared on the Order Paper.

Harbours (Transport of Farm Animals) Bill [H.L.]
Lord Houghton of Sowerby: My Lords, I beg to introduce a Bill to enable harbour authorities to make by-laws for regulating or prohibiting the transport of farm animals intended for slaughter outside the United Kingdom; and for connected purposes. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read 1a.—(Lord Houghton of Sowerby.)
On Question, Bill read 1a; and to be printed.

Greater London Council (General Powers) Bill
Read 2a, and committed to an Unopposed Bill Committee.

Consolidation Bills: Joint Committee
The Lord Chancellor: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That pursuant to Standing Order No. 48, the Lords following be appointed to join with a Committee of the Commons as the Joint Committee on Consolidation Bills:

Airedale, L.

Alexander of Tunis, E.

Caithness, E.

Campbell of Alloway, L.

Hanworth, V.

Janner, L.

Lloyd of Kilgerran, L.

668

Meston, L.

Milner of Leeds, L.

Nathan, L.

Roskill, L.

Stewart of Alvechurch, B.

That the Committee have power to agree with the Committee of the Commons in the appointment of a Chairman; and that a Message be sent to the Commons to propose that the Joint Committee do meet on Wednesday the 9th of December next at half-past four o'clock in Committee Room No. 4.—(The Lord Chancellor.)
On Question, Motion agreed to; and a Message ordered to be sent to the Commons to acquaint them therewith.

Hybrid Instruments: Select Committee
The Chairman of Committees (Lord Aberdare): My Lords, I beg to move the first Motion standing in my name on the Order Paper.
Moved, That, as proposed by the Committee of Selection, the Lords following, together with the Chairman of Committees, be named of the Select Committee on Hybrid Instruments:—

Bacon, B.

Beaumont of Whitley, L.

Cawley, L.

Collison, L.

Cork and Orrery, E.

Drumalbyn, L.

Fletcher, L.

Lee of Newton, L.

Reay, L.

Sligo, M.

Stamp, L.

Teviot, L.

Wise, L.

—(Lord Aberdare.)
On Question, Motion agreed to.

Standing Orders (Private Bills): Select Committee
Lord Aberdare: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
Moved, That a Select Committee on the Standing Orders be appointed; and that, as proposed by the Committee of Selection, the Lords following, with the Chairman of Committees, be named of the Committee:—

Hailsham of Saint Marylebone, L. (L. Chancellor)

Mancroft, L.

McNair, L.

Mowbray and Stourton, L.

Nugent of Guildford, L.

Ponsonby of Shulbrede, L.

Redcliffe-Maud, L.

—(Lord Aberdare.)
On Question, Motion agreed to.

Civic Government (Scotland) Bill [H.L.]
2.56 p.m.
The Minister of State, Scottish Office (The Earl of Mansfield): My Lords, I beg to move that this Bill be now read a second time. The Bill marks the beginning of the end of a remarkably long lived and wide-ranging corpus of legislation, the Burgh Police (Scotland) Acts 1892 to 1911. Yet the draftsman for the 1892 Act recorded that no less than five attempts to enact the legislation were made, until finally—and here I quote him:
"The Bill emerged maimed and mutilated by Members whose constituencies it did not affect, shorn of some of its most valuable provisions, its usefulness contracted, and its symmetry impaired. It was hurried through the last hours of a dying Parliament, and became law on 28th June 1892".
Despite those imperfections and its inauspicious beginning, the Burgh Police Act of 1892, and its later amending Acts, have had a remarkably long and pervasive influence in Scottish local affairs. We have, I think, a natural reluctance to say goodbye to what might be called an old friend, but we have to accept that it has outworn its relevance. Not only are large parts of the Burgh Police Acts now obsolete and anachronistic, but they also bear very little relationship to the present structure and functions of local government.
At the time of local government reorganisation it was recognised that the radical changes of boundaries and functions brought in their wake problems for the application of the Burgh Police Acts to the new areas, but it was thought impracticable to attempt to resolve these in the Local Government (Scotland) Act 1973. Instead the then Secretary of State (my noble friend Lord Campbell of Croy) appointed a working party of officers drawn from the local authorities, the procurator-fiscal service, police forces and the Scottish Home and Health Department to consider what improvements might be made in the law. The working party was chaired by Sir Ronald Johnson, a distinguished former Scottish Office civil servant. The working party laboured for almost four years and produced its report in early 1976. We undoubtedly owe it a considerable debt for the care and thoroughness with which it tackled what at times must have seemed a truly Herculean task. Copies of the working party report are available in the Printed Paper Office, and I wish to add that Notes on Clauses will be available within the next day or so.
I shall not at this stage attempt to summariese the recommendations of the working party, but noble Lords may wish to glance at the annotation of the Burgh Police Acts on pages 127 to 140 of the report. Suffice it to say that it recommended that many of the old colourful offences in the Burgh Police Acts should be allowed to lapse, some on the grounds that they were now obsolete, many on the grounds that they had probably been replaced by later legislation, and others because they were now inappropriate. However, despite the many such recommendations for lapsing, many other powers have been recommended for re-enactment and continuation in modern form, and it is in essence with that element of the report that we are most concerned today with this Bill.
670
On publication of the report in 1976 there was a period of extensive consultation from all conceivable interests about the terms of its recommendations. As soon as we came into office in 1979 we gave a new impetus to the preparation of the necessary legislation. In the summer of 1980 we took the unusual step of publishing as a consultation document a draft Bill, reflecting as best we could the consensus of the comments that we had received, and our own views on them. That document (Cmnd. 7958) broke new ground for the Scottish Office by publishing in draft a major Bill in such an open way and inviting detailed comment upon it. We received many and varied comments on the consultation document, and in the light of these comments many of our proposals have been substantially modified and, I hope, improved. I hope that the House will agree that the principle of publishing such a draft Bill in a complex area like this is wholly to be commended.
I now intend to outline briefly the broad provisions of the Bill and the underlying thinking behind it with reference both to the working party report and to changes there have been since the consultation document. Broadly speaking, there are, I think, three broad divisions of subject within the ambit of the Bill. First, there are the provisions in Parts I and II for continuation and updating of existing arrangements for the licensing of a number of activities; secondly, in Parts III, IV and V there are provisions which are primarily related to matters of public order and the duties of the police in relation to lost and abandoned property; and the third section is in effect the remainder of the Bill—that is to say, Parts VI and VII—and this covers fairly detailed provisions in relation to building and modifications and improvements of the laws relating to by-laws and a variety of other miscellaneous matters.
To begin with the licensing Parts—that is to say, Parts I and II—I might remind the House that the working party recommended that there should be provision in the legislation for a standard general procedure for the issuing of licences. Part I and Schedule 1 to the Bill are designed to achieve that. We have taken close account of the working party's detailed recommendations on procedures, subject to one major exception. The working party recommended that there should be no right of appeal to the sheriff against the refusal of an initial application for a licence; the appeal could be against only revocation or failure to renew an existing licence. We feel, however, that in the present climate it would be quite wrong to allow any public body, even a local authority, to have the right to deny a livelihood to an individual without there being any right of appeal.
Some may still feel that we have a rather cumbersome procedure, but I think the House has to remember that we are talking here about arrangements which may affect an individual's livelihood. It is therefore very important in the interest of civil liberties that we spell out precisely what are the rights of the individual applicant and provide specifically for arrangements for appeal. We have also to take account of the wider public interest in some applications, hence the arrangements for optional advertisement of certain classes of applications. It would be tempting to rely on a much

671
simpler procedure, but I fear that the experience of the Burgh Police Acts over the years has shown that the differences in practice up and down the country can lead to anomalies and, indeed, injustices.
Of course, Part I and Schedule 1 really pave the way for the key clauses in Part II, which in our view indicate those activities for which there is a justification for licensing. I should make it clear that we do not think that licensing of all these activities throughout the country can be justified. In many cases there may be no need to license a particular class of activity listed in the Bill, and in others it may be necessary to do so only for certain parts of an area; for instance, central parts of a city district. We see no justification for the imposition of licensing provisions, even those under the Bill, unless the need for them in the particular area has been demonstrated. Broadly speaking, the three criteria against which the need for licensing should be assessed seem to us to be, first, the protection of public safety; secondly, the maintenance of public order; and, thirdly, the prevention of crime. It is for that reason that only two activities in the licensing provisions of Part II are mandatory on authorities, and those are, first, the requirement to license places of public entertainment, which is needed on grounds primarily of protection of the public and maintenance of public order, and, secondly, the licensing of scrap metal dealers, which we are assured by the police authorities is necessary for the prevention of crime. For all the other activities provision is made under Clause 9 of the Bill for authorities to exercise their discretion as to whether or not licensing should apply, and, if so, in all classes of that activity or in all parts of their area. Clause 9 imposes on the authority a fairly stringent requirement about prior notification and publication of their proposals, and I say again that we expect that authorities will not introduce licensing lightly, without proof of need.
The activities which will be covered by the so-called "optional provisions" will be taxi and hire-car licensing, second-hand dealing, boat hire licensing, street trading, late hours catering, window cleaning and private markets. I might emphasise that all of these except the last are already covered in some degree or other by existing licensing or regulation requirements under the Burgh Police Acts or local Acts, so what is proposed now is a continuation of the existing system but on a discretionary basis, with provision for authorities either not to adopt provisions at all or to adopt them only in relation to certain areas or certain classes of activity.
Finally on Part II, I should draw your Lordships' attention to Clause 46, which provides that the Secretary of State may by order subject to Affirmative Resolution in both Houses apply the licensing provisions of Part to activities not mentioned in the Bill and which may not even yet have been thought of. We are all aware of the pressures of relentless commercial ingenuity in devising new ways to entertain the public and make a living, and it may be that some of these activities will in time create problems for public order, public safety or crime prevention, and should therefore be regulated in some way. If the House approves the general principles of Part I for licensing, it would seem
672
appropriate that any further activities which may have to be licensed in the future could be dealt with not by new primary legislation but by the application to that activity of the procedures of Part I. I emphasise yet again, however, that we do not think that licensing of activities should be anything other than an exceptional measure, and the power to extend the provisions of licensing under Clause 46 will not be asked for, or, I am sure, given, lightly.
I now turn to the middle section of the Bill; that is to say, Parts III, IV and V. It is in the area of offences that the Burgh Police Acts contain some of their most archaic provisions, and, as can be seen from the annex to the working party report, a very high proportion of these colourful offences are recommended for repeal (or, at least, are to be allowed to lapse), and there may indeed be some who might argue that we are taking a step down the road to anarchy if we legalise some hitherto illegal activities. By the end of 1984—perhaps a significant year—the man in the street will be free to indulge in a number of hitherto forbidden, if not unmentionable, practices. He will, for example, be able to begin the day by purchasing tobacco before 5 a.m. and then discharge his steam trumpet without the permission of the local authority before setting off on a day's work while enjoying the new-found liberty of being able to carry a picture on horseback. He will be able to spend the day looking for, if not finding, a woman washing windows while standing on a window-sill, or perhaps a bull or stallion doing its duty alfresco. A good day's freedom, if not licence, could well conclude by assembling in a house of refreshment with other dissolute boys and girls before indulging in a "moonlight flitting".
My Lords, in this Bill all that, and more, will be possible by the end of 1984. We are indeed confirming the Conservative tradition of "setting the people free", although I have to say that they may be caught by other enactments. Many of us will no doubt regret the passing of what has been part of the warp and weft of the fabric of what used to be known as the police courts. However, I think that there can be little argument but that all these offences have outlived their usefulness, and they and many like them are therefore being allowed to lapse. The Bill of course needs make no specific provision for this to happen. The expiry of the Burgh Police Acts is automatic under the terms of the Local Government Act 1973, and the absence of a mention of the archaic provisions in this Bill means that they will lapse at the end of 1984 if not specifically repealed under the powers in Clause 130 of the Bill.
Perhaps I can now turn, albeit half regretfully, from the archaic provisions which are not in the Bill and concentrate on more mundane matters which are there. I do not want to go through a detailed catalogue of the provisions of Part III, but I suspect your Lordships will be particularly interested in Clauses 47 and 51, which deal with soliciting and obscene material, and Clauses 59 and 60, which deal with preventive offences. Clause 47, on soliciting and importuning by prostitutes, is basically a consolidation of the existing provisions in the Burgh Police Act 1892, and the only change is a minor one in that it is made quite clear that the offence can be committed by either a male or a female.

673
Clause 51 deals with the display and publication of obscene material. It does not, however, attempt a major revision of the law on obscenity. In a wide-ranging adjournment debate in the other place earlier this year on the recommendations of the Williams Committee on Obscenity and Film Censorship, we made it quite clear that in the absence of a reasonable measure of agreement both in and out of Parliament on the form of any comprehensive revision of the law on obscenity, there was no early prospect of general legislation, Clause 51 is therefore designed to bring the law on obscenity up to date by bringing within its scope modern methods of recording sound and visual images and by modifying it to take account of the provisions of the Indecent Displays (Control) Act 1981, sometimes referred to as the Sainsbury Bill.
Clause 51(1) complements the Indecent Displays (Control) Act by making it an offence to display publicly any obscene material, and Clause 51(2) makes it an offence to make, print, publish or offer for sale or distribution, or to have or keep with a view to its eventual sale or distribution, or to sell or distribute, any obscene material. Clause 51(3) provides for a maximum penalty for offences under the clause of an unlimited fine and two years' imprisonment. This represents a very substantial increase on the existing maximum penalty in the 1892 Act of a fine of £25 or 60 days' imprisonment.
The one major difference between Clause 51 and the existing law on obscenity in the 1892 Act, is that, unlike the provision in the 1892 Act which covers indecent and obscene material, Clause 51 is restricted to obscene material. This has been done primarily in order to remove an inconsistency which now arises under Scottish law as a result of the passing of the Indecent Displays (Control) Act 1981. The 1981 Act implicitly permits the display of indecent material in certain clearly defined circumstances—for instance, behind a warning notice. Under the present law on obscenity in Scotland, however, a shopkeeper who complies with the 1981 Act and withdraws behind such a notice material which could be regarded as indecent could still find himself falling foul of the criminal law on the grounds that he is offering indecent material for sale. This difficulty does not arise in England and Wales because the prohibition on offering for sale under the Obscene Publications Act 1959 applies only to obscene material. The restriction of Clause 51 to obscene material only thus not only removes this inconsistency but secures a greater measure of uniformity in relation to the law on obscenity throughout Great Britain. The clause does not attempt a definition of "obscene" but leaves it, as at present, to the courts to interpret that term in the light of the prevailing moral consensus.
The consultation document contained three "preventive offences" (at Clauses 79, 80 and 81) but, following the Government's commitment to reform the law relating to suspected persons—which was achieved for England and Wales by the Criminal Attempts Act 1981—the provision in the former Clause 80 was dropped. That was the clause which continued the offence of being a "convicted thief frequenting a public place with evident intent to commit theft"—I might call it the main "sus" offence. We have also modified the remaining preventive offences so that
674
Clause 59 in this Bill—the offence of being found on enclosed premises with apparent intent to commit theft—no longer requires an element of "unknown bad character" but, on the other hand, is now confined to an apparent attempt to commit theft and not, as in the Burgh Police Acts, any crime involving dishonesty.
The second preventive offence—in Clause 60—that of being a convicted thief found in possession of burglar tools—is also considerably narrower than its Burgh Police Act counterpart which also made it an offence to possess money or articles whose origins could not satisfactorily be explained. Since our intention in this clause is primarily to prevent crimes being committed rather than to solve other crimes, it was decided to delete references to possession of "money and articles".
My Lords, this brings me to the final third of the Bill, the buildings and miscellaneous and general sections of Parts VI and VII. There is much useful material in those Parts, but little, I think, that will arouse controversy. t might be helpful, however, if I indicated the areas which it seems to me are likely to be of most interest to your Lordships. Part VI is concerned primarily with a number of matters relating to the maintenance and repair of buildings and it contains powers which are particularly relevant to the Scottish pattern of widespread tenemental property. I might particularly mention that we have included the so-called "Edinburgh powers" as Clause 84 of the Bill because, following publication of the consultation document, many representations were received, not least from the Convention of Scottish Local Authorities, that the powers at present available to Edinburgh District under the provisions of the Edinburgh private Act were valuable for the maintenance of tenemental property. We were impressed at the volume of the evidence we received that the relatively good quality of Edinburgh property is attributable in no small degree to the judicious use of these powers. We received representations not just from local authorities but from conservation bodies and, indeed, private owners; and in the light of these have now included wider powers based on the Edinburgh Act which can be used throughout Scotland.
Part VII of the Bill contains a variety of useful provisions. I would particularly refer to Clause 106, which makes new provisions requiring local authorities to review periodically their by-laws and keep a register of those current. This is designed to encourage authorities to get rid of by-laws which have long outlived their usefulness. Following the recommendations of the working party, we have also introduced at Clauses 108 to 114 provisions for a new system of management of public property giving local authorities power to make management rules. We hope that these will be more flexible than by-laws and while still enabling authorities effectively to control behaviour on public premises will mean that minor misdemeanours will not attract criminal sanctions as is at present the case under many obsolete by-laws. The main sanction of the management rule system is that, if a user of the property in question is in breach of a management rule and refuses to leave if so requested, he will be guilty of an offence. The management rules will automatically lapse after 10 years and will have to be renewed specifically by the authority.

675
That, my Lords, I think covers the points of immediate or major interest in the Bill. The Burgh Police Acts covered a very wide scope and, indeed, in some ways were the statutory provisions on which most local authority activity was based at the turn of the century; but, if anyone has any reservations about the need to replace the Acts now, I might refer them to a fascinating article in the current edition of the Journal of the Law Society of Scotland. That article, by a Mr. Wilson Finnie, charts the developments of the Act and their haphazard incidence and, I think, forcibly underlines the need for early replacement. Mr. Finnie observes:
"Conversation with legal practitioners leads inevitably to the conclusion that though all are aware of the existence of these Acts few are aware of the mechanism of their differential application and none knows fully where they apply. Even some local authority legal departments are unaware of how such Acts apply in their own areas. This legislative octopus of invisible tentacles while historically comprehensible is obviously indefensible in modern conditions…and [highlights] the need for a Civic Government Act irrespective of its contents to render the law knowable, which in practice it is far from being at the moment".
I cannot do better than that for a peroration except to observe that T hope that, after this House has considered the Bill, the Civic Government Act will be commended, not irrespective of its contents but because of them. It is in these circumstances that I commend the Bill to the House. I beg to move.
Moved, That the Bill be now read 2a—(The Earl of Mansfield.)
3.20 p.m.
Lord Ross of Marnock: My Lords, we are grateful to the Minister of State for his very full speech and his elucidation of the Civic Government (Scotland) Bill. It had its beginnings a long time ago, even before 1892; because it was, I think, between 1883 and 1885 that three attempts were made to get that Police Bill through Parliament—and they failed. One has to consider that it was tried again in 1888 and that it did not get through until 1892. It then consisted of 516 clauses and 10 schedules. That was after the dropping of a considerable part of it. In fact there was a cry, which must be a cry that goes up from the heart of any draftsman who sees a favourite child being slaughtered, in the draughtsman's introduction to his annotated edition of the Act, which reads:
"To carry a Bill of such dimensions through the various stages of the parliamentary procedure in the few short hours that constitute Scotland's share of the attention of the legislature"—
I do not think that I will repeat that phrase—
"was no light task. It was evident that any serious opposition would be fatal and unfortunately a most pertinacious opposition arose. To disarm this, the sanitary clauses were sacrificed and at length maimed and mutilated by Members whose constituencies they did not affect. Shorn of some of its most valuable provisions, its usefulness contracted and its symmetry impaired, the Bill was hurried through the last hours of a dying Parliament and became law on 28th June 1892".
Only a draftsman could have designed those delightful sentences. Even at that there were 518 clauses.
Even today, with the passing of the years, there are—or there were in 1976–184 of them still extant, and after the 1903 Act another 45. That is over 220 clauses which stem from that time, which really is almost a
676
gathering together and almost a foundation of new branches of local government law.
Many of the clauses that have disappeared have been taken in by more general statutes, statutes in relation to building; in relation to housing, to health, to criminal justice and procedures. There is no doubt that a very considerable debt of gratitude is due to Sir Ronald Johnson, that former genial "guru" of the Scottish Home and Health Department for all the work that he has done. Indeed, let us also pay tribute to Edinburgh Corporation because their Private Confirmation Order of 1965 must have been very helpful to them when they tried to bring up to date the Police Acts.
The working party sought to get a new and more general civic code. But I think we had only to listen to the Minister of State to realise that well as they did, they did not quite succeed in that because there is no symmetry in this Bill. It jumps about from one thing to another and, by the very nature of things, the working party could not have achieved that symmetry. They dusted away the accumulations of the decades, but what they were left with was something quite impossible to get together into a coherent whole.
I commend the working party's report to every Member of the House because it is a splendid document. May I say to the Minister of State that the only drawback is that we do not know in this Bill what has been left out; indeed, whether what was left out was left out on advice. He mentioned the question of the harbouring and allowing of dissolute boys and girls to collect in one place. As a matter of fact, the police wanted that to be continued. They felt it had usefulness in the present day, if I recollect, and advised that the statute to the clause that the Edinburgh Corporation had in their Act would have been ideal for this particular purpose. I do not blame the Government for having left that out.
The working party were defeated by the diversity of the subject. We listened to the Minister of State on licensing for scrap metal dealers. Licensing used to be for golf caddies, boot blacks, messengers, window cleaners and chimney sweeps. The chimney sweeps are away although there was a suggestion that they should be continued. The window cleaners remain as likely candidates for licensing as well as boat hirers and those others in these particular clauses. The working party were defeated by the diversity of the subject and by the absurd mixture of the useful, the obsolete and archaic, and indeed the change in the nature and outlook of people themselves because the commonplace and detailed necessities of the Victorian age are rather looked down on today.
Although we have not yet come to any decisive conclusions, we have heard the Minister telling us that we had some clauses in the Bill concerning indecent and obscure publications. I meant to say "obscene", but many of them are obscure too. Even from 1980, and the proposed Bill, to 1981 we have dropped the word "indecent"; we could not define it. But "obscene" is also not defined, although there are certain understandings in relation to the discretions of the court. But the attitude of people to what constitutes good civic behaviour has not made it easy to bring this up to date. The Government too have tended to be put off by unresolved problems that are not

677
going to be resolved for a long time. But they have left Scotland in a position of uncertainty.
The noble Earl did not mention that there were, I think, four clauses in the proposed Bill of last year—I think they were Clauses 95 to 99; and I commend the Government—on proposals for a code of civic government dealing with processions. This was the matter raised in the last Local Government Bill. If the local authority in Glasgow area wishes to stop a procession which they consider would be likely to lead to a breach of public order, they cannot do it. They can do it in Edinburgh over the powers they have in their local statutes, but it cannot be done in Glasgow. Glasgow has to ban all processions for three months in order to get at one.
I sought to put that right and give them the same powers as Edinburgh has in the last Local Government Bill. I was told that I was too early, that there was a new Bill coming. Here is the new Bill, but it is not in it. Last year the Government decided: Yes, we can do that. Four clauses were going to be in the Bill. But they have been dropped. t may well be that there is validity in their suggestion. I was looking at this matter again in the light of events in England last year, as to whether this is right in the terms of a public order Act. It still leaves—and will leave for a considerable time—unsatisfactory the situation in Glasgow and in other parts of Scotland. What the Minister of State said is quite right: there are about 216 burghs all covered by different statutes, and there are also the cities—and Greenock—covered by local Acts as well as the common law provisions and the statutory changes which have been made since 1892.
As a matter of fact, it is sometimes a question for the police as to how they would act, because they very often have three options open to them. It does not constitute the easiest form of civic code when there are these different provisions applying to the same kind of offence. I had hoped we might have got nearer a generally accepted code but the situation was appreciated by the working party; and remember that they reported in 1976. That is five years ago. How many local government Bills have we had since that time? How many criminal justice Bills have we had since that time? I would have hoped that what the working party said as one of the commendable things they saw as part of their labours was that they were laying out provisions that now could be seen as requiring to be absorbed, brought up to date and put into general statute form.
The powers of arrest by police concerning suspicion or loitering with intent—I admit the situation has been brought up to date, but we will go further into that when we reach Committee stage—really should not have been put into this Bill. Surely that matter should have been in the Criminal Justice Bill that we dealt with just a year ago; and the more we get rid of all this material that is not really civic government material, the better this Bill will be. I am sorry about that and I am sorry about the question of the disarray of the law in relation to processions in Scotland, because it is becoming more important every day that we should have some measure of certainty until such time as we treat the whole United Kingdom with a new public order Bill.
678
It may well be that the answer is in the report of the noble Lord, Lord Stodart. As I remember those clauses, they gave power in relation to processions to the regions—and there may be arguments that it should properly be dealt with by the districts. That is a point of view I had put to me a fortnight ago in a former Ayrshire borough; not Kilmarnock and not Ayr. I feel we should have taken the chance and made these changes and I think I will seek to do that in Committee, and if later, by overtaking general legislation, the Government approve the matter, so much the better; but let us have some certainty now.
There was another thing the Minister did not mention. There is a new power in relation to the licensing of markets. There always was a power in relation to markets: actually it was a duty laid upon local authorities to provide them. If you compare this Bill with the proposed Bill of last year, you will discover that a lot of duties which they sought to continue in legislation have been dropped. I presume the duties are already there in other statute form—duties of providing baths and all sorts of similar functions. There was a lovely one, I think in 1903. There was a duty laid upon them to provide baths, and one of the conditions was that there were to be at least twice the number of baths for the working class that there were for the better-off class. I can understand why that has been overtaken by the times; but not so long ago I can remember that in the area where I was brought up you could have a whole street, a whole district, and you could say without fear of contradiction that there was not a single bath in the whole place. That is within my lifetime. There were whole sections of towns, whole areas of Glasgow, where there was not a single bath. This was a groping towards something which is now accepted. It all started from the 1892 Act and the 1903 Police Act which followed.
Coming back to markets, there has been a development during recent years—it has been very popular with the public—the starting up of Sunday markets. I think it is on page 56 of the report that something is said about this. They refer to its growing significance and say it is not covered by existing Scottish statutes, and they refer to the setting up of markets by private persons and organisations, particularly the so-called Sunday markets. They suggest that it requires regulation. I am glad to note that this kind of market is now covered because, although it is popular, I know that many local residents complain about it and many local shopkeepers complain; arid they complain even more as rates rise and they are faced with what they consider to be unfair competition. In many cases the police, too, are obliged to devote a great deal of time and manpower in this respect. I am glad of the fact that it is now in.
I want to deal with the whole question of licensing. I can understand the desire to give as much freedom as possible to local authorities, but I should have thought that not only should it be mandatory to have licensing for metal scrap dealers but also that there should be no possibility that there would be areas where, because this is one of the optional parts of this licensing procedure, there would, on the decision of the local authority, be no licensing of hire cars and taxis.

679
Of course, once a local authority by resolution goes for licensing in the prescribed categories which are there, and which can be extended by the Secretary of State, then they must apply the new code of licensing referred to in the earlier clauses, Clauses 1 to 8 in Part I of the Bill. I am wondering whether it is just a wee bit bureaucratic that we apply this kind of procedure to the licensing of window cleaners, with all the form and regulation that has to go through. It is wonderful in theory and on paper, but it is a very, very heavy-handed business, and at the moment it is also very haphazard. Local authorities give a licence but they do not seem to know why they give it and under what conditions. There is no appeal or anything else.
That being so, I can understand the problem for many of the more important aspects of licensing—for instance, in relation to taxis, where people's livelihoods are involved. There is the question of fares and so on, because, if they do pass a resolution in the optional cases, then they must apply these clauses not in part but entirely. That means advertising, the right of appeal and appeal to the sheriff. One thing which is suggested is that this Bill is not going to cost local authorities anything. However, local authorities will have to set up a completely new department in relation to licensing, and I shall he very surprised indeed if it is not going to cost them anything.
It is also suggested that the cost of the various licences should meet the expenses of the local authorities. I doubt very much whether it will, and still be reasonable. But, on the question of taxis and hire cars, the working party suggested there should be two separate codes of licensing, clear-cut—one for the taxi and one for the hire car. So far as I can see, they are a bit muddled and mixed up.
There is another thing—and let nobody underestimate the importance of this—because running a taxi may be one man's business. That is his capital and his livelihood. The suggestion was made by the working party that the local licensing authority should be able to control the number of taxis. There is nothing in the Bill about that and of course it means that if somebody is overtaken by ill health he can sell the business, sell the taxi and transfer the taxi licence—that is, the car licence; not his own driver's licence, because they are two separate things. I think that the Minister of State should make it clear why he made no reference to these points. This is mentioned on page 6 of the working party's report and I am glad that my noble friend Lord Underhill is to address some remarks to the House on this matter. There is so much to be said.
There is one important point about lost property. The advice in respect of lost property came from the Scottish Law Commission's report, and they were quite clear about it. They wanted a completely new system. In ordinary cases, if people lose anything the first thing they do is go to the police. When they have been on a train, a bus or anything else and are not sure where they have lost something, they go to the police. The unanimous view in the Law Commission's report, which emerged in consultation, was that the responsibility for dealing with lost property should remain with the police, because they said that there was public satisfaction with the system.
680
They went on to say that certain transport undertakings in Scotland are at present permitted to operate under special schemes. If you find something on a bus, you have to give it to the conductor. If you find something on a train, you have to hand it in somewhere else. The other day, a Member of Parliament had some difficulty about where he should hand in a credit card or a student's travel card that he had found.
The Law Commission went on to say in paragraph 33 on page 12:
"It is difficult to resist the conclusion that schemes which enable certain transport undertakings to apply different rules of law should not survive in this branch of law. The lack of uniformity can and does cause inconvenience both to the police and to members of the public who have lost their property"
They came to the conclusion:
"If our conclusions on rights of ownership of lost property are accepted, it would be inconsistent to confer qualified confiscatory rights of statute on certain selected public undertakings only, while denying such rights to private concerns and to members of the public"—
for instance, department stores with branches all over the place. They could claim the same rights as a public undertaking, so that, if something was found on their property, it should be handed to them and not to the police. Finally, the Law Commission said:
"We recommend, therefore, the abolition of these special privileges and that the chief constable should be placed in the position of being in control of all lost property".
That has been departed from. Why?
Secondly, the Law Commission suggested that in respect of lost property a compensation fund should be set up, out of which the chief constable should at his discretion pay rewards. There was quite an argument about what the reward should be, whether it should be 10 per cent., or a minimum or a maximum. All these matters are in the Bill, but I am afraid that the question of the compensation fund has not been dealt with.
Subjects such as charitable collections and touting are important, and I am glad that they are there. In certain parts of Scotland, if you want to have a collection at an outdoor political meeting, you have to get permission. I can well remember having staggered my way through the 1945 election on a day when I was fighting a place called Ayr Burghs. I started at Ardrossan and then had a meeting in Salt-coats, another in Irvine, another in Troon, another in Prestwick, another in New Prestwick and, finally, one in Ayr. I staggered on to Ayr Low Green, faced with thousands of people. I thought that I had done very well and when I finished I said to an old ILP supporter, "That wasn't a bad meeting", to which he replied, "Aye, but we hadna' permission to take a collection".
But control in respect of this is quite right and quite wise, as indeed—when you come down to it—applies to what was in the 1892 Act for its day. The amazing thing is that it worked, and it worked for over 90 years. I hope that the Minister of State was right. We should be very careful not to give hostages to fortune. What is to happen in 1984?—because one of the powers taken in this Bill is power to extend the life of the Burgh Police (Scotland) Act, in many of its aspects, for yet another two years. We had hoped to do this job by 1979, but we did not make it. We are now hoping to do it by 1982, and there are extensions to 1984 and, in

681
certain respects, to 1986. I sincerely hope that we make something of it.
It will be a fascinating Committee stage, to which all are cordially invited. Do not leave it to the Scots to deal with these problems of police powers, indecency, obscene publications, management codes and all the rest of it. Remember what went wrong in 1892, when the despairing draftsman talked of, "only the few hours that are allowed for Scottish legislation". There will be plenty now. Let us make this a real, lasting Civic Government Bill. But, on the whole, I have to commend the working party, and also commend the Government and those civil servants who have laboured long at this. I trust that with their further help we shall make it a better Bill before it becomes an Act.
3.46 p.m.
Lord Mackie of Benshie: My Lords, I find it extremely difficult to make a Second Reading speech on this Bill, and I shall not disguise the fact that it is the kind of Bill that a person like me dislikes terribly. There is no broad sweep of policy on which one can elaborate or, indeed, put a profound principle. One cannot criticise the noble Lord, Lord Stodart of Leaston, on his report and one cannot—like my noble friend Lord Evans of Claughton—go into the electoral system. It is a beastly Bill which is dealing with the needs of the ordinary person, which arises from a practical working party and on which even the noble Lord, Lord Ross, was bound to commend the Government for producing.
A Bill of this kind, which deals with so many diverse matters affecting the people of Scotland on which they can feel very deeply, is one which one must commend. But I do not know what one says about the general principle, because it is wholly a collection of practical propositions arising out of a working party of practical people. I suppose that one should commend it on that ground alone, and it is probably an advance on those things arising out of theory and totally un-commended by practical people.
The general subjects in the Bill are all to do with local people and I think that in Committee—it is really a Committee Bill—we shall need to examine the licensing of the various activities of the people of Scotland. On the licensing of markets, it is quite extraordinary how people have appreciated the markets, and the Sunday markets, that have sprung up. The Highland Agricultural Society derives a very large amount of its income from the market which has sprung up at Ingliston, and it is very much a factor in the lives of the people. But I think that we need to look at whether it is necessary to license window cleaners. There are aspects in the Bill which require examination. The noble Lord, Lord Ross, has already touched on the question of taxi services and their importance in a district, as well as their extreme importance to the people who run them and who want protection for their living.
As regards Part III, I am wholly in accord with the need to do something about dogs. It is a very unpopular subject upon which I have received letters. I am in agreement with everything that will bring them under some form of control. The provisions relating to arrest and other matters are outwith my experience.
682
However, I will ask the lawyers in our party to look with some care at these provisions when we come to the Committee stage.
Because of my enormous lack of knowledge of the subject, it is very difficult for me to say any more. However, the noble Lord, Lord Ross of Marnock, has already given us the benefit of his extremely valuable knowledge, in 25 minutes, and has promised us many hours during the Committee stage. Then the noble Lord, Lord Hughes, is sitting beside him, and all around the House there are many experts. Therefore, let me only say that I look forward to dropping in on them occasionally in Committee to see that they are doing well. We shall examine many of the provisions with some care.
3.51 p.m.
Lord Wilson of Langside: My Lords, I can see force in some of the detailed criticisms directed against the Bill by the noble Lord, Lord Ross of Marnock, and I can understand well enough why the noble Lord. Lord Mackie of Benshie, described it as "a beastly Bill" Having said that, I venture to think that it is a good Bill because, as the Explanatory Memorandum says, it consolidates much of the Scots law and at the same time in a sense codifies much of the Scots law related to civic government. This was a very necessary exercise, so I see it as a good and as a necessary Bill. I sec it also as a Bill to be commended, in that most of its language is comprehensible and understandable, even to myself. This is not over-common in our statute law. For most of my life, though not so much now, I have been puzzled as to why parliamentary draftsmen apparently enjoy drafting in language which it is difficult to understand and to comprehend. Far be it from me to suggest that the circumstance that clarity of language would reduce the need for so many lawyers has anything to do with it. However, the Bill is a good and a necessary Bill and its language, because it is fairly readily understandable, is to be commended.
We are indebted to the noble Earl the Minister for introducing the Bill to us with such distinguished ability and clarity, and also good humour—a combination which, having regard to what he often has to face from the Scots on this side of the House, is a great tribute to him. I have often felt that in his position good humour is an essential for survival. In presenting this measure to your Lordships the Minister combined all those qualities.
It is not to detract from anything that I have said or to qualify or modify any of it when I say that the Bill jolly well ought to be a good Bill. It is well nigh 10 years since the noble Lord, Lord Campbell of Croy, set up the working party upon which the Bill proceeds. So we can take it, can we not, that the Scottish Office had been thinking about it for some time before then? One comes to the conclusion, I hope not too unkindly, that the speed of sound is perhaps only rarely achieved in the Scottish Office. I hope I am not telling tales out of school or breaking any of the rules, written or unwritten, of your Lordships' House if I say that when I worked in the Scottish Office this was very much my impression.
It is not to qualify anything which I have said commending the Bill when I say that it is not surprising that the language is clear. Whatever else may be said—

683
and a certain amount has been said—about the old Burgh Police (Scotland) Acts, I always found them (I had a good deal to do with them when I was young, practising in the law), and I think most lawyers and even laymen did, too, to be pretty easy to understand. There was no undue complexity about them. It may be that this has contributed to the relative clarity of the provisions in the Bill that is before us today. As the noble Lord, Lord Mackie of Benshie, said, this is not the kind of Bill upon which one can really make a Second Reading speech. When I took a preliminary canter through it last week my first impression was that it would be difficult to take much more than, I think I said, six minutes on a Second Reading speech on this Bill, whatever we may have to say during the Committee stage. I see that I shall have lived up to what I said then if I sit down now and merely say that I hope your Lordships will give to this Bill a Second Reading with alacrity and with a certain amount of pleasure.
3.58 p.m.
Baroness Elliot of Harwood: My Lords, I shall follow the example of the speakers who have already taken part in this debate and be very short. First may I congratulate my noble friend Lord Mansfield on the way he introduced the Bill. The noble Lord, Lord Ross of Marnock, said that this is an extremely complicated and rather difficult Bill to make one speech about because it deals with so many subjects. However, I think that my noble friend Lord Mansfield introduced it in a most encouraging way and I shall certainly support him as much as I possibly can. May I also congratulate the noble Lord, Lord Ross of Marnock, on his researches into history. The fact that in 1892 there was a Bill which contained 500 clauses whereas this Bill contains only 132 is an improvement. The way in which the noble Lord, Lord Ross of Marnock, looked back on the past was most engaging. I was fascinated by all he had to say about it.
The uniform licensing procedure and the right of appeal which are dealt with in the first part of the Bill are excellent. They will simplify matters and make things easier for everybody. I agree also with the proposals contained in Part II: that a class of business or person can be licensed, if considered necessary, without making this mandatory. I agree with the noble Lord, Lord Mackie of Benshie: I do not know whether or not window cleaners are necessary, but the point is that they will not be included unless they are necessary. I agree that there should be some deterrent relating to the sale by metal dealers of anything which could be turned into a dangerous weapon of any kind. The provision that a completely new activity should be licensed is safeguarded by the requirement that Parliament must give its approval. So we have got something there which we can also use, if required. Part III will work against the very great increase in burglary and theft. Any legislation which can prevent these happenings, which are all too prevalent today, I am sure we should support.
I am a little concerned because Clauses 47 to 51, which deal with the question of the dissemination of obscene literature and the distribution of indecent material, may not be strong enough. I should like
684
to see quite strong action taken against this particular form of trading, which is bringing in vast sums of money, I think quite wrongly and at other people's expense. I hope that when it comes to discussing this matter the noble Earl, Lord Mansfield, will tell us that he has sufficient powers in this Bill to stop this kind of thing.
With regard to the powers of entry, Clause 96 seems to give local authorities much greater powers than they have had. That is all right provided that the owners have had sufficient warning, or that the landlords or whoever it may be have consistently refused to carry out the necessary works. Have the owners or the landlords these safeguards?
I agree with the regulations with regard to charitable collections, and I am sure they are timely. I have never met with the misuse of charitable collections but one reads of these abuses and clearly they should be prevented.
In my view, this is a wise Bill. It is wise to have a transitional period to bring it into effect, which is included in Clause 129. The fact that we have in your Lordships' House today three former Secretaries of State, one former Lord Advocate and two former Under-Secretaries of State, all taking part in this debate makes it very unlikely that anything in the Bill will not be dealt with in a very practical manner. I commend the Bill and I shall support it in any way that I can.
4.2 p.m.
Lord Underhill: My Lords, as my noble friend Lord Ross of Marnock has indicated, I wish to deal in particular with the position of taxis and hire cars under the Bill. I do so because there are important changes from the report of the working party to which reference has been made, and indeed from the consultation paper issued in July 1980.
Before I come to those two changes I wish to raise a question on Clause 9, to which my noble friend referred. As he explained, under Clause 9 the licensing procedures will not be mandatory, except in two cases. It may be that this is covered by other legislation, but I should like to ask what would be the position if, although a licensing authority should decide not to pass a resolution dealing with the licensing of taxis and hire cars, somebody wishes to operate a taxi or a hire car. Can they do so without any procedure at all, or is that situation covered by some other legislation?
Clauses 10 to 22 relate to the licensing of taxis and hire cars, but we find that the provisions of Schedule 1 contain all the detailed procedure for all the various activities for which licences would be permissible, including those for taxis and hire cars. I wonder—and certainly the taxi trade is wondering—whether it is not advisable to keep separate the position of taxis and hire cars, with all the procedures appertaining to them, rather than dealing with them all together in Schedule 1, which would apply to all licensed activities.
While I am dealing with Schedule 1 I should like to make another point. There is provision in Schedule 1 that for all applications for licences and renewal of licences public notice should be given in one or more newspapers. I am told that in the case

685
of Glasgow there are 1,500 taxis and 2,500 taxi drivers. I know that there is provision in one subsection for the Secretary of State to prescribe where that public notice shall apply, and it may be that the Minister of State can assure us that there is no intention of applying it to the large number of licences and renewals for taxis and hire cars because the newspapers will have a very good time if that is not to be the position.
I welcome the inclusion of Clause 17, because that provides for a taxi operator to be able to appeal to the traffic commissioners against the scale of taxi fares which may be determined by the licensing authority. For quite a while the taxi traders considered it wrong that their appeal should be to the very council that fixes the fees. So that particular clause is welcomed. Similarly, I welcome the inclusion of Clause 14 which deals with signs on vehicles other than taxis. That brings the position in Scotland into line with the Transport Act 1980 dealing with England and Wales.
I referred to two important changes in the Bill. Naturally I do not wish to give a Committee stage speech, but I must deal with the omissions to some extent, so that the Minister of State may be able to give me an answer when he winds up the debate. The first omission concerns the power for licensing authorities to determine the number of taxis that may be licensed in a particular area. That power is not to be included in the Bill. That proposal was included in the report to the working party. I will not quote it at this stage, but the working party was quite definite that there should be power to determine the number of taxis, and they made it quite clear that it was necessary in order to provide a service for the public on the one hand and also to ensure that in the licensing area operators can make an adequate living.
The consultation paper also contained a reference to the fact that a licensing authority shall refuse an application to grant a licence if in their opinion, having regard to facilities of the same or of a similar kind already available in the locality, the grant of the application would result in the over-provision of such services. So we have the working party report which is quite definite, we have the consultation document which is quite definite, and yet the whole reference to this is not now included in the Bill. Is there any reason why there has been a change of view and this provision has been taken out?
At present, both in Scotland and in England, there is existing power for a local authority to licence such number of taxis as it thinks fit. Unless something is put into the Bill we shall have the position that that provision will remain in England and Wales but not in Scotland. I know there is a suggestion that including the right to limit could protect a monopoly situation; but of course the limitation of the number of licences has some effect upon a taxi operator's business, and I believe that the Minister, in his very useful opening statement, referred to the fact that there was a right of appeal on another matter affecting a person's livelihood. If there is no limitation on the number of taxis and hire cars, that will affect a person's livelihood, and I suggest that there is no problem whatever in a district council assessing the number of taxis that it is desirable should be licensed in a particular area. I suggest that limitation is required not only for the protection of the
686
taxi trade and the livelihood of the individual, but also for the protection of the public, because the standard of the provision of taxis and the quality and character of taxi drivers must be maintained in the general public interest.
The other very important omission relates to the provision for the transfer of a taxi licence. Again, provision for this was recommended both in the working party's report and in the consultation document. In fact, in the latter the draft Bill suggested two quite long clauses—Clauses 15 and 16—but those clauses have been omitted from the Bill.
I must point out that, as contained even in the consultation paper, provisions for transfer would have related to all the various activities for which licences would be granted and not just to taxis and hire cars. There may be some reason, in certain of the activities for which licences are granted, why the licence should not be transferred, but I suggest that in view of the very special nature of the taxi trade it is essential that there should be provision in the Bill for the transfer of a taxi licence. I understand that it has been suggested that the procedures which were outlined in Clauses 15 and 16 of the draft Bill were cumbersome. If that is so, surely it would not be beyond the wit of parliamentary draftsmen to redraft a clause which was less cumbersome. Even if it was still considered undesirable to put in definite procedure, surely there ought to be at least provision in the Bill that there shall be arrangements made for the transfer of taxi licences.
I suggest that the withdrawal of the power to transfer a licence will change a well-established law which applies at the moment throughout the whole of the United Kingdom. We shall have a situation where licences will continue to be transferable in England and Wales but will cease to be transferable in Scotland, unless something is put into the Bill. I ask why there has been this change. As recently as September 1980, the Minister of State at the Home Office—admittedly, the Home Office is not concerned with legislation in Scotland—made it absolutely clear that the Government view, from the Home Office, was that both these provisions should be maintained, and presumably the Home Office view would be the view of the Scottish Office. I hope the Minister will be able to say why these clauses have been removed and, I hope, give us an assurance that there will be continued consultation on these two subjects, so that it may be possible for the Government themselves to bring in amendments to make provision for these two important features affecting the taxi trade and hire cars. If the Government feel that they do not want to bring in changes themselves, it is a matter we shall have to deal with by way of amendment at Committee stage.
4.12 p.m.
Lord Campbell of Croy: My Lords, I should like to start by thanking my noble friend Lord Mansfield for having introduced so clearly what is a long Bill with many different subjects in it. I would have raised some points which the noble Lord, Lord Ross of Marnock, has already dealt with, some of the principal points in the Bill; in drawing attention to them in the way that he has he has shortened my speech by about half.
When I saw the name of the noble Lord, Lord Underhill, down to speak, I had a feeling that it would

687
probably be on the question of taxis or vehicles for hire. will not follow him in that; I hope he will understand, because there are many other things in the Bill. I would say that we know that he is very knowledgeable on this subject, and I am sure my noble friend and the Government will take into account the matters to which he has drawn attention.
I should like to take this opportunity, the first I have had in public, of thanking the working party for carrying out their task, because I set it up in 1972. At the time when I did that, as Secretary of State, it did seem a thankless task. They were asked to embark on Herculean labours and were faced with a huge quantity of miscellaneous local Acts and the many provisions of the Burgh Police legislation. All these had to be examined and discussed with the police and other authorities, and many of them had only local application in different parts of Scotland. The terms of reference given to the working party were to look into the Burgh Police Acts and related and corresponding local Acts; also to examine the powers to make by-laws and make recommendations on that. Broadly, it was to rationalise, simplify and clear up loose ends. This meant that it was recognised that quite a number of the existing provisions in the 1970s would be dropped. One hoped that as much as possible which no longer had real relevance today would be allowed to lapse or be repealed. In general, bringing up-to-date was necessary, and it was hoped that there would be a modernisation which would also involve a new code for authorities working in licensing and in the other tasks with which this Bill deals.
There has, of course, been a process of repeal of the Burgh Police legislation in a piecemeal way. I will give your Lordships an example. I was involved 20 years ago in getting through the House of Commons and your Lordships' House a Private Member's Bill to carry out certain modernisation which was much required. It concerned putting down salt on roads in burghs in Scotland because this was something which was necessary in order to dispose of ice. Of course it is done now in winter time, as necessary, on a very wide scale. But it was discovered that under the legislation existing then in many burghs it was illegal to put down salt on the roads, for the very good reason that that legislation had been enacted in the days of the horse and it would have been had for horses' hooves. It was necessary to make these changes from year to year when clearly parts of this legislation were quite irrelevant and needed to be dropped.
On the question of licensing, I hope the Government really have examined whether it is necessary to continue licensing for the subjects which are in this Bill. Certainly one of the objects of setting up that working party was to see to what extent licensing could be dispensed with altogether. One does not want to have a bureaucratic system of regulation unless it really is necessary, for safety, to prevent crime or for other reasons. When we come to the Committee stage I would hope that my noble friend would be able in each case to explain why licensing is required, and, if it is for safety, for whose safety.
I understand that some subjects which might have been in the Bill, such as licensing of hairdressers, have
688
disappeared. In due course, if my noble friend could remind us of some things that have been dropped, this would be helpful to us. We would like to know why it should be necessary for street trading and markets to continue to be licensed. I do, like everyone else who has spoken about this subject, approve of the discretionary principle, so that a licensing system does not have to be established over the whole of Scotland for each subject but can be brought into existence in areas where there is a definite proved need for licensing.
Having looked at the White Paper which was published in July 1980, which did carry out the innovation for Scotland of publishing a complete draft Bill, and comparing it with the Bill before us, one does see the differences, and therefore what has been dropped, no doubt as a result of consultations or for other reasons. I should particularly like to refer, as the noble Lord, Lord Ross, did-but I will do it more briefly because he did put the point very clearly-to the question of public processions. Clauses 95 to 99 of the White Paper Bill set out new regulations for public processions-and many of us in both Houses have said that we do need better legislation, in the form of a Public Order Act for the United Kingdom, or whatever it may be, to govern this subject. I would ask my noble friend why those clauses have been dropped. I believe myself that it is because the Government are hoping to bring in a new Public Order Act for the whole United Kingdom. If that can be done within reasonable time, that would be the best way of doing it, to promote uniformity over the country.
The noble Lord, Lord Ross, pointed out the extraordinary difference now between Glasgow and Edinburgh. If we can bring in a new Act which would have general application, that would be the best solution. The noble Lord, Lord Ross, suggested that it might be because the report of the committee which was chaired by my noble friend Lord Stodart suggested that this power should rest with the districts. In fact I think I am correct in saying that, in its paragraph No. 243, the Stodart Committee recommended that this power should be with the regions because the regions have more direct contact with the police and also the police areas are nearer in shape and boundaries to the regional authorities. So I am led to think that it must be that the Government are thinking of a new Public Order Act but I shall also be interested, like the noble Lord, Lord Ross, to hear what my noble friend has to say at the end of the debate.
I turn next to Clauses 59 to 64 which are concerned with preventive offences and which provide powers for constables and also for entry and search. These clauses seem to be aimed particularly-as were the Burgh Police Acts-at past or habitual offenders. They are designed to try to stop a crime; for example, when somebody is discovered who is, to put it crudely, known to be a criminal type and is found on premises or in circumstances with perhaps the kind of equipment which make it look as though he is going to commit a crime. I, too, would have preferred to see this provision in a Criminal Justice Bill, and we went into the whole question of powers of search by the police at considerable length in your Lordships' House at different stages when the Scottish Criminal Justice Act, as it now is, was going through. So I would

689
ask my noble friend, either this evening or in Committee, to assure us that these provisions fit in with those powers of search which we examined so closely during our discussions on the Criminal Justice Act.
Paragraph 10 of the White Paper referred to what is known south of the border as the "sus" law and said that the White Paper clauses would be reconsidered and redrafted in the light of what came out of the report on that matter. My noble friend in his opening speech referred to some changes which have been made, but I think that again this is a matter that we shall need to look at very carefully because this is the area of the law where a number of people, particularly young people, and particularly if they are of a different race, are inclined to think that they are being picked on by the police. We must look at this very carefully and it may well require further changes to ensure that these provisions, which are clearly aimed at preventing crimes before they happen, are not thought to be aimed at a particular section or sections of the community.
I should like to mention one other point very briefly which was touched on by the noble Lord, Lord Mackie; namely, dogs. I mention it because over the past eight years or so a large number of Scottish local authority Bills have been passing through Parliament. I would say that I have seen at least 20, but there have probably been 30 or 40; and almost all of them have been dealing with one subject only—the question of stray dogs and how to cope with them and the nuisance that they can create. The other side of the matter is that there must be provisions for humane treatment and for making sure that dogs which really are pets and have just become lost are not killed within, say, 24 hours before their owners can rightfully trace them. My main point is that I hope that the Government are now, by the measures in the Bill, carrying out what we were told they were going to do, which was to bring in for the whole of Scotland provisions which would make it no longer necessary for this procession of local authority Bills on dogs to come through Parliament. I hope that my noble friend can tell me that the local authorities, through their associations, are content with these provisions.
The Government are aiming to bring most of the burgh police legislation for Scotland to an end at the end of 1982. I observe that that deadline is not inflexible because Clause 129 gives the Secretary of State powers to vary the repeal of parts of the burgh police legislation and also other local legislation up to the end of 1986. I commend that and I am glad to see it. However, I should like to ask my noble friend whether general agreement has been reached on the most important provisions in the Bill. Is there still opposition from local authorities—for example, the Convention of Scottish Local Authorities (COSLA)—to important parts of this Bill?
As regards the licensing part of the Bill, my noble friend has mentioned that much of the licensing is aimed at assisting safety and preventing crime. But where licensing regulates numbers, or the quality of service, it involves the livelihoods of people and therefore there must be a proper and acceptable system of appeal in relevant cases. I believe that we must try to reach the best possible arrangements before the entry into force of sections of the Bill and the repeal of the old
690
legislation. So I would ask my noble friend whether he thinks that any time after 1986 may be needed.
The parent Act has been on the statute book for almost 90 years, and I feel that in replacing it, it is important to achieve the best and most acceptable new code even if it means that we might have to spend a few more months on particular subjects, such as licensing or preventive offences, if there is serious disagreement. But I hope that we shall complete this Bill, all parts of it, within this Session and that Clause 129 means that there can be flexibility if further consultation should be necessary on any particular subject. I believe that the reforms—because several different subjects are being dealt with in the Bill—arc necessary and that we certainly need to bring up to date generally the matters dealt with in the Bill. I welcome the Bill in principle and I applaud the hard work and effort which has been applied to its preparation.
4.27 p.m.
Lady Saltoun: My Lords, while I welcome large portions of the Bill—in fact most of it—I have, like the noble Baroness, Lady Elliot of Harwood, some reservations about the clauses in Part VI. I hope I am wrong, but Clauses 84 and 96 appear to me to give local authorities carte blanche to require owners of property to carry out repairs to their property or themselves to enter and carry out repairs, without any better reason for doing so than that they do not like the owner's face. Moreover, having carried out possibly quite unnecessary repairs to private property at possibly enormous expense they can then recover that expense from the owner of the property. For example, it seems to me—and I hope that I am wrong—that if I were the owner of a derelict cottage standing in a field, I could be obliged to restore it even though no one wanted to live in it let alone pay an economic rent for it and even if it were no danger to anyone.
I turn to Clause 93. This seems to me to give local authorities far too much power to do as they please as regards both public monuments and private monuments. As I read it, they could move or demolish a war memorial or demolish my grandfather's statue at my expense just because they did not like his face or mine.
Clause 94 gives local authorities absolute power over street names and alterations to street numbers. Apparently they have no duty to consult local opinion and they do not do so. In the old days the bailies—that is the borough councillors to your English Lordships—were local and they knew the history of the place and the local place names and they were in touch with local feeling. Now the district councillors are largely what, in my youth, in the part of the world which I come from, were called foreigners and they may live as much as 25 miles or more away from the place for which they can legislate with absolute authority.
On the other hand, I am sorry to see that there is no onus on them to number their own council houses and flats clearly. I know an area of council housing which is so badly numbered that only the inhabitants and the postmen can find their way about, and that only in daylight. After dark the police cannot and, what is very serious indeed, the local doctors cannot. It is like this: you find Nos. 14 and 15—and I have

691
done house-to-house collecting in this area—next door to each other; then you look for No. 16, see no sign of it and ring the bell at No. 15 again; the lady says, "You see the door over there, Nos. 16, 17, 18 and 19 are through there and up the stairs". But there is nothing outside that door to indicate that that is where they are.
Although I am sure that it is not the Government's intention that Part VI of the Bill should give local authorities such absolute powers, and although I also believe that most local authorities would hesitate to use them, I think it is better to get the law right than to have many appeals to the sheriff. I very much hope that the noble Earl, Lord Mansfield, will consider these points.
Finally, I do not like the Title of this Bill. We have never had civic government in Scotland. Even in the good old days of the borough and county councils the generic term was "local government". The word "civic" has misleading urban connotations as this Bill affects districts and islands councils, and hence the country. I wonder whether the noble Earl would consider changing the title to "Local Government (Scotland) Bill", or something along those lines.
4.32 p.m.
Lord Stodart of Leaston: My Lords, soon after I was privileged to join your Lordships' House one of your number warned me to look out for the unexpected. I have certainly discovered it today. It is rare for two farmers to agree; certainly not one who farms in a small way and one like the noble Lord, Lord Mackie of Benshie. Frequently, I, like a hungry sheep, have looked upwards hoping to be fed or to drink, and have rarely received satisfaction. But I agree with the noble Lord when he says that this is not the easiest of Bills on which to make a Second Reading speech. I suspect that there are many questions which will arise in Committee and, therefore, I propose to concentrate on only two matters, which I think are principal matters.
One has already been touched on by many noble Lords, and it is licensing, which occupies the whole of Part I of the Bill. The other, which may have escaped the notice of some of your Lordships, is that of dual responsibility. I speak about that with some feeling because it formed what was possibly the cornerstone of a report dealing with Scottish local government, about which, so my information goes, legislation is proposed. First, I want to agree with my noble friend the Minister of State, with the noble Lord, Lord Ross of Marnock, and with my noble friend Lord Campbell of Croy: what a herculean task this committee undertook. I thought that what I was invited to do in 12 months would be hard work; this occupied four years and covered a very much wider amount of ground.
On licensing, 46 clauses of this Bill deal with nine activities for which a licence may or must be required. In the last of these clauses, No. 46, the Secretary of State is allowed to designate any other activity which he believes ought to be licensed, subject to the approval of the licensing authority. The public entertainment clause alone embraces 10 separate recreations and, rather like my noble friend Lord Campbell of Croy, I
692
wonder whether in these days licences are really needed for all these subjects. I am not only referring to public entertainment. I believe that there is a clear need for licensing where public safety is involved, and that undoubtedly brings in such things as taxis, pleasure boats, cinemas and theatres with fire risks, and I would even go so far as to say—although I think that misgivings have been expressed about it—the holding of Sunday markets where hazards for traffic are regarded as being intense.
However, I have put a query beside billiards rooms, which is to have a mandatory licence under the entertainment clause. Perhaps my difficulty is that I have never been in a billiards room; I watch billiards on television. But one only has to read the White Paper to see that the members of the committee were very halfhearted in their comments about the necessity for that. The noble Lord, Lord Ross of Marnock, mentioned what I think is the classic doubt, that about window cleaners, a licence for whose activity is admittedly optional, like most of the others. I am bound to confess that I never knew that a licence was required for cleaning windows. I have made numerous inquiries of English noble Lords in this House, and they have expressed the utmost surprise that such a licence is needed. Quite frankly, I am not quite clear—and I hope that my noble friend the Minister of State will make it quite clear—why this licence is required.
It is true that the 1892 Act forbad females to stand on the sill of any window above basement level in order to perform any operation on the outside of such window. But my own suspicion is that this discrimination between male and female window cleaners was based rather more on propriety of dress than on anxiety for safety. Is it, therefore, the police who want window cleaners to be licensed today? There is a slightly ambiguous comment in the White Paper, which reads:
"A licence system for window cleaners would make possible a degree of policing which may be useful in large centres of population, though not necessarily in rural areas".
I can appreciate that a window cleaner has an admirable chance of seeing what is inside a house and that, therefore, the police may want to keep tabs on him. If that is the reason, so be it; though I still find it somewhat difficult to understand why the working party's comment about the greater importance of city areas should apply. This, in fact, opens up the whole question of the optional licence. In this particular case, if it is the fact that it is the police who want window cleaners to have licences. I should have thought that the chances of nefarious activities were just as great in rural areas as in cities.
I turn, as many have, to taxi licences. I do so because this matter caused a heated and totally unexpected discussion in the committee whose chair I occupied. The argument ranged between all licensing being done by the districts and all transport being done by the regions. It was pointed out with considerable emphasis that the region was the highway authority, the region ran the buses, the region was the police authority, and that taxis today form a significant part of public transport. However, in fact, we came down, as did the working party in the case of this Bill, in favour of all the licensing going to the districts, although we were concerned about the variation in fares between districts. I see nothing in this Bill

693
regarding inter-district agreements about fares, apart from those involving precise destinations such as going out of one district to an airport or a railway station in another. All the same, I must say that I am glad that a single tier of local authority has been designated.
It is this which leads me to one subject, admittedly very minor in this Bill, which worries me, as a possibility of dual responsibility seems to appear. There is very little said about public lighting in this Bill, into which my committee went exhaustively, finding a total network of complexities. We found that the regions have permissive powers—I repeat, permissive powers—to light roads which are, or are to become, highways. We found that, under the Burgh Police Acts and local legislation, districts are bound to light all streets and places where lighting is necessary, but the district cannot light roads for which the region, as the highway authority, is responsible without the latter's approval.
The only reference to lighting in this Bill appears in Clauses 87 and 88, and refers to common stairs and installation of lights on private property, each of which is to be a function of the districts. It may be—and I do not know of this—that there is to be legislation about lighting in another enactment. But much of it comes at the moment under the Burgh Police Acts, and I am bound to say that I am puzzled as to why this minor item has been selected for attention. It may be that the districts are to be given responsibility for all lighting; streets, highways, the lot. I should be surprised, after the evidence we heard, and even more surprised after the working party said specifically that regions would normally be the authority to light common stairs, and that area of concurrency in lighting should be kept to the absolute minimum, but if the responsibility is all to go to the districts, it would at least be clearer.
I remember that the Scottish development department told my committee of difficulties because of the split by the 1973 Act of responsibility for street lighting between districts and regions, and that each tier had its own electricial department. We tried to point a possible way out, by putting all lighting in the hands of one tier. What I hope profoundly is that I am not being pessimistic in seeing in this proposal for lighting common stairs and private property the thin end of the wedge that is going to make nonsense of the words that the Secretary of State himself spoke not very long ago, when he said that duplication is the enemy of success.
I end on a subject that has again been mentioned by several noble Lords—that is, the question of processions. There were two pages on the subject in the working party report, with recommendations that the districts should be responsible. There was a whole section in the consultation document, and the consultation paper took the opposite view and thought, as did the committee over which I presided, that responsibility for public processions should rest with the regions. I hope I have not appeared to be critical. I think that this is an admirable tidying-up exercise. I believe that almost certainly the Bill can be improved in Committee, and I therefore congratulate my noble friend on its introduction.
4.47 p.m.
The Earl of Selkirk: My Lords, I hope that the noble Lord will not expect me to follow him in the interesting remarks that he made, though I viewed with great sympathy what he said about window cleaners. I am very glad that both the noble Lord, Lord Campbell of Croy, and indeed the noble Lord, Lord Stodart, have said that we should look at all licences with care and see whether they really perform a function and are necessary. I think it is a price we probably have to pay for living in densely populated areas, but nonetheless the price should not be higher than is absolutely necessary. The noble Lady, Lady Saltoun, referred to street names. I believe that this is a matter which local authorities could be greatly encouraged to see carried out more clearly and more universally.
I have only three points, which are inevitably Committee points. I raise them now because I think it is fair to the Scottish Office, who are sometimes rather slow in accepting new ideas, if I suggest them now. Strictly speaking, Part I and Part II are in the wrong order. Part I deals with the council which makes the decisions. It then deals with the functions, and it is not until you get to Part II that you know what the functions are about. That is the wrong order. If you want to make it clear you first of all say that the council will do the work, you then say who the work will apply to, and thirdly how the work will be carried out.
I come as a complete newcomer to this, and I do not know anything about it. I was reading it through, and until you get to Clause 46 you do not know what the Bill is about at all. I know nothing about police Acts. All my life I have tried as best I can to avoid them, and have treated them with a great sense of revulsion, so I am starting entirely fresh in looking at what is concerned.
The second point is a quite small one which was dealt with by my noble friend Lord Campbell of Croy. Clause 73 deals with dogs and in it Section 3 of the 1906 Act is amended. Can we not have that printed in full in what I believe is called the Renton system of legislation? This is a matter which could affect anybody, both the loser and finder, and it is a subject about which emotions can be quite high. It is, therefore, desirable that the procedure should be as simple as possible and be understood.
Thirdly, why have we no estimate of what the cost of all this will be? There are some, I would call them uncertain, remarks in the introduction from which it appears that the Treasury will meet the cost. It is also said that no central manpower will be employed. The whole cost of setting it up will, I understand, fall on the Treasury, although it does not say so. As I say, we should have some idea of the cost, and it is normal in statutes to be given a picture of what the cost will be. There is a second side to that; in a sense, licensing is a tax on activities. Licensing can be done economically and carefully or it can be done extravagantly, and I am sure we all feel that it should be done as economically as possible. What pressure will there be for it to be done economically? It is said that it will be through the local authorities, but one need take any of the organisations concerned—second-hand dealers, taxis or boat-owners—to see that none of them could exercise much pressure on a local authority to see that the work is done efficiently and economically.

695
I have put forward what I know are basically committed points. If the Minister could say something about them now I should be grateful, but I shall fully understand if he says he prefers to wait until the Committee stage.
4.53 p.m.
Lord Hughes: My Lords, in recent weeks I have been abroad a great deal on parliamentary business, at the Council of Europe and the like, and a result is that I did not see this Bill until I arrived in the House today. So I am afraid that my comments on it must be rather bitty, and I have picked out a few points in passing. I wish to say at the outset how much I enjoyed the speech of the noble Lord, Lord Mackie of Benshie, which he made in his usual fashion, although on this occasion he claimed to have an almost unique lack of knowledge of the subject. I hasten to assure him, as one formerly engaged in local government for many years, that that need not worry him in the slightest. It has been one of the grievances of local authorities that lack of knowledge of local government appears to be a necessary requisite for legislators, so he is well qualified to seek to amend the Bill.
I will start right at the beginning by joining with my noble friend Lord Ross of Marnock and the noble Lords, Lord Campbell of Croy and Lord Stodart of Leaston, in expressing thanks to Sir Ronald Johnson for having undertaken this work. He may feel a sense of satisfaction that he has not had to wait quite so long as sometimes the producers of these Herculean labours have to wait before their proposals reach some degree of legislation. But, like my noble friends Lord Ross and Lord Underhill, I hope the Minister will comment on why some things have not appeared in the Bill because the Explanatory Memorandum starts by saying that the Bill gives effect to "certain recommendations".
It is, of course, easy to be either approving or critical of what is in the Bill. It is not so easy to be approving or critical of what has been omitted without some reference being made to it, and while I do not want to add unduly to the task of the Minister in replying, perhaps he will refer, as briefly as is desirable, to any of the more important matters which may have been omitted from the Bill and the reason for their omission. For example, on the subject of processions, a subject to which several noble Lords have referred, there is an extraordinary difference between what is permissible in Edinburgh compared with Glasgow. It seems unreasonable to leave this matter in its present unsatisfactory state unless there is some very sound reason for not dealing with it in the Bill.
The noble and learned Lord, Lord Wilson of Lang-side, made a complimentary reference to the Minister of State when he referred to the sense of humour which he imported into his remarks. I also noted it and I thought that, if it was a change of style which the Minister was contemplating as a permanent feature, probably life would be made a little more easy for him because I am certain that even my noble friend Lord Ross (if he will forgive me using the word "even" in this context) will appreciate a sense of humour in the Minister from time to time.
696
The Bill, as is inevitable with measures of this kind, covers such an enormous range that the thought occurred to me that for the first time since I started receiving yellow pages—not the telephone directory but documents about the activities of the EEC—we have here in a piece of legislation something which almost competes with the EEC in the variety of subjects dealt with in a single document. But, of course, when the Government produce a Bill which takes in its stride legislation which has been on the statute book for almost 90 years, obviously enormous variety is inevitable.
I will therefore briefly refer to the few subjects which, in the little time I have had available to me, I have noticed, and it will not surprise your Lordships if I, like others, pitch on the subject of window cleaners. It occurred to me in reading Clause 45 that apparently it is not an offence to clean windows without a licence. The offence is not being able to produce a licence when a policeman asks you for it. I cannot imagine that in our cities policemen will, when seeing a man or woman standing on a window-sill—now apparently to be able to be done legally—cleaning windows, want to approach them to find out whether it is the householder doing it or a window cleaner doing it with or without a licence. On a more serious note, I wonder why it should be necessary for window cleaners to be licensed at all. In the cities today it is exceedingly difficult to lay your hands on anybody who is willing to come and clean your windows, either for a reasonable or extortionate payment. It may be that the need to have a licence is part of the difficulty of finding anybody who is prepared to do the work.
Clause 53 is about,
"playing instruments, singing, playing radios, etc. in public places"
according to the caption to the clause, yet in the body of the clause it is not only, "in public places" but, "in or adjacent to" a public place. What is adjacent to "a public place? If your neighbour is playing his television or radio far too loudly, can you ask a policeman to do something about it because his house is adjacent to a public place? A little information on this point might be helpful.
I turn to Clause 56—"Dangerous games etc." I am surprised that this provision appears in the Bill. I wonder how many children in Scotland will realise that each time during the coming winter they make a slide on the pavement they will he laying themselves open to the possibility of being fined £50. I know that such slides are very dangerous. Probably like me many of your Lordships have ventured on to a slide, not for the purpose of sliding, but simply because we did not know it was there. We discovered its existence in the wrong way, by falling on it. However, I very much doubt whether the remedy here is for the child, providing he is aged over seven years, to be liable to be hauled before a court and fined.
That point brings me into line with the noble Lord, Lord Campbell of Croy, and other noble Lords who, on the question of the licensing provisions, have indicated that in Committee our task will be to require the Government to satisfy us on each of these provisions for licences. I appreciate that with two exceptions the provisions are not mandatory. But the Government will have to satisfy us as to whether it is desirable to

697
include all these provisions in the Bill, even if only to the extent of granting permissive powers regarding licences.
I was very glad that my noble friend Lord Underhill spoke in particular on the subject of taxi licences, and I look forward to having his help in this matter in Committee. When many years ago I was a magistrate, one of the most difficult tasks that faced the local bailies concerned the subject of taxi licences, and I am quite sure that most authorities found it exceedingly difficult to find a satisfactory way to deal with the matter. If in the Bill we can devise a uniform and acceptable system for licensing of taxis, that will in itself justify having the Bill.
Finally, I want to turn to the part of the Bill dealing with buildings. Unlike the noble Lady, Lady Saltoun, I am not particularly worried that local authorities will go out of their way to repair buildings because they do not like the face of the owner. As my noble friend Lord Ross of Marnock knows, in the 1960s enormous damage was caused to property in Glasgow. Dwelling-houses were made uninhabitable because of the extent of the damage to them. The difficulty of my noble friend, as Secretary of State for Scotland, did not lie in the local authority in Glasgow rushing to do repairs; rather the difficulty was to get the Glasgow authority to do anything about the matter. That was in large part due to the fact that the then town clerk advised the local authority that it was exceedingly doubtful whether it would get its money back from the owners of property if it carried out repairs. I am fairly certain that the present position will continue under Clause 84. Local authorities will be very reluctant to carry out even necessary repairs to buildings, unless they are quite sure that the owner of the property will be able to repay them at the end of the day, and I believe that in many cases where work is most necessary the local authorities will not be able so to satisfy themselves.
In regard to the building provisions—I admit that I have had only a cursory glance at them—I was puzzled by the clause relating to the owner of a part of a building being given authority to do certain things. Such an owner—
"may at his own expense instal water supply pipes and soil, waste, ventilating and rainwater pipes to serve his part of the building…"
He may do that—
"through or under any part of the building which he owns in common with any other person"
or,
"if unavoidably necessary, through any part of the building owned by any other person…"
So far as I can see, the clause contains nothing to require a person wishing to take such action to obtain any consent from the owner of the other part of the property. The second part of the clause gives an owner authority, without obtaining consent, to carry out work through the land of another person.
I can see difficulties arising in this regard. For instance, a person might acquire a piece of land for the purpose of building a house on it only to discover that he cannot in fact use all of the land because, unknown to him, a drain or water pipe runs through the land and he cannot build over it. As I say, a person may be able to carry out certain work without obtaining even the consent of the owner of the land.
698
I can appreciate the necessity to turn to another authority to seek consent if the owner is unreasonably withholding it. However, as the clause stands, unless I have totally misread it, it seems to propose a rather high-handed way of dealing with the matter.
Those are some of the points which have occurred to me and, like many other noble Lords, I emphasise that this is not basically a Bill on which to make a Second Reading speech, though that has not stopped any of us, including myself, from doing so. However, essentially it is a measure which must be examined very carefully in Committee, and I am quite certain that when my noble friend Lord Ross said that there would be much work to be done on the Bill he was not threatening the House with time-consuming procedure, but rather was giving a warning that this is proposed legislation which will need very close examination. In conclusion, I wish to commend the Government for having brought forward the measure. The fact that it might contain some points which could be the subject of legitimate criticism should not in any way detract from the thanks that are due to them for having brought it forward.
5.7 p.m.
The Earl of Mansfield: My Lords, first, I wish to thank those noble Lords who have been good enough to extend a welcome to the Bill. I think that most of your Lordships did so; one or two of your Lordships even accused me of a sense of humour, and that is equally welcome. I must say that since being on this side of the House, in the position that I now hold, there has been very little legislation that has been in any way funny. If for the first time the noble Lord, Lord Ross of Marnock, has not made a party political speech in addressing himself to a Second Reading, or for that matter to any other stage of any Bill with which I have been concerned, that has come before your Lordships' House, that merely shows what agreeable legislation we now have before us.
The noble Lord, Lord Ross, asked a very important question about processions, or rather about the absence from the Bill of any clauses dealing with them, and that anxiety was echoed by a number of your Lordships. It is quite right; the clauses dealing with local authority powers to regulate public processions have been omitted, at least for the time being. I shall explain the reason for that. As your Lordships may recollect, in a Green Paper my right honourable friend the Secretary of State for Scotland gave an undertaking about a review of the Public Order Act. He undertook that this Bill would take full account of the review that is coming to an end. I have to tell your Lordships that the results of the review are not yet quite to hand, and it is intended that the appropriate clauses be introduced at a later stage of the Bill.
The noble Lord, Lord Ross, then turned his attention to the question of taxis and hire cars, a matter which exercised a number of other noble Lords, including the noble Lord, Lord Underhill, who based his speech upon these provisions of the Bill. I appreciate that this is a matter upon which the trade feel strongly—and who shall blame it?—because it concerns particularly their livelihood. I know that they feel strongly that the Bill, unlike the consultation document, does not contain the specific power for local authorities

699
to refuse an application on the grounds that granting a licence would result in an oversupply of the facilities in question.
The fact that we dropped from Part 1 of the consultation document the specific reference to limitation of numbers—and that I may say related not merely to taxis but to all licensed activities—was because in general we are against limitation and restriction of trade by authorities controlling entry purely on quantitative grounds. But I recognise that under the new arrangements for appeal against fare fixing decisions by local authorities taxis could be said to be unique in being the only trade covered by the Bill whose charges are fixed not by market forces but by decisions of officials and, as it were, promulgated by local authorities. So I shall be willing to listen to and look at arguments that this factor of fixed fares is sufficient to justify distinguishing taxis from the rest; but I think the onus will be on those who advocate limitation to show that it will operate in the public interest.
It might be better, on the other hand, to say, as some areas in Scotland in fact do, that self-regulation of numbers is not too bad and will rest on market forces; that if local operators decide that there is not a living to be had together with an appropriate return on the capital invested in their businesses, then either they will be discouraged from entering the business or, if they are in the business, they will give it up.
There is very little guidance to be obtained from existing practice. Some authorities in Scotland operate limitation at present, some do not. Some who in theory limit numbers do so by fixing a limit which the trade themselves regard as unrealistically high, and therefore it will not be difficult, if local authorities are to be given these powers, for the powers to be exercised in an equitable way. But I merely want to say that this is a matter to which we will no doubt return in Committee and the Government's mind is open. The noble Lord, Lord Underhill, particularly asked me: What would happen if the local authority do not adopt taxi licensing at all; would an operator be able to operate? Would he not need a licence? was really the burden of his question. The answer is that already I think 23 local authorities in Scotland operate no licensing scheme at all in relation to taxis. That of course means that a licence is not required and, so far as I know, the system works comparatively well.
The noble Lord went on, as did other noble Lords, to talk about the transfer of licences. The reason why these provisions were dropped was quite simply because of local authority views that the proposed provisions for transferability were unnecessary and unduly complex. The National Federation of Taxi-Cab Associations were strongly of the view that a taxi licence should be regarded as property which could be sold or transferred with the vehicle. There are arguments in principle against a licence granted at the discretion of the local authority being bought and sold for private gain. But I recognise that many local authority decisions do indeed have a significant capital value—in other words, planning permission—and it would be difficult to view this issue in a non-doctrinaire way. So this, too, is a matter to which we can, and no doubt will, come back in Committee.
700
The noble Lord, Lord Ross, asked in effect: Why do we not adopt (I think he said) from the report of the working party, the recommendation that there should be a single system of handling lost property? The commission in fact suggested a unitary system of lost property administration carried out by the police. However, after consultation with the police and public transport undertakings it was established that existing arrangements for the handling of property lost in transit are satisfactory and do not require to be changed. So accordingly in the Bill, as the noble Lord observed, the provisions do not apply to property found on the premises or vehicles of a transport undertaking where provision for such lost property is already in existence. The noble Lord, finally, I think, asked why there was not a special fund financed to pay compensation to persons whose property had been sold. It was regarded as being extremely complicated with accountancy problems, and Clause 75 therefore provides that the running costs of the lost property service should simply be treated as part of the ordinary expenses of the police authority.
The noble Lord, Lord Mackie, was the first of many of your Lordships who exercised himself or herself about the question of window cleaners. This of course is a matter upon which your Lordships, I am sure, are peculiarly suited to debate. In my original speech, if your Lordships will recollect, I said that there were three criteria which prompted us over the matter of all licensing: first, the protection of public safety; secondly, the maintenance of public order; and, thirdly, the prevention of crime. I think my noble friend Lord Campbell of Croy related two but not the third. In fact they are comprehensive and go together.
The working party stated that it may be advisable to provide separately for the licensing of persons to carry on the trade of window cleaning, and also in respect of self-employed window cleaners. The proposal was more than supported by the police in the interests of crime prevention, because window cleaners are probably unique among persons in the category of street traders in that they normally need access to the inside of domestic premises; they are in a peculiar position to observe all and anybody who may be inside the premises in question; they are particularly needed by elderly people who cannot always wash and wipe their own windows, and they also frequently ply their trade when other folk are working and therefore can quite easily gain admission to empty houses. In those circumstances, not least for the prevention of crime, it was decided that they should be in the category to be licensed or on an optional basis. I think, with respect, that that is a sensible provision and one which, upon reflection, your Lordships would probably agree with.
The noble and learned Lord, Lord Wilson of Langside, welcomed the Bill. He mentioned that the Scottish Office does not move at the speed of sound. My Lords, we do not aspire to: we aim to move at the speed of light, on the basis that illumination is very much better than noise, though I daresay that, from his observations, my noble friend Lord Selkirk will not agree.
My noble friend Lady Elliot in effect questioned the powers of entry. All these powers are precedented in the Bill. In most cases, the re-enactment of them in the Bill is in a more restricted form than in the existing

701
legislation and in some cases is very much narrower. The powers of entry conferred by Clause 96 furnish a case in point. The provision is much narrower than the old general powers in Section 325 of the Burgh Police (Scotland) Act. One has to make a judgment on the necessity of the situation and the rights of the individual, and it is considered that these are the minimum necessary powers to render the provisions of the Bill dealing with licensing, regulations and building, et cetera, to be effective as being in the interests of justice.
My noble friend Lord Campbell of Croy also asked a number of pertinent questions. He dealt with the matter of public processions. I have given your Lordships an undertaking in regard to them. Then my noble friend went on to question what I might call the preventive clauses of the Bill. I have to say to him that they are, indeed, perfectly harmonious so far as the Criminal Justice (Scotland) Act is concerned. He asked why we had not, in effect, tidied up this part of Scottish law when that Criminal Justice Bill was before your Lordships as a Bill. The answer is that this is a review of the Burgh Police Acts, and it would have been difficult, if not impossible, to have jumped forward before a full consideration of the working party report and to have taken these particular powers out of context. I hope, therefore, that my noble friend will feel that they are, as I have said, totally consistent with the Criminal Justice (Scotland) Act.
So far as the stop-and-search powers are concerned, I must tell my noble friend that, as in all these powers given to police officers, one has to draw a line somewhere between the rights of the individual and the interests of the community, and that very much depends upon the way in which these powers are exercised by police officers—that is, upon whether they exercise them in a way which is sympathetic and reasonably tactful, bearing in mind the character and type of people with whom they deal. This is a matter to which we can return on Committee.
My noble friend expressed the hope that the Bill will obviate future order confirmation Bills. I have pleasure in saying that indeed it will. The local authorities will be able to appoint those who used to be called dog wardens but who now will be called dog officers in the way that they used to though they needed the blessing of the Secretary of State before they could do so. There has been a great deal of consultation on the Bill with the Convention of Scottish Local Authorities, and, in general, they are in agreement with the revisions in it.
Perhaps I may now turn to the categories of trades which are, or can be, the subject of licensing, because my noble friend dealt with that. This is a matter with which I am sure the House will concern itself in Committee at considerable length. I do not propose to do so tonight. We have had to take a view, and we have dropped licensing or registration of porters, chimney sweeps, messengers, golf caddies, piggeries and stables in Glasgow from the list of categories requiring licensing or registration. But it is a question of paying one's money and taking one's choice as to the activities which one may consider desirable from one's own subjective viewpoint.
I now turn to the noble Lady, Lady Saltoun. Her distaste for this part of the Bill, and particularly Clause 84, probably springs from a fairly active dislike
702
(if I may so describe it) of the new local authority which has replaced the cosy burghs which used to exist in the North-East of Scotland—and perhaps Fraserburgh was one of the cosiest of the lot. If her contention is that the district councillors are in any way less able to serve the interests of the community who elect them than some of the old bailies whom I used to encounter, I reject that criticism. I think that my noble friend Lord Campbell when he reformed local government was totally right to do so and I have very little evidence—certainly little that has come to me in the last couple of years—that the district councils are in any way acting in an obnoxious or overpowering way towards the smaller communities within their districts.
Clause 84 is part of the "Edinburgh powers". The clause is based on what has worked very successfully in Edinburgh, and that is why it has been extended to the rest of Scotland. It has been pressed for by property owners and local authorities—one may think it an unholy combination—and, if all else fails, no doubt the noble Lady has already turned her attention to Clause 102, which gives ground for adequate rights to appeal. So I cannot accept that particular criticism. She also criticised the name of the Bill. I merely say that we had to look for a name for this Bill. There are so many local government Bills knocking about from the last few years that it would not have been appropriate to have added yet another and—who knows?—another may be coming to your Lordships ere long. This particular word "civic" has an excellent provenance. It is used by the working party themselves, and the working party consisted of an admirable bunch of Scotsmen, with the possible exception of a Mr. Evans. I do not say that he was not admirable but only that he does not sound very Scottish. Unless the noble Lady can think of a better name I think we will stay with what we have.
Lord Hughes: My Lords, if the Minister will allow me, I must object to a man with the name of Evans being necessarily classed as not being Scots—when one considers that my name is Hughes.
The Earl of Mansfield: My Lords, I do not know the noble Lord's antecedents any more than I know those of Mr. Evans, so I will pass to my noble friend Lord Stodart of Leaston, and, if I resist the temptation to go down the path which he so attractively set out for me—that is to say, if I decline to tread on dangerous ground which covers the subject of the excellent committee under his chairmanship—I am sure he will realise my point. In a very short time the legislation which was promised to follow the report of his committee will be published. A great many of the points he made will then be cleared up. If there are any further matters, particularly on the powers as between districts and regions, then we can consider them in Committee.
Regarding consultation on the matter of taxi fares between districts, I would have thought that this could be achieved quite well without legislation. The traffic commissioners can exercise a unifying influence on these matters in respect of appeals.
I am sorry to refer to my noble friend out of turn but my noble friend Lord Selkirk criticised the juxtaposition of Parts I and II of the Bill. This is a matter for the draftsman. I would not venture to offer any

703
opinion which was critical. We have removed most of the contents of Part I into the schedule. No doubt we can address ourselves to this matter in Committee, if it is necessary.
Regarding dogs in Clause 73, I will certainly look at that. If the matter can be set out in the Bill in a more comprehensive, intelligible or understandable form, I will see to it that that is done.
My noble friend asked whether the costs of the licensing system in effect will fall on the Treasury. Under Schedule 1, paragraph 16, the costs of the licensing system have to be met from fees. So we have to rely on the elected members of the local authority to keep the costs and efficiency of the licensing system under review. We expect that the Convention of Scottish Local Authorities will consult with each other and lay down the necessary charges. The cost will not be borne by the Treasury.
The noble Lord, Lord Hughes—in spite of coming to the Bill very new—asked one particular point that I want to answer concerning Clause 53 and the meaning of the word "adjacent". Perhaps I can best explain it by saying what it is that it is sought to deal with in this part of the Bill. The clause will cover noise emanating from, for instance, a garden or a room overlooking a street or, for that matter, any other public place. Noise coming from either of these sources could cause considerable annoyance to other people. That is why the clause has been drafted as it has.
I have already said to your Lordships that Notes on Clauses will be provided in the next day or two. I anticipate that we shall have a lively and—dare I say it!—at times a humorous Committee stage. With those words, I hope that the House will give this Bill a Second Reading.
Lord Wilson of Langside: My Lords, before the noble Earl sits down, may I ask him this? I enjoyed his riposte to my suggestion—a veiled criticism I thought—that the exercise had taken rather a long time. It showed that, combined with his good humour, he has the quality of quick thinking. I thought that it was a very good reply. I acknowledge the hard work of the working party, which took four years. Does he not acknowledge that prima facie the exercise which gave rise to this has taken more than 10 years, and that suggests that prima facie—and I put it no higher—we should look at the working of the machinery of Government in Scotland? Does he not think there is at least that much validity in the point which I sought to make on the timescale of this whole matter?
The Earl of Mansfield: My Lords, Governments of the day of course always have to steer a course between that criticism which accuses them of being slow and incompetent, and that school of criticism which accuses them of being fast, hasty and therefore incompetent. I hope that of this Bill, scrutinised as it will be most carefully—not least by your Lordships' House—it will eventually be said that we have got it about right.
On Question, Bill read 2a, and committed to a Committee of the Whole House.

Redundancy Fund (Advances out of the National Loans Fund) Order 1981
5.35 p.m.
The Minister of State, Ministry of Agriculture, Fisheries and Food (Earl Ferrers)The Minister of State, Ministry of Agriculture, Fisheries and Food (Earl Ferrers) rose to move, That the draft order laid before the House on 20th October be approved.
The noble Earl said: My Lords, the Redundancy Fund Act 1981 limits the amount which the Secretary of State for Employment may borrow for the purposes of the Redundancy Fund to £200 million, but it makes provision for that amount to be increased by order to an amount not exceeding £300 million. The effect of this order is to increase the limit to £300 million.
As the House knows, the Redundancy Fund is used to pay rebates—which are currently 41 per cent.—to employers who have made statutory redundancy payments to employees. It is also used to meet certain debts which may be owed to employees should an employer become insolvent. 0.2 per cent. of an employer's National Insurance contribution is allocated to two funds which are administered by the Department of Employment, 0.15 per cent. normally goes to the Redundancy Fund and 0.05 per cent. to the Maternity Fund. Since March of this year, the 0.05 per cent. which normally goes to the Maternity Fund has been diverted to the Redundancy Fund, because the Maternity Fund has had a healthy surplus.
There have been a number of occasions in the life of the Redundancy Fund when it has been in deficit and when its borrowing limits have had to be adjusted. At the end of February this year, just after the current borrowing limits were set, the surplus in the Fund was just over £34 million. The fund went into deficit in May and, since then, the deficit has been increasing. At the end of October it was over £140 million.
If the deficit were to continue to increase at the current rate the present £200 million limit on the amount which may be borrowed from the National Loans Fund could be reached early next year.
Clearly, a number of factors can affect expenditure from the Fund other than the actual number of people being made redundant. Age, length of service and earnings all affect the average level of payments made. The average payment made from the Fund has increased by nearly 14 per cent. over the past year. This was due not so much to changes in the age or the length of service of those who were made redundant, but to the increase in average earnings.
The causes of redundancy are, of course, complex. Even in periods when new employment opportunities are being created, other jobs may disappear through changes in the pattern of demand or in the organisation of industry or methods of production. We must accept the harsh truth that, where there is over-capacity or structural inefficiency, redundancies may be inevitable, and improvements in competitiveness are vital if those industries are to survive and prosper.
In the meantime, we need to ensure that the Redundancy Fund can continue to meet its commitments and hat is why we are seeking parliamentary approval to extend the borrowing limit to the £300 million which

705
is permitted by the 1981 Redundancy Fund Act. I beg to move.
Moved. That the draft order laid before the House on 20th October be approved.—(Earl Ferrers.)
5.40 p.m.
Lord Bruce of Donington: My Lords, we on this side of the House are pleased to welcome the terms of the statutory instrument. When it was first drawn to my attention I immediately started on some lengthy research because the instrument was short and, in my experience, short statutory instruments are always a matter of some suspicion. So I did a certain amount of research, going all the way back to the Redundancy Payments Act 1965, and traced the matter through. But that was before I read the Thirty-Second Report of the Joint Committee on Statutory Instruments which was published on 27th October and which unhappily escaped my attention, in which it says that the committee had considered this particular instrument and
"…determined that the special attention of both Houses did not require to be drawn to it".
So I would not propose to delay the House very long about this since the Joint Committee has already recommended that our specific attention should not be drawn to it. This, of course, will very much shorten my remarks. Indeed, practically everything has been said, if the noble Earl will forgive me—because it was clear that what he said in regard to this instrument, except for the updating of the figures, was said in the course of the debate on the Bill itself which took place on 26th February last. I would respectfully draw the attention of the House to that debate, since it will save me the trouble of going over the points myself, and to the very excellent speech delivered by my noble friend Lord Davies of Leek, who dealt with the matter very thoroughly.
I would not have spoken further had it not been for the political remarks that the noble Earl addressed to the House in very mild terms towards the end of his very short statement, when he referred to the causes of redundancy and made some observations about the necessity for our becoming competitive and so on. It is important that it should be realised that the Redundancy Payments Act, when originally passed, was intended to remedy a very considerable social evil; that was to do something about allaying the fears of people that they would, on becoming redundant or in the event of unemployment occurring and therefore occasioning their redundancy, in addition to the anxieties they face as a result of having nothing to do and having a bleak life in prospect in which they would be unable to take any active part in the productive work of society, additionally be faced with a financial anxiety.
That was the whole purpose of the original Act, and if one goes through the proceedings of another place and of your Lordships' House it ought perhaps to be noted that it received a very tepid welcome from the Conservative Party, who regarded it as being some obstruction to what they considered to be the very desirable mobility of labour in various areas of industry. The Act itself was introduced at a time when unemployment was very low and now it is very high indeed, and
706
therefore it is important that this order comes into force.
I would dissent from the noble Earl that there are causes other than the policy of the Government themselves that have caused this very large increase in unemployment and its attendant distress. They know perfectly well that the monetarist policies they have been following since they came into office have produced the state of unemployment from which the country is suffering at the present time and they cannot palm it off by referring, as they do from time to time, to competitiveness and to the allegedly high wages received by workers who are therefore pricing themselves out of jobs. This really will not wash any longer.
Those remarks are addressed purely in reply to some of the remarks which were made by the noble Earl at the conclusion of his statement. We on this side of the House have great pleasure in approving this statutory instrument. Our regret is that the increase in the fund to its present levels, and the increase in the borrowing powers should in fact have become so necessary.
5.47 p.m.
Earl Ferrers: My Lords, T am grateful, I think, to the noble Lord, Lord Bruce, for what he has said. He did say that the particular part he wanted to comment upon were the political observations I made at the end of my speech. What I would say to the noble Lord is this: he is a delightful but a curious noble Lord. I did not think I made any political observations at all: I merely made observations of pure practical common sense. The fact is that we have to be competitive as a nation, and if you do have a period of recession periodical redundancies are bound to come about. I would agree with the noble Lord when he referred to the original purpose behind the Act. I think it was his right honourable friend the then Minister of Labour, Ray Gunter, who is 1965 in moving this Bill, as it was then, in the House of Commons said that it had:
"an important and necessary part to play in allaying fears of redundancy and resistance to new methods and economic change".
It is perfectly true that although this fund may enable people not to have financial anxieties it also is an inducement and an encouragement to change. It was the noble Lord, Lord Bruce, who made the most political observation in the whole of this debate that we have had, when he said it was totally the Government's fault that unemployment is as it is. He quite clearly laid the blame for the whole of the unemployment on the Government's economic policies. I reject that totally. The noble Lord knows perfectly well that there is a recession in the world which is hitting almost every other country in the world, and certainly in the western world. Why is it that in the last month alone German unemployment has increased by over 100,000? Why is it that in France unemployment is over 2 million? We are not responsible in the United Kingdom for the policies of those Governments, but they are also affected by world recession.
I would only, if I may, in thanking the noble Lord, Lord Bruce, for his courteous and generous welcome of this order, say in all sincerity that we in the Government

707
dislike unemployment as much as any member of the party opposite. It is a thing which we wish to see removed, and there are two ways in which you can do it. One is by keeping down as far as possible the rate of inflation, because only by doing that can you become competitive. The other is, in a period of recession, to make your industries sufficiently crisp and sharp, which may mean redundancies, to enable those industries to be competitive and enable them to take advantage of the changed conditions when the recession ends. It is to that end that this Government are seeking to pursue their policies, and in so far as there are redundancies we wish to see those as few as possible, but to make provision for them in the way we have by means of this order. I repeat that I appreciate greatly the generous way in which the noble Lord, Lord Bruce of Donington, welcomed this order.
On Question, Motion agreed to.

Scottish Seed Potato Development Council Order 1981
5.50 p.m.
The Earl of Mansfield The Earl of Mansfield rose to move, That the draft order laid before the House on 17th November be approved.
The noble Earl said: My Lords, I beg to move that the draft Scottish Seed Potato Development Council Order 1981, a copy of which was laid before the House on 13th November last, be approved. This order is presented for your Lordships' approval in accordance with the Industrial Organisation and Development Act 1947. The effect of the order will be to establish a development council for the seed potato industry in Scotland.
This is an important industry not only for Scotland but for the whole of Great Britain, and I am glad to declare an interest in it as a producer myself. As an industry, we produce about 20,000 hectares each year of what are probably the best seed potatoes in the world. Our product is directly worth about £40 million annually with exports abroad worth about £5 million, but it provides the planting material for most ware potato crops in England and Wales, as well as many other countries especially in the Mediterranean area. So in addition to its contribution to Scottish farm incomes, the industry provides a base for an important part of the diet of very many people. The quality of our seed has made a substantial contribution to the steadily increasing yields of the potato crop.
I am particularly pleased to move the approval of this order, because the origin of the proposal for the establishment of a development council was made to me by the Scottish Seed Potato Association. This association was set up by the industry itself and it has collected a voluntary levy to finance its work from about half the producers, including substantial representation of the important merchant grower sector. I am a member of the association: I have paid my levy and I have given strong support for its work on every possible occasion. However, the association feels that work to promote the products of the industry should be paid for by the whole industry, and that voluntary contributions
708
would decline if the willing participants felt that they were having to carry a substantial number of "freeloaders" who would benefit along with the contributors. The Government have accepted the validity of this argument and this order makes provision for a compulsory levy to be paid by all producers of seed potatoes in Scotland.
The Act of 1947 requires that before establishing a development council the Minister responsible shall be satisfied that a substantial number of the persons engaged in the industry want it, and he must consult the organisations representative of people in business and in employment in the industry. To that end, we have carried out a poll of all seed potato producers in Scotland and we have consulted organisations which we considered to represent both producer and merchant interests, as well as those of employees in the industry. Of the producers who responded to the poll 62 per cent. supported the proposal to set up a council. No objections were expressed by the organisations consulted, but a number of useful suggestions were made and the present draft order incorporates a number of changes resulting from these suggestions. The main organisations concerned have been further consulted about these changes.
Before turning to the order itself, I should like to say something about the situation in the industry. I have already pointed out that the industry is important but it is fragmented, being made up of many small producers and individual merchants. It has long been recognised that some form of central organisation would help the industry. This was so even some years ago, when the industry was largely concerned with supplying a "captive market" South of the Border. It is much more important now when there is the possibility of competition from the European Community within the captive market, and when overseas export markets have assumed major importance as customers. Thus in both home and overseas markets, our industry faces well-organised competition which it is not organised to meet. In the other main seed-producing countries of the Community, the Netherlands and France, there are well-established national or regional organisations which can collect levies to finance their efforts to promote the sales of their products.
What this order will provide is a basis for an organisation by which the Scottish industry, by its own efforts and with its own money, can fight back. It will not involve any public expenditure in its creation or its operations, because it will be financed by the levies collected. Nor will it mean more civil servants, because it will engage and pay for its own staff. It could be described as a "quango", but if it is, it is one which the industry itself has asked for and which the industry itself will finance. Its powers would be limited essentially to the collection of a compulsory levy, which it would do on the basis of information which is published annually by the Department of Agriculture and Fisheries for Scotland as a register of seed potato crops. The council would not be empowered to market seed potatoes, to enter premises, to demand information from producers or merchants or to impose fines for failure to provide information. What is proposed, then, is a small representative body with very limited powers, but with important executive functions to perform. The order proposes a maximum rate of

709
levy of £15 per hectare—the actual rate is likely to be less initially. On the basis of present production, this would yield a maximum of about £300,000 annually, but this relatively modest sum would provide the potential to achieve significant advantages for everyone in the industry.
The order, like the council which it aims to set up, is small and uncomplicated. It provides for the establishment of a development council with specified functions. The majority of its members will be appointed from nominations of both producers and merchants (many of whom are also producers) to be made respectively by the National Farmers' Union of Scotland and the Scottish Potato Trades Association. One member will represent the interests of workers in the industry: two will be independent members, of whom one will be chairman; and, if it appears expedient, not more than two other members with special expertise in marketing and distribution may be appointed. The main provision is for the collection of an annual charge to meet the legitimate expenses incurred by the council in carrying out its assigned functions: it covers the possibility of further contributions of up to £500 annually for this purpose from interested parties, such as traders or exporters who may not be producers. Finally, provisions are included for the routine handling of the council's monies.
I am certain, in my own mind, that this order will be of great help to the Scottish seed potato industry in meeting a very real challenge from other seed potatoes which are aggressively and effectively marketed by its well organised competitors. I commend it to your Lordships, therefore, as a desirable and logical step forward in improved marketing which is generally recognised to be necessary. My Lords, I beg to move.
Moved, That the draft order laid before the House on 17th November be approved.—(The Earl of Mansfield.)
5.56 p.m.
Lord Ross of Marnock: My Lords, I think we are grateful to the Minister, once again, for bringing in something that is fairly well agreed in the House. I was delighted to hear him saying how much he welcomed this quango, and to see how he managed to avoid the use of the words "closed shop". He might have been more careful about his use of the term "free-loaders" and about compelling anyone who will get a benefit to pay, whether they want to or not.
But there has been pressure, for at least the last 20 years, for some central organisation that would act on behalf of the Scottish seed potato industry. Of course, one section of the industry, mainly prompted from Angus, set up the Scottish Seed Potato Association which, with the achievement of this new development council, will itself go out of existence altogether. This is a very important agricultural resource. We have the facilities, we have the climate, we have the soil and we have built up an expertise and have produced what are probably, as the Minister said, the best seed potatoes in the world. There is quite a competition in another place about which part of the world merited mention, and anything from the Pentlands, from Angus and from Perthshire has got its mention today, as well as anything from Bute, and in particular, Arran. The value is about £40 million, two-thirds of which is outwith
710
Scotland, while £5 million of that represents exports abroad.
I think the feeling is that we must be careful here. We cannot rest on our laurels. There has been criticism that we are under certain pressures. There has been a shrinkage of demand. I do not know whether the Minister noticed it, but last year there was a 7 per cent. fall in the production of seed potatoes. The figure fell to, I think, 20,300 hectares. That is in addition to the fact that we are open to challenge from the EEC. We had a protected market earlier, so far as England and Wales were concerned. Now we do not have that. Then the Dutch, who export more than the whole of the Scottish production of seed potatoes, might well come in if we let things slip. For about 60 years there has been a close connection between the Scottish Office, the Department of Agriculture and Fisheries in Scotland and the industry.
We have taken steps to control, protect and improve the quality of Scottish seed potatoes but, as the Minister said, there is fragmentation. There is no commercial organisation big enough to give authority and financial backing to the kind of moves required to be made to promote exports and sales. I believe that it was the National Farmers' Union, and the Hay Committee Report which they commissioned, which pressed for this for a long time.
It is fair to say—and the Minister should tell the House—that there was not unanimity about it. Because of the very nature of the council and because of what has been laid down in respect of the levy one could not expect it. But the Scottish Office carried out a consultative referendum. I noticed that there was no mention of the figures. In fact, 65 per cent. of the people involved in the industry voted. Of that 65 per cent., 62 per cent. were for and 38 per cent. were against. If my calculations are right they might just, but no more, have got past that celebrated referendum figure of 40 per cent. which was laid down in respect of Scottish devolution.
Agreement has now been reached. It says a lot for the work that has been done that agreement has been reached. The structure of the industry demands that it should be reached. The position in which the industry finds itself and the challenge which it faces means that agreement is required, and I am glad to say that this has come about.
Now £15 per hectare should produce about £300,000. An organisation working on that basis is not going to be very "lush". Of course, it has other powers in respect of money. But is it going to be £15 per hectare? I understand that it is much more likely in the first instance to be about £10 per hectare. In a council which consists of 12 members from the producers and those in the industry, one from the employees, two independents and two special members—which comes to 17—why should the quorum be as high as nine? It means that more than half of the council are required to be present before there is a quorum. Furthermore, who is going to appoint the chairman? Am I right in thinking that he is going to be appointed by the Secretary of State and that the chairman is going to be one of the independent members? This is the kind of thing which ought to have been left to the council itself.

711
There is already in existence a Potato Marketing Board which is equally concerned about the sale of potatoes. There is also the National Seed Development Organisation whose very purpose is to look at seed varieties, including seed potato varieties, to see whether we are up to date, whether they are meeting the needs of the various markets, and what can be done. The organisation which is to be formed will be required to liaise very closely with these organisations. I do not know whether the Minister has noticed that these two organisations are to set up a company which is to be called Solanex, which means Export of Potatoes Limited, to develop markets overseas for potato varieties. These varieties are to be bred at state-aided research institutes—for instance, in Scotland at Mylnefield, in England at Cmabridge and in Northern Ireland at Lough Gall. The Northern Ireland organisation and the Scottish organisation, when it is formed, are to be invited to join. Could we be given a little more information about this and about what effect it will have upon the first year's levy? The people who are interested in this part of the industry tend to be very single-minded people. They must be very pleased indeed that this step has been taken. I certainly wish it well. But is there any question of the Potato Marketing Board extending its activities in the future and taking over this organisation? I believe that the House should give its backing to an important industry whose quality we want to retain and build up.
Lord Mackie of Benshie: My Lords, I, too, would very much like to welcome the setting up of the Scottish Seed Potato Development Council. It is probably overdue. The history of the promotion of Scottish seed potatoes is interesting. As the Minister said, we produce the best seed potatoes. The justification for this statement is that there has been an enormous amount of propaganda in the farming papers against Scottish seed for as long as I can remember. The Northern Irish came into the picture at the start of the war, and afterwards, with an organisation which had the distinct advantage of inspection at the ports. They had a Government organisation which was able to give an after-sales service. We did not have this in Scotland.
Despite all these disadvantages, the inherent quality of Scottish seed has held the English market. I know many extremely tough and commercially minded English farmers who swore at me about Scottish seed and the standard of dressing but who eventually went back to it. With this inherent advantage I believe that the new council has a tremendous chance to expand the business.
As the noble Lord, Lord Ross of Marnock, said, Holland exports more seed than we grow altogether She has a very disadvantageous climate. Her lowlands abound with aphids in all sorts of forms. They go to enormous lengths to control the pest and to produce a seed which they market around the world. Because of our natural advantages, this new council can do a tremendous amount to expand the trade, in particular the export trade. If we can hold up against the disadvantages of propaganda in the trade
712
with England, I am sure that we can push it into other countries as well.
May I ask the Minister why the Secretary of State is to appoint the chairman—if he is to appoint him? The chairman will be a vital part of the organisation, because this body will have to grow—obviously gradually. It will not have a great deal of money, and will have to use that money to the best advantage. As the noble Lord, Lord Ross of Marnock, said, it will have to co-operate with all the other bodies in the business in order to promote the trade as a whole.
I am sure that a body of this sort, to promote Scottish seed, is right. We cannot have a national body, like the Potato Marketing Board, representing the special interests of Scotland. It is an excellent concept. Considering the comments we heard in the last debate, the Government have moved with remarkable speed to set it up. However, it will need to be carefully watched and it will require people of the highest standard. And as it develops it will certainly need more money. I welcome its setting up.
The Earl of Mansfield: My Lords, I should like to thank both noble Lords who have expressed their welcome for this fairly modest measure. As I said at the beginning, it is barely a Quango if, indeed, it can be called a Quango at all. But I believe that it will do nothing but good. I was conscious when I drafted my remarks that the term "freeloader" might grate a little on the usceptibilities of the noble Lord, Lord Ross of Marnock. I appreciate that I suppose it could be said that we are going some way towards setting up what might be described as a closed shop. The difference between this and other sorts of closed shop would be that, first, we have had a poll before it was set up—and I shall come to that—and secondly, unlike other closed shops this one will not prevent individuals from working in their chosen occupation, that is to say producing and selling seed potatoes. Those who do not pay the levy will certainly not be thrown out of their job in any way, but they may find themselves liable to pay for certain useful services by virtue of a civil suit.
The noble Lord, Lord Ross of Marnock, pointed to the percentages. I do not think that a previous referendum is really comparable, but the favourable vote of 62, which I mentioned in my opening remarks, is well above the 52 per cent. which I think was the figure in the devolution poll. The proportion of the total electorate was over 40 per cent. of those who were entitled to vote, as compared with 33 per cent.
To come to slightly more serious matters, the noble Lord, Lord Ross, first asked me, in effect, whether there is a possible association with the Potato Marketing Board and the National Seed Development Organisation in Solanex. The answer in short is that, when this company was set up, a space (if I may so describe it) was left for the Scottish Seed Potato Development Council to occupy, if it wishes to do so. But of course it will be up to the Council to make its own decision. The opportunity is there if it wishes to avail itself of it.
The noble Lord, Lord Ross, then asked about the Potato Marketing Board and whether in fact it would take over the functions of the Seed Potato Development Council. As the noble Lord will realise, the Potato

713
Marketing Board, which is a Great Britain organisation, is primarily concerned with the sale and promotion of ware potatoes. It turns its attention to seed potatoes to a very small degree. I do not think it would ever want to take a leading part or indeed to have anything much to do with the promotion of Scottish seed potatoes, though, in the original thoughts and consultations which we had in the early days of this exercise, we certainly consulted the Potato Marketing Board. However, even if it did, it is not possible for it to do so under the terms of the Act.
The noble Lord, Lord Mackie of Benshie, asked in effect about the chairman. He is one of the two independent members of the council and, as with other organisations which are fairly similar to this one, the appointment will be by the Secretary of State for Scotland. I think that on reflection noble Lords will agree that this is the best way of achieving a useful body which will look after the money which it levies from potato growers in the most efficient and, one hopes, effective manner.
On Question, Motion agreed to.

Motor Vehicles (Variation of Speed Limits and Speed Limits on Motorways) (Metrication) Regulations 1981
6.14 p.m.
The Parliamentary Under-Secretary of State, Department of the Environment (Lord Bellwin)The Parliamentary Under-Secretary of State, Department of the Environment (Lord Bellwin) rose to move, That the regulations laid before the House on 19th October be approved.
The noble Lord said: My Lords, I welcome this opportunity to explain why we are introducing these regulations. In the first place, I wish to make it quite clear that they are not controversial and I assure your Lordships that it is not in any way an attempt to introduce metrication by the back door. What we are doing is bringing our primary and secondary legislation into line by removing from the former certain proscribed imperial units. The need for these amendments arises from United Kingdom obligations under the EC Directive 80/181 on Units of Measurement (formerly Council Directive 71/354 as amended by 76/770), which obliges us to metricate certain units wherever they occur in our law. The task has already been done in our secondary legislation in the course of amendments for other purposes, but a specific exercise is needed to do the job in primary legislation. It is a simple matter of completing a task which is already three-quarters or more done—and it would, indeed, he anomalous if it were not brought to a conclusion.
In this amendment, the units involved are: square inch, ton, hundredweight and degree Fahrenheit. I should like to emphasise that only proscribed units have been metricated, using conversions which are well known in our secondary legislation and have caused no difficulty to manufacturers or anyone else. Imperial units such as mph are not included in this metrication exercise, as the Community has postponed making a decision on this and other controversial units until the end of the decade. These amendments therefore will have no effect at all on our road signs.
The draft regulations form part of a larger metrication exercise to delete references to proscribed units which have been found mainly in the Interpretation sections, (containing vehicle definitions) of the Road Traffic Acts 1960 and 1972. the Road Traffic Regulation Act 1967 and the Transport Act 1968. These Acts have been metricated by two statutory instruments under the negative resolution procedure. They are Statutory Instruments Nos. 1981/1373 and 1374, which were laid before Parliament on 5th October 1981 and came into effect on 1st November 1981. The metrication exercise is being carried out by three statutory instruments, as our legal advice was that they could not be combined in a single instrument.
The present regulations metricate certain imperial units in the vehicle definitions found in Schedule 5 to the Road Traffic Regulations 1967 and the Motor Vehicles (Speed Limits on Motorways) Regulations 1973. These lay down vehicle speed limits, but the regulations make no changes to the speed limit requirements themselves, which are still subject to review following the Armitage Inquiry.
There were no adverse comments on the draft regulations on consultation, nor were any expected, as manufacturers are familiar with the units proposed which have been used in motor vehicle secondary legislation for some time. It is against this background that I submit that the regulations will harmonise motor vehicle primary and secondary legislation without causing any hardship or surprise to manufacturers or users. I therefore invite this House to approve them. I beg to move.
Moved, That the Motor Vehicles (Variation of Speed Limits and Speed Limits on Motorways) (Metrication) Regulations 1981 be approved—(Lord Bellwin.)
On Question, Motion agreed to.

Wormwood Scrubs Prison
6.19 p.m.
The Earl of Longford The Earl of Longford rose to ask Her Majesty's Government what steps they are taking to deal with the grave situation revealed by the letter in The Times of 19th November by the governor of Wormwood Scrubs Prison.
The noble Earl said: My Lords, over the years this House has had to listen to me many times on the subject of prisoners and prisons. When I first became involved in penal matters as a prison visitor before the war in Oxford there were about 10,000 men and women (as always, mostly men) in prisons. When I opened the first debate held in this House in 1955 there were in prison about 20,000, and now there are 44,000. It is not exactly a success story, either from the personal or from the national standpoint. Today I shall he quoting mostly the views of others, although my own attitude should become plain before the end. If for reasons of time I rely mostly on the The Times I apologise to other newspapers, particularly the Guardian, which has a unique record in this field.
Noble Lords will surely agree that the letter which appeared in The Times last Thursday from the governor of Wormwood Scrubs was perhaps the most startling in living memory. I will refresh the minds of your

715
Lordships with a few quotations. The governor began his letter to The Times:
"As the manager of a large penal dustbin I wish to write about the latest proposal of the Home Secretary to reduce the prison population".
He then discusses that proposal, finds it very inadequate, and proceeds:
"From my personal point of view I did not join the Prison Service to manage overcrowded cattle pens, nor did I join to run a prison where the interests of the individuals have to be sacrificed continually to the interests of the institution, nor did I join to be a member of a Service where staff that I admire are forced to run a society that debases".
I will pick out only one more sentence:
"I wish to give notice that I, as the governor of the major prison in the United Kingdom, cannot for much longer tolerate, either as a professional or as an individual, the inhumanity of the system within which I work"—
a system for which, I hope I can say without discourtesy, the noble Lord must be held responsible in this House, though the ultimate responsibility lies elsewhere.
I had assumed when I read that letter in The Times that the governor would be called upon to resign, that he might indeed have been called on to resign before I read the letter. Not at all, I am glad to say. By the next morning we learned that there was no intention of reprimanding him. The impression was gained, or has been gained by me and others, that for the governor's point of view there is a good deal of sympathy in the Home Office, not least on the part of the Home Secretary, and I do not doubt on the part of the noble Lord who is to reply to this debate. Outside those circles widespread support has been expressed almost everywhere.
I hope that the House will agree that this matter cannot be left in this unprecedented condition. The governor of our largest prison indicates that he intends to resign unless something drastic is done. Is something drastic going to be done? The Home Secretary cannot shirk the responsibility—and our much-respected Home Secretary is the last man to shirk any responsibility—of responding to the governor's letter in clear words and urgent action There is general agreement that something drastic must be done. But let me acknowledge at once that there is not agreement as to what form that action should take. I would hope that this debate would clarify the options and in that way promote positive reforms.
Before the Conservative Party Conference Mr. Whitelaw appeared to favour a policy of introducing automatic parole for short-sentence prisoners. To quote The Times of Friday—and I am quoting The Times, and these might or might not be my own views:
"Since the Party Conference Mr. Whitelaw has gone cold on the idea… He is now ready to ditch it".
Well, The Times may know more about what has been going on in Mr. Whitelaw's mind than I do. It may well be, and I am ready to believe this, as perhaps a slightly more glorious explanation, that he has had to give way under pressure from the judiciary at all sorts of levels. Be that as it may, he is now in fact abandoning the proposal which he favoured earlier and he is backing the idea of the courts being given power to
716
suspend part of a sentence.
To quote The Times again:
"There is a vast difference between these two conceptions. Automatic parole could mean the immediate release of people already in prison".
It is reckoned that within a fairly short period the prison population could be reduced by up to 7,000. The decision would not be that of any court. By contrast, under this newer proposal of the Home Secretary, giving the courts power to suspend part of a prison sentence could have no possible effect on the existing prison population and would be outside the Government's control. I believe other eloquent and more expert speakers may develop some of these points much more closely.
I have already mentioned two methods of attempting to reduce the prison population, which I will call, without disrespect, Whitelaw Mark 1 and Whitelaw Mark 2. I must at least touch on, or at any rate mention, several others, and I do not pretend that the list is exhaustive. In its leading article on Saturday The Times mentions the possibility of an amnesty. It points out that when M. Mitterrand took office 5,000 prisoners were released. Indeed, some of your Lordships may recall, though perhaps not from first-hand memory, in 1910 the same kind of step was taken by Sir Winston Churchill, then Home Secretary, at the beginning of the new reign.
To mention another variant, the All-Party Penal Affairs Group of the Houses of Parliament has recommended the extension of remission from one-third of one-half of the normal sentence, and later they have supported the plan that I have called Whitelaw Mark 1. The prison officers have made a number of suggestions of their own, including the removal of mentally disordered prisoners from prisons. In that particular proposal I am sure there is total concurrence. There is also a strong case, which is growing stronger all the time, for legislation which reduces the level of maximum sentences. As I say, there may be other suggestions which could be made, or perhaps will be made, this evening.
Whatever the precise solution or combination of solutions that we favour, we must face a large disconcerting clement in the situation. Democratic government in this country is carried on through Parliament, whose views are expressed through the Cabinet, acting more particularly in this area through the Home Secretary of the day. If we say, as we do say, that the will of the people must prevail in a democracy, we mean that within his own departmental area, that is the penal area, the will of the Home Secretary backed by the Cabinet should prevail. It is utterly wrong that the Home Secretary should be thwarted, as he now appears to be thwarted, by the judiciary, as I say at all levels. The judiciary are the respected custodians of the legal standards in this country. They of all people must never place themselves above the law. Let me dwell for a moment, before I close and give way to better speakers, on the ambiguity contained in the phrase "the independence of the judiciary"
The Lord Chancellor: My Lords, may I intervene for a moment. There is absolutely no truth in the suggestion that the judiciary thwarted the Home

717
Secretary; nor have they the power to do so. Since read a certain piece in the Sunday Times I have been particularly at pains to discover that. The idea that the judiciary could disregard the will of Parliament is utterly repugnant to their whole attitude, and there is not a word of truth in it.
Several noble Lords: Hear, hear!
The Earl of Longford: Well, noble Lords say "hear, hear", without much reflection. I would say there is not a word of truth in the observations that have just been offered to us by the noble and learned Lord the Lord Chancellor. I am not going to give way for a moment; there is not a word of truth in the observations he has just offered us.
The Lord Chancellor: My Lords, I do not know on what authority the noble Earl is questioning my word. I have been at great pains to discover the truth; there is no truth whatever in the suggestion that the judiciary have any desire whatever to thwart the will of Parliament, and I deeply resent that my word should be questioned on that matter. What is true, of course, is that the judiciary were consulted and expressed their view, as they were entitled to do. But of course they accept the sovereignty of Parliament, and it is wholly wrong for the noble Earl either to suggest that the contrary is true, or to challenge me when I assure him on my word of honour that it is not so.
The Earl of Longford: My Lords, I must point out that the noble and learned Lord the Lord Chancellor has challenged me and has said that what I have said is untrue, and what is sauce for the goose is, I am afraid, sauce for the exalted gander. The truth is that the Home Secretary is having very great difficulty—if the noble and learned Lord prefers to put it this way—in persuading the judiciary to give effect to the declared will of Parliament. There will be plenty of this tonight, so it is no good treating me as though I am some sort of eccentric. This view will be expressed several times and noble Lords had better get used to it.
The Lord Chancellor: My Lords, this is a question of fact and not a question of opinion. The Home Secretary is entitled to consult the judiciary as to what they consider to be desirable. The judiciary are entitled to express their opinion when consulted. But to suggest, as the noble Earl has quite unambiguously done, that the judiciary are seeking to thwart the will of Parliament which has not so far been expressed in an Act of Parliament, is wholly untrue and I have been at great pains to discover the fact. It is an allegation which ought never to have been made and that is a question of fact and not opinion.
The Earl of Longford: My Lords, I am afraid that the facts here are, in fact, the sentences which are being passed by the judges. It is not a question of the psychology of the judiciary; it is a question of what sentences they are passing and at the moment the sentences that they are passing are thwarting the will of the people declared through the Home Secretary. If the noble and learned Lord feels happier about that formulation, then so be it, but that is what I am saying.
The Lord Chancellor: My Lords, this really will not do. The noble Earl is now changing his ground. The noble Earl was talking about a plan which my right honourable friend consulted the judiciary about. They expressed their opinion upon it, but the idea that they were thwarting the will of the people—whatever that may mean—or the Home Secretary or Parliament is entirely wrong and it ought never to have been made. Now the noble Earl is making a totally different allegation which is totally false too. Parliament lays down what are the maximum sentences to pass and the judiciary decide as a matter of their own independence and judgment on the facts of the particular case what is the appropriate sentence. This attack on the judges is wholly wrong, ought never to have been made, is utterly without foundation and ought to be withdrawn.
The Earl of Longford: My Lords, the noble and learned Lord says that it ought to be withdrawn. Why should it be withdrawn? I repeat every word that I have said. I have no need to withdraw it at all. What I am saying will be said, in effect, by other noble Lords. I suggest that the noble and learned Lord cools it a bit because I think that he will get quite a bit of this medicine during the evening and if he gets equally annoyed with subsequent speakers he will have a bad time of it. I repeat every word that I have said and Hansard must judge between us.
Let me dwell for a moment on the ambiguity contained in the phrase "the independence of the judiciary". Of course we rightly pride ourselves on the independence of the judiciary when the courts are dealing with particular cases. We certainly do not want any political interference there. But no-one, after a moment's reflection, could say that the sentencing policy of this country, the general level of sentences passed in this country, should be determined exclusively by the judiciary. Certainly the sentences which judges do pass are very much influenced by legislation. They are, in fact, acting within laws passed by Parliament. So to say that sentencing is a matter which entirely rests with the judiciary would be an absurdity. I had better not get too worked up because it might escalate as between myself and the noble and learned Lord. No one could possibly argue that after a moment's reflection.
No one supposes, for example, that judges should be allowed to decide whether we do or do not have capital punishment in this country. They might or might not wish to have it. It might seem to be their idea of a good sentence, but in fact the law has decided to abolish it and they must act within the law. The noble Lord opposite is frowning as though in bewilderment. It is a perfectly clear point. We either decide on the general level of sentences through the democratic process or we leave it to the judges, and at present it is left far too much to the judges.
Let me make the point plain. If it is concluded by the Government of the day, supported strongly by the opposition parties, that sentencing policy in this country is too severe—and that is on the whole the conclusion of official reports—compared with the sentencing policy in other European countries, then the courts have no right whatever, moral or constitutional, to defy the implementation of that policy. I am

719
sorry to speak bluntly but it is high time that this issue was brought into the open.
I shall now give way to other speakers who may have a tranquillising effect. I have had dealings with well over a dozen Home Secretaries on penal matters. There is none for whom I have a higher personal admiration than Mr. Whitelaw. I would like to believe that this debate will strengthen his hand. I implore him to recognise that the variety of the remedies suggested is no excuse for failing to take drastic and urgent action. I hope and believe with all my heart that he will not fail.
6.36 p.m.
Lord Avebury: My Lords, I warmly welcome the initiative of the noble Earl, Lord Longford, in raising this important question, and I am glad to follow him into some of the areas where he has perhaps entered into some controversy although I shall attempt to pour a little Largactil on troubled waters, if I may put it that way.
I must begin by agreeing with the noble Earl that it is totally unheard of for the governor of one of our major prisons to ventilate his anxieties in the columns of The Times, and I think that the only pity of it is that a person within the system, such as the governor of Wormwood Scrubs, who had seen what was coming from a mile off, had waited until, as Mr. McCarthy put it, his patience and tolerance were finally exhausted. He has put his head on the block. I hope that other governors and that chairmen of boards of visitors will now speak about what is going on in the prisons, so that public opinion can be alerted to the intolerable strains which are being imposed on staff, the absence of any pretence whatever of rehabilitation for prisoners and the imminent risk of a total breakdown of the prison system.
I am going to refer to some of the recommendations of the Parliamentary All-Party Penal Affairs Group which has already been mentioned by the noble Earl, and I want to ask the noble Lord, Lord Belstead, whether he has had a chance to study those recommendations and whether he will be good enough at the end of this debate to make some comment on them, in particular on those which I would now like to mention.
The report was published in June under the title Too Many Prisoners and it contained quite a number of proposals which would greatly alleviate the strains now being imposed on the prisons. I mention first the important recommendation which the noble Earl also touched on, that mentally ill and disordered offenders should not be in prison at all. Because the National Health Service has not made provision for these patients, hundreds if not thousands of them have to be accommodated in the prisons, including Wormwood Scrubs, where I visited the medical wing not so very long ago and found that there were between 30 and 40 patients being cared for who the principal medical officer told me ought really to have been in psychiatric institutions.
The all-party group refers to the Butler Committee on Mentally Abnormal Offenders which recommended that in each of the regional health authority areas of England and Wales there should be secure psychiatric
720
units for these persons. Not a single one has been constructed and although there are temporary units, I understand, in which some 170 patients are accommodated, that is a drop in the bucket compared with the need. I should like to ask the noble Lord the Minister: What are the Government's present plans for providing units such as the Butler Committee recommended—secure psychiatric units—in England and Wales?
There is one thing that the Government have done. The all-party committee mentioned that the courts' powers to impose restriction orders under Section 65 of the Mental Health Act 1959 should be limited to those cases where the public needs to be protected from serious harm. I was very glad to see that this is in fact embodied in Clause 26 of the Mental Health (Amendment) Bill because it was found that hospitals were reluctant to accept patients when they could not be allowed out or transferred to another hospital or discharged without the leave of the Secretary of State.
More generally on the mentally ill offenders, the all-party group recommends that:
"there should be a substantial increase in hostel provision and other forms of accommodation catering for the mentally disordered. The range of voluntary after-care hostels for offenders grant-aided by the Home Office should include some projects catering specifically for offenders suffering from mental disorders".
I should like to ask the noble Lord the Minister: What is being done? The all-party group stresses that it is indefensible for a mentally ill and disordered person to be detained in prison, and yet we know that there are many thousands of them who have to be accommodated there because no other provision is made for them by society.
I want to refer to the particular problem of prisoners who were sentenced for acts of violence and who may be thought to be dangerous to other prisoners. In this matter our practice, under Rule 43 of the Prison Rules, seems to be to segregate those persons, which gives the governors of prisons a quite draconian power to lock a man away in a segregation unit virtually for an indefinite period. In our prison system at the moment there are three men who have been virtually in solitary confinement, where they have not seen another human being for the last three years and more. I really think that this is intolerable.
We shall have to consider in a more general way whether Rule 43 should be modified so that we do not run the risk, as we are at the moment, of violating Article 3 of the European Convention on Human Rights, by reason of the fact that we are imposing a cruel and inhuman punishment on these individuals by locking them away from all other human society for substantial periods of time. So much are they isolated that they are not even permitted to attend church services or to go to the prison library; so they may go throughout the day without encountering another human being. The psychological effect of this over a period of time can only be imagined. Yet although the board of visitors has to approve the renewal of the segregation order every month, a prisoner with whom I have been in touch tells me that he is only visited by a member of the board of visitors every 12 weeks and that he is practically never examined by psychologists to see what may be the effect of these prolonged periods of isolation on his health.

721
Related to the problem of the mentally-disordered offender there is the person who commits offences while under the influence of drink. The May Report said that prison should be avoided for drunkenness itself. Even the Home Office in 1971 said that the right answer was to establish detoxification centres. The all-party group repeats that detoxification facilities should be established in every urban area where there is a substantial number of arrests for drunkenness. I go along with that. However, I should like to add something to it. The Home Office should spend much more on prevention by encouraging, wherever possible, voluntary effort, such as that of the Conservation of Manpower Unit, which aims to treat and give support to alcoholics within the community. I think that if there were more agencies like this—I should be grateful if the Minister would consider this—the courts might be able to refer offenders to them instead of giving them custodial sentences.
There is a whole host of other people who are in prison who ought not to be there. There are fine defaulters and maintenance defaulters, and there are plenty of ways in which they can be kept out of prison and in which their financial obligations can be met. There are those who are in prison for soliciting, and we have had several debates on that in your Lordships' House. There are those people who are convicted of simple possession of cannabis; convictions under the vagrancy Acts, other than for "sus"—which I am glad has been abolished—indecent exposure, and a whole host of minor offences for which prison is really not an appropriate penalty.
Then there is the important question of detention pending deportation after a non-custodial sentence, when it is quite common for a person to spend five or six weeks in prison for the simple reason that, if, for example, the offender is a shoplifter and is sentenced to a fine, the Home Office will call for the person to be detained under the immigration Acts pending deportation because they are afraid that the person will go to ground. There are many cases which I have referred to the noble Lord's colleague in another place, Mr. Tim Raison, where, after the courts have imposed a non-custodial sentence, nevertheless the offender spends five or six weeks in prison waiting for the expiry of his right of appeal against conviction and sentence and against the country of destination. It is absolutely intolerable that the court should give someone a non-custodial sentence, but that they should end up spending several weeks in prison.
Even after the end of a person's custodial sentence—because the Secretary of State does not normally make up his mind whether to accept the recommendation of the court that the prisoner should be deported until very near the end of the sentence—it quite often happens that he remains in prison awaiting the decision of the Secretary of State and the expiry of this right of appeal against the country of destination. Even if the prisoner says that he does not want to appeal, as the law now stands he must be given the time to exercise that right.
I turn to the length of sentences on which, rightly, the noble Earl, Lord Longford, concentrated. I want to refer to the Advisory Council on the Penal System and its recommendations of 1978. It seems to me that the council proposed a very sensible scheme: that we
722
should review all the maximum sentences that the courts could impose and reduce them to 90 per cent. of the maxima that were actually used by the courts during a period of three years—I think 1974 to 1976. In conjunction with that, the council provided for an exceptional sentence in the case of certain offenders who, it was thought, because of the nature of their offences and the circumstances in which they were committed, ought to be taken out of circulation for the safety of society. A great deal more about that has come to light since the advisory council reported, because the Home Office has produced this excellent research study, Taking Offenders out of Circulation, which shows that because of:
"The infrequency of really serious crimes of violence, their apparently generally random quality and the rarity of anything like a genuinely dangerous type' offers little encouragement for a policy which aims to reduceserious assaults by selective incapacitation of those with violent records".
I am inclined to the view that we should accept the advisory council's recommendation on the reduction of maximum sentences, but without the corollary of the exceptional sentences for these so-called dangerous offenders who are so difficult to identify.
On the question of parole, the all-party group recommends, as the noble Earl mentioned, something very like the Northern Ireland system of one-half remission. I suppose that if we did that, the parole system would still continue to grant that extra one-sixth that would remain with longer sentences; so that if a person qualified for the total of which he was capable, one-sixth plus one-half would be equal to the two-thirds reduction in the length of sentence that he may enjoy at present.
On this point I was, as was the noble Earl, dismayed to see the reports that apparently the judges and the magistrates—I am putting it as uncontroversially as I can—have persuaded the Secretary of State to withdraw the proposals that he was on the point of introducing for automatic parole on shorter sentences. I am obliged to agree with the noble Earl, Lord Longford, that just as the Executive should not be allowed to interfere with the courts, equally it is intolerable that the judiciary should exercise a veto on legislation. I agree that they have not stopped Parliament from doing something which it might otherwise have done, but I think that the question is whether the degree of influence that was exerted on the mind of the Home Secretary was tantamount to dictating to Parliament what it might or might not do.
This is what the noble Earl was talking about; that before the proposals have even been laid before your Lordships or laid before another place, the judiciary have had the ear of the Home Secretary in a way that Parliament has not, and so they have dissuaded him from taking what most people thought to be a very sensible step, which would have had the effect of reducing the prison population by something like 7,000 persons. And all the King's horses and all the King's men, all your Lordships and all the Members of another place, are apparently not going to be able to restore the scheme that the Home Secretary originally had in mind, but instead of that we are going to have a system which, according to the director of the National Association for the Care and Resettlement of Offenders, far from reducing the prison population, is

723
actually going to increase it. When these proposals come before us we shall have to consider them carefully to see whether, despite the objections of the judiciary, we cannot in some form restore and reinforce the Home Secretary's original intentions.
Finally, I hope that the Government will do their best to expedite the discussions which are going on in the Council of Europe on a draft treaty to enable prisoners to be returned to their countries of origin to serve their sentences. It is not only a humane idea that prisoners should be among people who speak the same language as they do and who follow the same customs, but it would have the incidental advantage of reducing the burden on our prisons because it happens that there are several times more foreigners serving custodial sentences in Britain than United Kingdom citizens in prisons abroad.
We should not merely be looking for expedients to reduce the prison population because of the tremendous pressure on the system which the governor at Wormwood Scrubs has outlined, but the proposals which I have mentioned and the noble Earl has mentioned are all desirable in themselves, and their urgency is manifest in the letter from the governor of Wormwood Scrubs.
6.52 p.m.
Baroness Macleod of Borve: My Lords, we are all indeed grateful to the noble Earl, Lord Longford, for raising this problem in his Unstarred Question this evening. May I at once assure him that all of us in your Lordships' House, and a vast number of people outside, are very disturbed at the conditions in some of the prisons today which are mostly caused by overcrowding but of course in some cases by old buildings. Although the subject of the Question is specifically Wormwood Scrubs and the Governor's letter, we all know of other major prisons which are suffering some at least of the same problems outlined in the Governor's letter.
I should like to take this opportunity, as a member of the Parole Board, of personally thanking members of the prison staff of all levels for the great care that they take in the dossiers that we see as members of the parole board. It is quite obvious that they give a great deal of time to reporting on the inmates for good or ill, and it is my belief that they go out of their way to say the best things possible for the prisoners under their care.
Of course to accommodate the perpetrators of serious offences—some 2½ million serious offences—we should like to see more prisons built where each inmate could have his own cell, no slopping out, with adequate education and work facilities. But as a prison would take at least 10 years to build we have to tackle the overcrowding problem in a different way. Whatever is done I submit that it is impossible to satisfy the judiciary, the magistracy, Parliament, the prison service, the Home Office, and the general public. As my right honourable friend the Home Secretary recognised in a recent speech to NACRO—I think it was 10th November—there is a good deal of public anxiety about the level of crime. I think it follows that those members who have been mugged, burgled, robbed, and had violence used against them should want the offenders taken out of circulation.
The Home Secretary also said that it must be the first priority of any Government to maintain public
724
confidence in the criminal justice system as a whole. In this context the possibility of reducing automatically by a specific amount any sentence passed in any court did not commend itself to anyone despite the fact that up to 7,000 prisoners would have been discharged at once.
In his NACRO speech the Home Secretary hinted that Section 47 of the Criminal Law Act 1977 should now be implemented as a means of reducing the prison population. As noble Lords will know this section provides for the partial suspension of prison sentences between six months and two years. As it stands, the part to be held in suspense must be not less than a quarter nor more than three-quarters of the whole term. I am sure this would be helpful as far as it goes, and I am equally sure that the judiciary and everybody involved would respond to that.
However, as a magistrate, I should like to widen the scope of this provision. We are not empowered to imprison an offender for more than six months. Therefore, this section does not apply, as it stands, to magistrates. I should like to see the reduction in the sentence time to three months plus, and also the power to make the minimum period in custody to 28 days. This would also mean a far wider range of dispersal than before which in itself, in my view, would be a good thing. Incidentally, I wonder whether the Minister could tell me if it is envisaged that remission as practised now would be part of the sentence. We are constantly being told that even one month without one's freedom is a very salutary lesson and can be a deterrent. We are shortly to have a Criminal Justice Bill, and I wonder whether my noble friend the Minister is able to give us any indication of the Government's thinking on these points.
Lord Avebury: My Lords, would the noble Baroness allow me? What does the noble Baroness think of the suggestion that has been made by the director of NACRO that the more the minimum is brought down, as she has proposed, the greater the likelihood that the courts will use the sentence to give a taste of imprisonment to those who otherwise might not have been awarded a custodial sentence at all?
Baroness Macleod of Borve: My Lords, the noble Lord will be most surprised to hear that I am just coming to that. I know that some people will say that given these powers some magistrates may abuse them, but especially if we have guidance from on high, and being well aware of the prison problems, I personally feel confident that this will not happen. There will inevitably be a quicker turnover of inmates in some prisons which might necessitate more staff in these prisons to do the paperwork, because I believe that there will be a great deal more paperwork. But we must try something, and I believe that as it is possible to implement this almost straight away, and if the Home Secretary agrees and this is his thinking, then I for one, realising that these are his thoughts and his thoughts are on the right course, will certainly support it.
6.58 p.m.
Lord Hutchinson of Lullington: My Lords, we are debating this evening a situation of extreme crisis in the prison service. I should like to thank the noble Earl

725
for having introduced this debate this evening because there is no question which is more serious at the moment, no more overriding social problem that goes to the whole root of the concept of law and order, a matter so close to the hearts of the party opposite. For two years or more warnings have poured into the Home Office of the possible collapse of the prison system, not least from those noble Lords who have spoken in a number of debates here in this House.
Twenty months ago the prison governors' branch of the Society of Civil and Public Servants said:
"The prison system is collapsing under the weight of numbers. We are running out of cells to overcrowd. We doubt if members of the staff can be expected to tolerate these conditions through this summer".
For two summers they have managed to hang on, but it is doubtful whether they will be able to hang on for a third summer. Since then, the all-party Penal Affairs Group, to which the noble Lord, Lord Avebury, referred, has kept up a constant stream of practical suggestions to the Home Secretary as to how this crisis might be met.
I suggest that now the time for further discussion and argument within the context of a Criminal Justice Bill, as suggested by the noble Baroness, is past. Now—immediately—firm, clear action is required to reduce the prison population by 5,000 people. Tomorrow the prison governors in this country will demand to know what proposals the Minister has put forward tonight to meet this crisis. Prison officers are waiting to hear the same. The Penal Affairs Group, NACRO, the Howard League, the Prison Reform Trust, and of course, overwhelmingly, the prisoners themselves, are waiting to hear.
Eighteen months ago, in a debate on the plight of remand prisoners, I pleaded with the Minister for hard action and no more soothing syrup. I submit that the time for pleading has come to an end and that it is now a matter of making demands. I suggest in all seriousness that the Home Secretary should now convene a prison crisis meeting of no more than 10 or 12 individuals; of himself, the Lord Chief Justice, a representative governor, preferably Mr. McCarthy—one of the most enlightened of all governors at the moment in the prison service—a representative of the prison officers, a representative of the probation service and of the magistrates, the noble Lord, Lord Harris of Greenwich, from the Parole Board, and, particularly, a Treasury Minister, preferably Mr. Leon Brittan, who has had long experience of this matter. The agenda for that meeting should be very simple: first, that within two weeks proposals should be put forward to reduce immediately the prison population by 5,000 and, secondly, that within four weeks proposals should be forthcoming to maintain the prison population within the level of the certified normal accommodation laid down for each institution.
During the last two years, the Secretary of State has had at his disposal three outstanding prison governors—at Maidstone, Brixton and Wormwood Scrubs—each one of them farsighted, experienced and deeply concerned about this problem. They knew, and they know, what should be done. If only the Secretary of State had listened to them instead of listening to the so-called "law and order" lobby, this crisis might have been by this time partially resolved. The governor of
726
Maidstone has now resigned early and gone. The governor of Brixton has been removed as a scapegoat following an escape from that prison. The governor of Wormwood Scrubs, who has already been referred to, has broken every rule in the rule book on behalf of his staff and charges, and has threatened to go as well.
Those governors have all known, and to my knowledge have all known, and must surely have advised the Home Secretary, that the vast majority of the 4,000 remand prisoners now in local prisons should be got out of those prisons; that the "inadequates" referred to by the noble Lord, Lord Avebury—the drunks, prostitutes, vagrants, personal possessors of cannabis, and so on—should not be sent to prison under any circumstances whatsoever; that the hostel provision should be given an immediate crisis priority; and that the vacant places in open prisons should be filled.
The building trade is in recession and men are crying out for work. Sites are available in the South of England close to the central criminal courts and Inner London Sessions, and private enterprise could erect within months, if not weeks, two remand centres with hostel accommodation, with minimal but sensible security, to house three-quarters of the remand prisoners who are cramming these prisons in filthy and uncivilised conditions, with half an hour out of the 24 allowed out of their cells. These are unconvicted members of the public who have not been sentenced. Half of them receive no custodial sentence or are acquitted. What has been done since we in this House debated 18 months ago this appalling situation? I hope the Minister will tell us at the end of the debate. I suggested 18 months ago using hutted camps for the purpose. "Impossible", said the Minister, but, immediately the prison officers' crisis arose, hutted camps were introduced to hold men who were on remand and were not being received in prison.
I turn briefly to the matter of the judiciary. It is symptomatic, is it not? that in a debate of this importance, and in every debate which I have heard in the not long time I have been in your Lordships' House, no member of the judiciary is ever to be seen on the Cross-Benches, yet this is a matter of profound importance to the question of law and order.
Lord Rawlinson of Ewell: My Lords, how could a member of the judiciary in your Lordships' House, other than the Lord Chief Justice, be present who has any responsibility for sentencing for criminal offences?
Lord Hutchinson of Lullington: It is not a question of their responsibility but of their interest in the question, my Lords. For too long members of the judiciary—and, I say, members of my own profession—have taken the attitude that their job is to get on with the trial of persons and offences, to see that the law is obeyed and that defendants get a fair trial. When the trial is over they pay no attention to what happens to their clients, to those persons who appear in court, after sentence has been pronounced. For too long has that gone on, and we have seen that one of the main causes of the appalling situation in the prisons is the inability of the judiciary—and the judiciary come from the legal profession—to understand that shorter sentences must be passed, that we must move with the times, that we must see what happens in other

727
civilised countries of the western world, and not remain at the top of the league for long sentences. Notice should be taken by the judiciary and members of the legal profession of the results of the sentencing in the courts.
I said the Home Secretary was lucky to have had three outstanding prison governors. He is also lucky to have a remarkable Lord Chief Justice now. He has shown himself acutely aware of the crisis in the prisons and has laid down a number of sensible guidelines for the judges to pass shorter sentences. I do not believe it was his influence that led the Home Secretary to withdraw his previous enthusiasm for supervised early release. If there is opposition to that in the judiciary, I suspect that it comes from the magistrates and the circuit judges. I doubt indeed that it comes at all from the High Court Bench.
One of the factors—and I say this in the presence of the noble and learned Lord the Lord Chancellor—that bedevils decision and action in this area is the inability of the Home Secretary and the Lord Chief Justice to get together and hammer out a solution. I suspect that the historic fear of the interference of the Executive means that contact between these important persons is still minimal. Surely in this situation—
The Lord Chancellor: My Lords, I must contradict the noble Lord there. My right honourable friend the Home Secretary has constantly consulted the Lord Chief Justice, and is still doing so. It really is quite unfair to both the Lord Chief Justice and the Home Secretary, who are in close touch with one another about these matters, with my full approval, and sometimes at my suggestion, to suggest that their contact is minimal. That simply is not true.
Lord Hutchinson of Lullington: My Lords, I am only too happy to hear those words fall from the noble and learned Lord who sits upon the Woolsack, and of course I entirely accept that that is the situation. If that is the situation—and I accept that it is—and that constant meetings are taking place between the Home Secretary and the Lord Chief Justice on this vital matter, then I sincerely hope that, as I mentioned earlier, some solution will be found, rather than have to resort to an amnesty, to which I fear the Home Secretary might finally have to resort. That was suggested by the noble Lord who spoke earlier, and it would be an amnesty which would be the absolutely final solution, making clear the total failure of any controlled or thought out policy.
The partially suspended sentence—and I say this with respect to the noble Baroness who mentioned it—will not solve the problem. All the evidence indicates that far from reducing the number of persons in prison, it is highly likely to add to their number. All the evidence points in that direction, and in any event it cannot be a solution to this crisis which is upon us.
Baroness Macleod of Borve: My Lords, will not the noble Lord agree that until it is tried, we do not know?
Lord Hutchinson of Lullington: I am so sorry, I did not hear the noble Baroness.
Baroness Macleod of Borve: I said, will not the noble Lord agree that if we do not try it, we do not know? It has not been tried.
Lord Hutchinson of Lullington,Lord Hutchinson of Lullington, Well, my Lords, it can always be said that if we do not try something, we do not know. We have tried suspended sentences. It was thought that suspended sentences would result in a lowering of the number of people sent to prison. It had exactly the opposite effect. The trouble is, I am afraid, that in the magistracy—and I say this with the greatest respect to them—there is an overwhelming temptation to give people what is called a taste of prison. If magistrates use this new power, instead of putting people on probation, binding them over, or even giving them a suspended sentence, the result will be more people in prison than ever before.
Supervised early release was supported for a long time by Mr. Merlyn Rees in the last Government, and then abandoned by him at the last moment. The present Home Secretary appears to have gone through the same process, yet, as has already been mentioned, this system is in force in Northern Ireland. I cannot believe that the judiciary here in any shape or form would compensate—
Lord Harris of Greenwich: My Lords, will the noble Lord forgive me for interrupting? I do so only in order simply to correct the record, as I was a Minister of State when Mr. Rees was Home Secretary. At no stage when he was Home Secretary did he consider any such proposal as supervised early release.
Lord Hutchinson of Lullington: Then I am obviously wrongly informed, my Lords. I had understood—and unfortunately I do not have the context with me, but I have seen it; otherwise I would not have mentioned it —that in fact he supported this idea, but then made up his mind to drop it.
I was going to say, before the noble Lord intervened, that in Northern Ireland there is no evidence whatever that the judges have in any way compensated for the 50 per cent. remission, and there is no reason to think that they would do anything different in this country.
Of course, there are judges who would like to abolish the caution. There are judges who do not like the right to silence, who object to the safeguards of identification, who do not like the presence of solicitors in police stations. Indeed, there are some judges who have said openly that they get on much better without the inconvenience of a jury. Those are no reasons for Parliament not to legislate for human rights; and the noble and learned Lord the Master of the Rolls has spoken out at length on the abuse of power in sections of society. But for minor judges and magistrates to continue to send accused persons to prisons which cannot accommodate them, to retaliate against the implementation of early release by passing longer sentences, would in itself be an abuse of power. Such abuses of power do from time to time take place and are worthy of the attention of the noble and learned Lord, Lord Denning.
I implore the Minister to go back to the Secretary of State tomorrow with a message from this House that there are many here—I would say the majority here—who would demand this one solution of supervised early

729
release, which could be brought in at once. He should think again seriously about introducing it at the earliest opportunity.
I hope sincerely that this will be the last debate in this House on the matter of the crisis in the prisons. There cannot be anything more to be said about the matter. There is only one thing to do now, and I am sure that all prison governors agree. Everybody who has studied this problem over the past four or five years agrees that it is no longer any good tinkering with the question. The population of the prisons has to be reduced immediately, and it has to be reduced by a minimum of 4,000 to 5,000 persons. Once achieved, that reduction must be maintained. The only person who can introduce the requirements necessary to produce that result is the Home Secretary. I look forward, and shall listen with great concern and deep interest, to what the Minister has to say tonight as to what he now proposes should be done.
Baroness Faithfull: My Lords, before the noble Lord sits down, may I ask whether he would not consider that there must be an advance on two fronts, within the prisons, but within the community too? If there are to be fewer people in prisons, there must be somewhere outside for them to live. Unless there is held a conference of organisations such as the Church Army, the Salvation Army, and many other bodies, in order to set up hostels, it will be very difficult to avoid keeping people in prison.
Lord Hutchinson of Lullington: My Lords, I entirely and absolutely agree with the noble Baroness. I think I said earlier in my speech that priority—a crash programme—for hostels for that very purpose is one of the vital necessities at the moment.
7.19 p.m.
Lord Soper: My Lords, I venture to take part in the debate because I share the desperation indicated in the letter from the governor of one of the block prisons in London. It is a long time ago since I was responsible for Nonconformists and others in Pentonville prison. I remember very distinctly the realisation that then came to me, and which has not altered through the years, though now my visits to prisons are not so frequent as they used to be. The realisation was that a prison such as Pentonville or Wormwood Scrubs is one of the most uncivilised elements in a community which at least claims some civilisation as part of its normal and public life. There have of course been improvements. There has been the right of congress within the prisons, which I welcomed and which is a token of many improvements which are still being made. But those improvements do not alter in any vital degree my complete conviction that the block prison system is uncivilised and immoral, let alone unchristian.
I begin with one or two recriminations, because I think they ought to be made and need to be made. Anybody who had seen the slopping-out in a prison—I have repeatedly seen it—would be disgusted. They would regard the squalor there as no therapy, but would immediately call to mind the suggestion of the dustbin, although, at least, in some circumstances a dustbin is regularly emptied and slopping-out is a continual process, disgraceful and degrading. Then there
730
is the fact that so many prisoners have to be accommodated two or three in one cell—a cell which was originally built in the 19th century to accommodate one person, and small at that.
We had better face one or two facts about this which seem to elude general consultation and attention. There are the sexual problems. The problems of homosexual practices are far more widespread to my knowledge and experience than a great many people would like to think they are; and the overcrowding is quite intolerable. It produces a situation in which those who are required to supervise this particular dustbin must feel continuously that they are doing something which is totally unproductive and something of which they themselves should really, in their better moments, be ashamed, though they are doing a job and they feel they must continue to do it as best they can.
But I would invite your Lordships, if I may, to consider two fundamental issues which hitherto have not been introduced into this debate. The first is the concept of prison as a therapy; a remedial process; the kind of process which meets the needs of a crime-laden community and can advance the general wellbeing of that community. I do not believe that is true; and I believe that the experience of governors such as the governor of Wormwood Scrubs is that they are employed upon a task the end product of which is unavailable and the processes, therefore, ineffective.
One of the aspects of this particular issue, of course, is the assumption, which I dare say the judiciary, or some of them, share, that if prison is a good thing then more of it would be a better thing. I have learned—and I would pass on to your Lordships what I have tried to say in previous debates—that it is highly likely that those who suffer long sentences will deteriorate progressively; and the idea that the longer you have the opportunity to correct the offender the better will be his prospect of success is totally wrong. The effectiveness of prison—for good, that is—is more or less confined to the first fortnight of incarceration. After that time there begins the artificial process of contracting out of the real world and accommodating yourself to an unreal world; and when you finally emerge you are much less able to deal with its problems than you might otherwise have been. That is one aspect of the matter.
The other aspect is the traditional attitude, which I think must colour a great deal of thinking even among those who ought to know better, that when we put somebody in prison we can confidently leave them there and not ask too many questions as to what is happening to them. We put them away and we do not want to remember them; we do not want to think about them; we do not have to think about them any more, or we do not have to think about them with any great attention. I hope your Lordships will accept at least my friendly conviction that a great many people who talk about prisons know nothing about the real facts that belong to a prison life, and that only those who have had some more or less innocent awareness of this problem are competent to make the kind of judgments which I am afraid many of the judiciary are incompetent to make. The idea that, somehow, a taste of prison, or a prolonged sentence, will produce the desired effect of reforming the criminal, or at least making him inoperative in his criminal ways, is one of the issues which lie behind the desperation and, indeed, the problems

731
that now face prison governors in the block system.
However, recrimination, as Winston Churchill said, is only valid if it is a spur to action. What is to be done? I believe that a reduction in the numbers in prison today is a priority, an absolute priority; and I have the conviction myself that many of those who would be released under various plans which have been advocated and ventilated tonight would be far more likely to lead a decent life when they come out than those who will be retained in the crowded and dangerous conditions in prisons today, who will become hardened in the very processes which will make it much more unlikely that when they do emerge they will be able to find their way back to a reasonable place in society.
I turn now to an issue upon which I would claim some knowledge. For the last 40 years I have been engaged in endeavouring to provide semi-custodial provision for girls in need of care and protection and coming out of conditions of prostitution, and so forth, who otherwise would have been sent to prison. I have some knowledge of bail hostels, and, indeed, was instrumental in setting up the first complete alcoholic rehabilitation centre in Lonodon. There is the detoxification, which is the first stage; the accommodation to a new kind of life, which is the protective stage; and thirdly the provision of some kind of continued protection by way of protected housing, and so forth. I would not be stupid enough to say that we have had extraordinary success in these ventures, but I believe they are infinitely to be preferred to incarceration, particularly of those who have committed drink-related offences. I believe there is a very much greater likelihood that they will recover; and their release would indeed reduce the population of the prisons at the moment and give us time to see what better provision could be made for the delinquents in our modern society.
I would not wish to add to what has been so cogently said by others. What I would ask is that, when provision is at least proposed for this kind of release, as the Home Secretary previously suggested, it is surely not fair that that issue should finally be decided by the judiciary, because I do not believe that, with all the competence that they have, they are necessarily any more able to form a final judgement on these matters than even people like myself. I believe we have to look at the whole question at a deeper level.
I would permit myself one final comment. A man is more likely to return to sobriety, decency and a life of usefulness if he is not deprived of access to the real world in which, alone, that exercise can be fulfilled. The final argument against the block system is that it takes people out of the real world and leaves them in an artificial area for a period sufficiently long to deprive them of many of the vicissitudes and aptitudes which otherwise they might be able to call upon when the time comes for them to be released. The imperative need, it seems to me, for those who would look to a reform of the whole prison system and the abolition of the abuses which now stain it is an attitude whereby those who are miscreants should find their answer within the framework of the same society as they have abused, for it is only there, I believe, that their true future, and the amenity and wellbeing of the community, can be assured.
732
Let me end where I began. This is a desperate situation, and those who would seek to minimise it should listen most carefully to what has been said by previous speakers tonight. It is a situation in which the one answer is to be prepared to criticise at root the prison system itself; to begin by taking as many as possible out of it, with the risks that will attend that taking out but which, nevertheless, I think will be justified. Finally, we have to do something better than that which is traditionally called the prison system of this country. It has collapsed. There is no chance of its true resuscitation. We have the time, but it is short, to do better. I pray that we shall.
7.30 p.m.
Lord Campbell of Alloway: My Lords, the noble Earl, Lord Longford, has done your Lordships' House a considerable service by introducing in his Unstarred Question this very important subject for debate; but some of your Lordships may feel, as I feel, that it was a pity that he made an unwarranted attack on Her Majesty's judges, an attack which was wholly irrelevant and utterly misconceived. Some of your Lordships—and I am one; although I have only just the privilege of being here—must say that I feel it was a pity that it was made.
The Earl of Longford: My Lords, perhaps the noble Lord will allow me to interrupt. Whether I was right or wrong, what I said was completely relevant. I am saying that it is impossible to give effect to what Parliament requires unless the judges alter their attitude. That is relevant.
Lord Campbell of Alloway: My Lords, I am obliged to the noble Earl. I shall be at pains to seek to convince your Lordships, by, I hope, a fair process of reasoning, that what the noble Earl has said about Her Majesty's judges is wholly irrelevant, that it does not serve to clarify the subject and that it does not serve to criticise at root the situation—which is surely the wish of all on all sides of the House—to examine this problem. That the overcrowded state of our prisons has reached the flashpoint of unacceptability is not in issue. What is in issue is whether the policy of Her Majesty's Government, on fair and objective review, is open to some of the criticisms which your Lordships have made.
Are they to be criticised for the situation that has arisen; are they to be criticised for the steps that they are now taking to deal with the situation? It is the policy that has to be examined fairly and objectively—as all of your Lordships would wish to do—and, in my submission, on examination, Her Majesty's Government are not subject to the type of strictures some of which have been made.
The prime cause—and let us not forget it—of overcrowding in prisons is the increase in numbers of criminals who commit serious crimes and who have to be sent to prison in order to protect society In this context, as criticism has been made of the judges, and I am no judge, I have to declare my interest as a recorder. I do on occasions send people to prison for substantial sentences—with no relish, but as part of what I conceive to be, and have been brought up to understand to be, a public duty to protect society. Two and half million serious crimes were committed this year and 44,000 of those who committed them are in prison.

733
In my submission, it is wholly wrong—and I will come in a moment to the point made by the noble Earl, Lord Longford—to attribute overcrowding, which is the evil, to neglect or to ineptitude on the part of prison staff, prison officers or prison governors. They are a wonderful body of men.
It is equally wrong to attribute this overcrowding to Her Majesty's judges, either the puisne judges, the county court judges or recorders down the line like myself or magistrates, as part of their sentencing policy, because there is no desire that I have come across either in myself, if one examines oneself, or in one's colleagues when one talks to them, to wish to pass cruel, long, harsh, useless sentences. One passes what one feels one must pass. It is, as we know, usually the supervisory control of the court of appeal which will always reduce a sentence that is unconscionable or wrong.
Lord Hutchinson of Lullington: My Lords, does the noble Lord pay no attention to what the Lord Chief Justice has said to all those whose duty it is to sentence persons in the courts to attempt to pass shorter sentences? And if he does not pay attention to that, would he tell us why not?
Lord Campbell of Alloway: My Lords, I do pay attention to it. In the circumstances—although your Lordships may see the force of the intervention, as I do not; and I do pay attention to it—I propose to continue. What I was about to seek to show was that paying attention to it and accepting it, it is wholly irrelevant—if this be so, if this be right, if judges pay attention to it, if such is their attitude and if there is the Court of Appeal as a supervisory and regulating agency—to seek to attack the judges because it is an attack without profit and it ends in no answer.
So if it is inappropriate to attribute overcrowding to the judges, or to attribute the evil of overcrowding to the prisons officers and on that we are all agreed—then I am sure we should all be agreed that it is equally inappropriate to attribute this evil of overcrowding to the want of humanity on the part of my right honourable friend the Secretary of State for Home Affairs or of any of his predecessors under previous Administrations. The problem is that this has built up under successive Governments. True, it has risen to a flashpoint under this Government but it has been building up for years and there is no sudden escape and no instantly available panacea.
The policy of Her Majesty's Government is right. It is relevant and it has been wholly pragmatic. On the one side, they have sought to curtail, to stem, the increasing tide of crime: and to do this they have increased police pay, they have heightened recruitment, they encourage patrols—and this is a positive step forward to reduce the amount of crime.
That is the first way that one should seek, as a matter of policy, to deal with this problem. The obverse is to seek to make available much more accommodation—and here I take the point made by more than one noble Lord. But by the end of this year an extra 5,000 places will have been made available. Over the next decade there will be 60 projects; and this very year £23 million has been spent on 14 new projects. This cannot all be done at once. The question is: Is the broad policy right? One could end, with respect,
734
perhaps by accepting that some special consideration should be urgently given to the position of the mentally ill; that some immediate consideration again should be urgently given to the length spent in solitary confinement. Here I declare another interest because as a prisoner—albeit of war—I spent about 9 months, off and on, in solitary confinement. I would certainly wish that anything that could be done to ease the lot of those who spend years in solitary confinement should receive attention.
I accept, speaking if I may wholly personally, that the inadequates who should not go to prison require consideration. I accept that the remand prison situation also warrants investigation. I for my part welcome the type of prison crisis meeting which has been suggested but not in any atmosphere of recrimination where motives of the judiciary are called in question.
If the case for reform is undeniable, is it not equally plain that the requisite remedial remedies should in no way weaken the rule of law and that they should in no way weaken the confidence of the public in our criminal system? In this regard, I would respectfully suggest that partial suspension may be a possibility but that amnesty or automatic remission is wholly inappropriate, and that although immediate consideration should be given to the matters that have been mentioned on the basis of a crisis meeting, there is nonetheless as matters now stand no fair or objective basis upon which Her Majesty's Government may be properly criticised in this regard.
7.44 p.m.
Lord Noel-Baker: My Lords, I join with other noble Lords in expressing my gratitude to the noble Earl who opened this debate. I rise to offer a view which I formed many years ago when I was close friends with a man whom some noble Lords will remember, Colonel Borden-Turner, who for years was governor of Wormwood Scrubs. In my many conversations with him he used to tell me that he was deeply unhappy about the imprisonment of first offenders. He said to me constantly that in his belief the vast majority of all first offenders were in prison only by accident; that they were essentially good men who desired to live by the law and be good citizens. He said—of course we all know it happens—that a long term of imprisonment can turn a good man into a confirmed criminal for life.
The suggestion which I desire to offer is that the prisons should now be relieved of a proportion of their present population—the appalling figure of 44,000—by an immediate and total amnesty to all first offenders, unless in any particular case there should be some special reason why that amnesty should not be given. I believe that that would mean an immediate relaxation of the present problem, and that if it were made a principle not to send first offenders to prison, unless there were some specially grim reason why it should be done, that would continue the relief of the prison population which the original amnesty would bring about.
I venture to agree with the noble Lord who said that what is now vastly important is that we should consider the whole prison system and in particular the efficacy of punishment as a preventive of crime. I

735
recall a book which I read many years ago. I should "boggle" the name of the author so I do not attempt it. The title was The Crime of Punishment. I believe it to be true that prevention of crime can be dealt with much more efficiently and give far greater economy at far less expenditure of present funds by other methods—in particular by improvement in our system of education. I cannot develop the theme, for it would take me much too long.
The fact that the prison population has risen from 10,000 in 1955 to 44,000 in 1981 accords with the figures which I believe to be generally accepted: that the cost of crime to the nation in 1972 was £2,000 million and that in 1981 it is £5,000 million. I believe that the Government should spend £1,000 million a year: £500 million on making a reality of their declared policy of sport for all, and £500 million on making a reality of their policy of music for all. Sport and music are the two most potent factors in education which are at present unused or under-used in our schools and universities. I believe that that would work a drastic reduction in the incidence of crime perhaps in the short period of time.
Your Lordships can judge that by what used to happen when a boys' club was opened in a region of London and the level of juvenile delinquency was immediately reduced—perhaps by more than half—when the young people were given somewhere where they could comfortably spend their evenings, where there were games, dances, music and fun. I believe that this is an aspect of policy to which the Government should give the most urgent and careful consideration.
If by spending £1,000 million on improving our education with these two most powerful instnunents of sport and music they could save £2,000 million or £3,000 million on the cost of crime and bring it back to the figure of £2,000 million in 1972, it would indeed be a splendid bargain for the nation. I urge this on the Government with all my power.
7.50 p.m.
Lord Mishcon: My Lords, it is only for a few years that I have had the privilege of being a Member of your Lordships' House, but never have I risen to address your Lordships with more of a hope in my heart that action will result from the speeches following upon the unstarred Question for which I think the House ought to be indebted to my noble friend Lord Longford.
This is no new problem that is being discussed in this House. The May Report is two years old. Debates in this House on the worsening conditions of our prisons have taken place, and I believe that your Lordships tonight are dealing with a critical problem about which discussion has taken place before, but in an atmosphere of crisis with which the Secretary of State, if I may say so respectfully, must deal as a matter of emergency. Without any doubt at all, that crisis has been emphasised by a very courageous governor of Wormwood Scrubs Prison, by writing a letter to The Times, which my noble friend has quoted to the House and which I need not repeat.
The chairman of the Association of Prison Visitors, Mr. McFarlane, has emphasised that crisis only yesterday, as reported again in The Times, by saying that unless something is done he can see—and he is a very
736
responsible person—that there could well be outbreaks in our prisons, the like of which we would not wish to see. He, too, expressed a view that there was no way of dealing with the crisis, in his opinion and with his specialist experience, by merely having the remedy of partially-suspended sentences.
It is, as I said, in this situation of crisis that one has to look to the Government for action. I make no criticism whatsoever of the judiciary in the speech I have to make to your Lordships. I think, if I may say so with respect, that is irrelevant. It is for the Government to take action at the crisis level of 45,000 plus prisoners, when all of us know that the maximum capacity is somewhere in the region of 35,000. So in the closing minutes of this debate let us try to see whether we can put to the Home Secretary from this House not only an urgent plea for action but some constructive proposals—and many have been mentioned in this debate, not least by my noble friend Lord Hutchinson and by the dissertation of the whole question of prison life which was given by my noble friend Lord Soper, whose work in this field has met with the admiration of so many, and not least of his colleagues in this House.
What are the things that can be done? The first think that has got to be done, in my humble submission, is not to think ahead for years and years of something that may in fact reduce the prison population. I am all for it, and the process has to be continued; but what can be done at this moment to reduce the prison population to a tolerable number of 40,000? It means that 5,000 prisoners have to be released.
Many of us have an admiration for the Home Secretary. We regard him as a man of humanity, and I believe that his humanity is still there despite the rather extraordinary atmosphere he had to contend with on 13th October at the Conservative Party Conference. I have enough faith in his courage, apart from his humanity, to hope that he has overcome the shock he had on that occasion from his political colleagues at that conference. It is perfectly true, and has been freely commented on, that he did have the idea of the two-thirds remission of sentences which were not long sentences: one-third to be under supervision and one-third to be, as it were, absolute.
It may very well be that those who have criticised that plan have good grounds for doing so on the grounds that the courts might be tempted, knowing of the remission, to see to it that the sentence which was going to be remitted was one they thought appropriate, bearing in mind that they wanted a minimum practical period of the sentence to be served. It may be that criticism is right. It may be that the probation officers, whose views upon this I believe are accurately reported, may have taken the view—and it is understandable—that with their present numbers and their present burdens they could not supervise this one-third period when they were supposed to be doing it.
That may well be so, but if in fact it be true, those of us who thought it was a good idea find ourselves up against a series of practical difficulties in this crisis. Ought we not to be looking very seriously indeed at the proposal that, certainly up to a 12-month sentence—and that cannot be for a very serious crime, or for those who have come back to prison time and time again—save where that sentence be one for violence, because that is something we are all very concerned about, that

737
one-half of the sentence should be remitted? That would in fact, so I am told reliably, lead to an immediate evacuation of our prisons by some 4,000 people, and we are well on the way to the 5,000 mark. Is it not right, therefore, to consider that as a very definite priority?
Reference has been made in this debate, by my noble friend Lord Longford and others, to the suggestion made in The Times of an amnesty. Again there are arguments for and against that. If we have an amnesty for those who are serving sentences of less than a certain period, we do not have to be very imaginative to know that some unfairness results, because those who have just got sentences of a little more have to remain in the prison in those conditions for the whole of their sentences, and they have to see go free somebody who may in fact have been convicted of a more serious crime, but who was fortunate enough to appear before a more merciful court. It follows logically that those who have just come in to serve their sentences fare rather more happily than those who are right at the end of their 12-month sentence, if that sentence in fact be the one that is deemed appropriate for an amnesty. But the situation is so critical that, whatever be the criticisms, these proposals have got to be considered as matter of urgency.
I come on to the third proposal that has come out of this debate and that has been made before. Reference was made to it in the May Report. I refer to those who suffer from some mental disability who are not certifiable. It is an absolute, positive scandal that they should be in prison. It is not just a scandal in regard to them. It is a scandal for the National Health Service that ought to have this responsibility. Furthermore, it is not only a question of overcrowding. What you are doing by having those people there is putting a burden upon prison officers, who do not know how to cope with them, and who are therefore having their time and energies taken up, which makes the whole problem for all the other prisoners, and the duties that those prison officers have in regard to them, all the more difficult and makes the problem of overcrowding all the more serious.
Reference has been made by the noble Lord, Lord Avebury, and others to the petty offenders who ought not to be in prison at all and to those who ought to have less severe sentences. In the latter connection, I must humbly pay my tribute to the Lord Chief Justice, who has certainly, both in his guidelines and in other ways, brought all the great influence of his high office to bear on seeing that the question of shorter sentences is well in the minds of the judiciary and indeed of the magistrates.
I do not think that long speeches at the end of a debate register quite as much as speeches of more moderate length. Therefore, I shall not do any more at this stage than conclude my remarks by saying, as I began: please do not let us be put off in this debate —and I beg the Minister not to be—by recitations of the failures of previous Governments to deal with this matter. I take the burden most humbly by saying: all right, I concede that former Governments have neglected this problem. It is not an easy matter in a Cabinet room—I have never been in one—serving as a Cabinet Minister. But I rather imagine that it is not the easiest job in the world for a Home Secretary to
738
plead his cause, when there are so many priorities, for expenditure of large sums on prisons.
I hope that the present Home Secretary has enough courage—I know he has that—and enough powers of persuasion, too, to see that this problem is not always made the Cinderella in regard to social services. In my view, it has a very high priority. I am trying in this summing-up speech to put upon the Government the very definite responsibility, at this moment, to listen to the proposals that are made, and that have been made in the past, and to see that something is done urgently to deal with the problem that has been highlighted by the Question that we are considering tonight.
I conclude with a quotation from the Committee's report, delivered two years ago and unimplemented as yet. This is a sentence that I think each individual member of the May Committee and its illustrious chairman would want to have repeated at the end of this debate. It reads as follows:
"If we turn our backs on our prisons, we turn our backs on our society and on our values".
8.4 p.m.
The Parliamentary Under-Secretary of State, Home Office (Lord Belstead): My Lords, the Question of the noble Earl, Lord Longford, concerns the grave situation in our prisons and that the situation is grave is not in dispute. Indeed, I agree with the noble Lord, Lord Mishcon, who, at the beginning of his speech, said, in essence, that the problems are both pressing and serious. Indeed, my right honourable friend the Home Secretary has taken the lead in the past two-and a-half years that he has been in office in drawing public attention to the problems faced by the prison system. In speech after speech, both in another place and elsewhere, my right honourable friend has referred in the plainest terms to the appalling difficulties created by overcrowding, and by a legacy of neglect which produced no new closed prison or borstal built in England or Wales in the 40 years from 1918 to 1958.
However, there has, I think, in the past few years been a considerable increase in public awareness of the problems of the prison system, and I believe your Lordships would accept that the Government's openness of approach—perhaps well epitomised in the television programme "Strangeways", which is being repeated at the present time—has contributed much to a better understanding of a system and a service about which most people in the population know very little.
The problem is essentially one of an imbalance between the resources available to the prison service and the demands made upon it. The Government's objective is to rectify that imbalance by increasing the available resources, by making better use of resources or by reducing the demands made upon them. But, in practice, we have to try to do all three. The noble Lord, Lord Mishcon, expressed the hope that my right honourable friend would argue effectively for resources for the prison service. I think my noble friend Lord Campbell of Alloway gave the answer to the noble Lord, when my noble friend referred to the Government's prison building programme. Six new prisons to be started between this year and 1984 with further starts being planned, and major reconstruction

739
at over 60 establishments during the 1980s, constitutes a substantial programme and I hope that it gives the prison service some real encouragement for the future.
Incidentally, it is a programme that is going to make a major contribution to the improvement of conditions at Wormwood Scrubs, where a great deal of new accommodation is now to be provided, as my honourable friend the Minister of State, Mr. Mayhew, stated in another place in the adjournment debate on 20th November. But, of course, we have also to try to make better use of the resources now available.
We propose to go some way to reducing the heavy burden of court escort duties by providing in the Criminal Justice Bill which my right honourable friend intends to introduce shortly for the courts to be empowered to remand accused persons in their absence. We do not intend to disrupt the present eight-day cycle of remand hearings. Provided, therefore, that prisoners give their consent and are legally represented, our intention is that the court will be able to remand offenders in their absence, but only for up to a maximum of three consecutive remands. The safeguards that I have mentioned are very important for this proposal, which ought to bring some relief to our overpressed prison service.
The noble Earl, Lord Longford, is right, just as the Home Affairs Committee of another place was right, in pointing to the overriding need to reduce the sentenced prison population, if we are going to rectify the imbalance to which I have referred. That is the Government's position. It has been reiterated many times by my right honourable friend the Home Secretary. It is central to our objective of bringing relief to the pressure under which the prison system operates—an objective which is clearly shared, whatever our different views about how to do it, by all noble Lords who have spoken in this debate this evening.
Despite that general remark, I realise that some of your Lordships spoke of specific offenders who are in custody. The noble Lord, Lord Hutchinson, spoke of remand prisoners and asked; what is being done? In the Crown Court, my noble and learned friend the Lord Chancellor has, as I am sure the noble Lord will know, opened new courts and appointed extra judges and this has already achieved a significant reduction in the backlog of cases.
The noble Lord, Lord Avebury, and others of your Lordships, including the noble Lord, Lord Mishcon, in the final speech, spoke about mentally disordered offenders and drunken offenders. So far as what we call the regional secure units for mentally disordered offenders are concerned, at last a start has been made with 30 places provided, 170 places to be available by the end of next year and 500 places by 1985. The Government will continue to pursue policies aimed at finding alternative ways of dealing with such offenders, but the great majority of the prison population are sentenced prisoners who are there because their actions are serious enough for the courts to feel that imprisonment is the only response for the offence and for the offender.
In this context I think that a significant statistic to bear in mind is that the great majority of sentenced prisoners have three or more previous convictions. Only 15 per cent. are known to have less than three previous
740
convictions. Some of these I have no doubt are petty and inadequate offenders whose actions are a nuisance and who deserves to be dealt with firmly—but also in the hope that they can be steered away from custody. However, there are many others who do not come into that category. As my noble friend Lord Campbell of Alloway said, there are offenders whose offences simply cannot be overlooked so far as custody is concerned.
Of course the Government attach importance to fostering alternatives to imprisonment. As proof of that, the figures for the making of probation orders have now begun to increase which, in the total context of the increase in crime, I find encouraging. And the numbers of community service orders have increased dramatically. En many cases, however, there has to be imprisonment. Nevertheless, consistent with the gravity of the offence and the protection of the general public, sentences ought to be as short as possible. I would not have the temerity to say that off my own bat but it was the basis of a number of recent judgments of the Court of Appeal, of which the best known are the cases of Upton and Bibi of about a year ago.
The criminal statistics of last year show that there was a discernible reduction in the average length of sentence in both the magistrates' courts and the Crown courts following those judgements in the Court of Appeal. I understand that the reduction implied a decline in the prison population of as much as 2,000 to 3,000 prisoners, but in practice the increase in the number of offenders being dealt with by the courts has eaten into what would have been savings. But this development in sentencing policy is of crucial importance if a sustained reduction is to be achieved in our prison population and if we are to give those responsible for running our prisons the opportunity to operate regimes consistent with standards of decency and dignity and to emulate the very good work which is being done by staff, where positive policies for prisoners are made possible wherever there is a reasonable level of numbers of prisoners. So far as that is concerned, last summer the prison population did indeed rise to just over 45,500 for a certified normal accommodation of under 40,000. Since then, however, the population has fallen back to rather less than the noble Lord, Lord Mishcon, mentioned—to just under 44,000—and has stayed there now for many weeks. Nevertheless, this represents a level of overcrowding, particularly in local prisons like Wormwood Scrubs, which cannot he sustained.
In developing the policy to be set out in the Criminal Justice Bill, shortly to be introduced, my right honourable friend has had very clearly in mind the need to reinforce the trend towards shorter sentences. At the same time, a Bill of that kind must incorporate powers which enable the courts to deal adequately with offenders. The noble Earl, Lord Longford, referred to the role of Parliament and to the role of the judiciary in sentencing matters in terms which drew an intervention with which I must make it clear I wholly concur. Of course it is for judges and magistrates to decide on appropriate sentences in individual cases. Parliament's responsibility, surely, is to create the right statutory framework within which the courts feel that they can give the right sentences. This is the basis upon which

741
my right honourable friend the Home Secretary has been considering how to move ahead.
Last May, the Home Office Review of Parole put forward proposals by which the benefits of parole might be extended to prisoners serving sentences below the parole threshold, mentioned by all noble Lords who have spoken this evening—what we call the supervised release scheme. The proposal was put forward as one way of reinforcing the call of the Court of Appeal for shorter sentences. But while there was much support for the scheme—indeed, that support has been reiterated this evening—many doubts were voiced about it. I was interested in the speculation of noble Lords about reactions to supervised release. If they will forgive me saying so, it was a remarkable allegation by the noble Lord, Lord Hutchinson of Lullington, that probably the circuit judges and magistrates have persuaded the Government to abandon supervised release.
Let me tell the House the truth. It is true that we had estimated that the supervised release scheme might have yielded a reduction of up to 7,000 in the prison population, but that was on the most favourable assumptions and related to a scheme under which offenders were automatically released after one-third of their sentence to serve the middle one-third under supervision in the community. But it was clear from the reactions that we received that the early release proposal would have created, in the opinion of many, a gap between the length of sentence given and the actual sentence served which would be too great and which could be reflected in longer sentences. If that happened, that in itself would have meant that the estimated saving in the prison population simply would not have been achieved. What is more, the progress made towards encouraging the courts to exercise their sentencing discretion in favour of shorter sentences would have been lost.
Let me go on a different tack for a moment. Let us suppose that the early release scheme were to be applied with judicial discretion. Again that would have made any estimate of the reductions the scheme would have achieved very much more uncertain. We also had to take into account that real doubts had been expressed by the probation service itself, among others, about the likely effectiveness of short periods of supervision under a scheme of that kind. Incidentally, I do not for one moment deny what the noble Lord, Lord Mishcon, said: that the probation service also had in mind that they would need the resources to be provided. But nothing has been said so far as that is concerned to prevent the service from feeling that the resources would be there when such a scheme would be brought into effect.
Lord Hutchinson of Lullington: My Lords, would the Minister tell the House whether the hostile reaction to the proposal came from the judiciary?
Lord Belstead: My Lords, we undertook consultations, which I think was a perfectly natural thing to do, with a whole variety of people: the judiciary, the magistrates, the probation service—a variety of other people who were all free to come to talk to us and with whom we consulted. The situation is exactly as I have set it out there. The reactions and the reservations were of the kind that I have just explained. It was
742
because of those reservations and because of the damaging effects, as we saw them, both upon the savings which would otherwise have been made by an early release scheme and possibly upon what is happening to the sentencing trend of the courts at the present time that we looked elsewhere. We have not reneged, therefore, on a cast-iron opportunity to reduce the prison population by 7,000. I assure the noble Lord, Lord Hutchinson of Lullington, that we took a balanced appraisal which suggested that the likely benefits of the scheme were at the best uncertain and at the worst could work against the trend of sentencing practice as it is becoming apparent. Therefore, it was, as I say, to Section 47 of the Criminal Law Act 1977 that we also looked, the section which gives to the courts the power to suspend part of a prison sentence.
My noble friend Lady Macleod of Borve put her finger on a most important point when she said that Section 47 has one immediate advantage over the early release scheme, in that Section 47 is already on the statute book and can, therefore, be brought into effect much sooner than a scheme requiring legislation. This is a point which think should weigh with your Lordships because many of you this evening have said in terms that time is not on our side in these matters.
I should also like to remind the House that, in their report, the Advisory Council on the Penal System, about which a good deal has been said this evening, pointed out that the decision to incorporate a partially suspended sentence provision—incidentally, on the form of which they were consulted—in the Criminal Law Bill in effect pre-empted a recommendation that they would otherwise have made. The Advisory Council on the Penal System concluded:
"We view the partially suspended sentence as a legitimate means of exploiting one of the few reliable pieces of criminal knowledge, that many offenders sent to prison for the first time do not subsequently re-offend".
It is with just that objective that the Government now intend to implement Section 47, subject of course to the agreement of Parliament.
Lord Mishcon: My Lords, I wonder whether the noble Lord the Minister would allow me to intervene and ask him just two questions. First, while one always welcomes U-turns from the Government and sometimes does not receive them, is it not a fact that the Home Secretary himself took the view that the partial suspension procedure, when recommended elsewhere, would not be efficient? Is that not the case?
The second question I wish to ask the noble Lord is this: during what period of time is this scheme likely to reduce the prison population? Also, can he say by how many during that period of time it is estimated that the number of prisoners would be reduced?
Lord Belstead: With regard to the first question which the noble Lord, Lord Mishcon, asked me (a question which I think was asked of my noble friend Lady Macleod of Borve during her speech, and which my noble friend answered) it is indeed a fact that we have said quite openly during debates—and also I think it was said quite openly in the Review of Parole on behalf of the Home Office—that we were suspicious of Section 47, and indeed in his speech the noble Lord, Lord Hutchinson of Lullington, gave the reason. It

743
was because—to use the jargon—it might mean that the courts would feel that "a taste of custody" would be appropriate.
I have been at pains this evening to try to say something, and indeed to back up what I have been saying with some evidence, about the trends of sentencing policy shown by the courts as a result of advice given by the Lord Chief Justice in the Court of Appeal. We believe now that there is a good chance that the purposes of Section 47 will be achieved—the purposes of Section 47 which it was hoped would be achieved when it was written into the 1977 legislation.
So far as the savings of places are concerned, I hope I have also shown in my speech what a conjecture this is. I repeat quite openly that we believed in the Home Office that there could be a saving of some 7,000 places in the prison service by an early release scheme but it soon became apparent that this was subject to all sorts of considerations which would almost certainly reduce those numbers. I should like to write to the noble Lord about this, but I understand that we certainly could be talking about something up to 4,000 places if Section 47 were to work out in the way that might be hoped. But nobody can say for sure what in fact is going to happen. If I have got that wrong, I will write to the noble Lord.
Lord Elwyn-Jones: My Lords, can the noble Lord give an estimate of the period of time which that would take? We are facing an emergency situation. What answer are we going to give to the governor of Wormwood Scrubs tonight—"Wait, wait, wait. We will try some other remedies"?
Lord Belstead: My Lords, with respect to the noble and learned Lord, that is an extraordinary intervention. If an early release scheme had been put into legislation, that legislation would not have been through both Houses of Parliament for probably another eight months and then it would have been necessary to put such a scheme into effect, which would have taken a further considerable time. Section 47 is on the statute book. I give no undertakings this evening, but there is no reason why Section 47 should not be brought into operation, in some form, in the reasonably near future, although of course, if we are to alter the effect of Section 47 in the way which my noble friend Lady Macleod recommended in her speech, that would need some legislation which would add to the scope of the section. With respect to the noble and learned Lord I do not think that is a very good point. One of the strong points for bringing in the 1977 legislation on this particular ground is the fact that here is something which can be tried very soon, whereas the scheme which was floated in the Review of Parole was something which, whatever happened, could not have come into effect for a very considerable time.
Lord Avebury: My Lords, I have been trying to intervene, to ask the noble Lord whether he was going to deal with the other suggestion which I made, which is that the Government should consider adopting 50 per cent. remission, as we have in Northern Ireland. No doubt the noble Lord will be able to give the House an exact figure of the number of people who would be released from prison by such a scheme, because
744
it is readily calculable, whereas in the case of the provision which the Government are now contemplating, the matter is one of conjecture.
Lord Belstead: My Lords, I think really I have covered that point. Of course we have considered such a matter carefully. Anyone who did not consider as many of the options as possible would be very unwise but that particular proposal falls into the difficulty of the perceived gap (particularly by those who are responsible for sentencing) between the sentence which is actually given and the sentence which is served, as the noble Lord knows.
Lord Avebury: I did not know that.
Lord Belstead: My Lords, I thought the noble Lord did know it, but as the noble Lord apparently does not know there was not a parole system in Northern Ireland—
Lord Avebury: I did know that—of course I did.
Lord Belstead: My Lords, it was not considered either feasible or easy to introduce a parole system into Northern Ireland and resort was therefore made to the 50 per cent. remission.
For the reasons which I have given to your Lordships we have turned to Section 47. We believe that it will give the courts the opportunity to reduce effective sentence lengths while at the same time marking the seriousness of the offence by the sentence given. That would secure a method of supplementing the trend towards shorter sentences within the bounds of the kind of judicial discretion which our consultations carried out in the context of the Review of Parole proposals suggested was necessary and which I think the courts will themselves welcome.
I have no hesitation in admitting that the effectiveness of Section 47 depends on the way it is used. For the reasons which I gave just now after one of the interventions, we believe that in the present climate of opinion it will be used as intended in cases where otherwise full imprisonment would be unavoidable and we believe it will enhance the move towards shorter sentences.
This debate on a very difficult matter and in a very grave situation is, nonetheless, welcome because I think it has given a chance not only for the Government to hear what has been said by your Lordships but also for the Government to explain something of our strategy for relieving pressure on the prison system. But, of course, it is a strategy which is not ultimately subject to rigid control. As your Lordships will know better than I do, the criminal justice system does not work like that. Of course, there are uncertainties inherent in any course of action which is not rigidly controlled centrally. The effect of a supervised release scheme would for many reasons be uncertain, and the Government believe that partially suspended sentences would be the better approach.
But there is one certainty; namely, that we can only hope to contain the crisis in our prison system if the demands made upon the service are brought into balance with the resources which we have. This debate has shown the many and complex matters with which my right honourable friend the Home

745
Secretary must contend if this balance is going to be achieved. Unless it is achieved, it will leave the Government with no option other than to use what would amount to executive powers to relieve the situation. That is the measure of the seriousness of the problem with which this debate has been concerned and against which the Government's policy is being formed.