Lords Sitting of 14 October 1981

Preamble
The House met at half-past two of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of Exeter.

Introduction of the Lord Kadoorie
Sir Lawrence Kadoorie, Knight, CBE, having been created Baron Kadoorie, of Kowloon in Hong Kong and of the City of Westminster, for life—Was, in his robes, introduced between the Lord Rhodes and the Lord Soames.

Spectacles: Control of Sale
Lord Rugby: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will make a statement on the prosecution resulting in Mr. Lewis being fined £400 plus costs for selling magnifying lenses in frames (16th June) and to state whether the General Optical Council has powers to control the importation and sale of all refracting lenses, or, if only of specific lenses, whether then that a list and description of such lenses should not be available at all times.
The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Elton): My Lords, on 16th June 1981, a company known as E. & L. Cligman Ltd., and trading under the name of "Mister Lewis", was charged with two offences of selling optical appliances contrary to Section 21 of the Opticians Act. The company pleaded guilty and was fined £200 on each offence and ordered to pay £50 costs. The prosecution was brought by the General Optical Council after it had received a large number of complaints that the company, without the supervision of a registered medical practitioner or a registered optician, had been offering for sale plastic frames glazed with magnifying lenses.
The General Optical Council does not have power to control the importation of refracting lenses; it does however have the same right as anyone else to prosecute where an optical appliance is sold by a person who is not a registered medical practitioner or a registered optician.
Lord Rugby: My Lords, I thank the noble Lord for referring specifically to Section 21 of the Opticians Act. Many people today feel that that confers not only monopoly rights but also a form of legal infallibility in all such cases. I should like him to say: Must anyone who tried to bring similar simple lenses into this country inevitably face a case which they cannot hope to win?
Lord Elton: My Lords, the case in question does not refer to importation but to sale. I cannot of course say what any court would judge in a particular case in the future, only that the law is as expressed in the section of the Act to which the noble Lord has referred.
Lord Mackie of Benshie: My Lords, can the noble Lord the Minister say whether any of the large number of complaints came from the customers who bought the lenses?
Lord Elton: My Lords, I do not know as to the individual cases; I think that the bulk of the complaints came from the trade.
Lord Orr-Ewing: My Lords, can my noble friend say whether, as the General Optical Council have now persuaded their members that they may display prices, these are now being generally displayed? Is it not a fact that a number of people who did have prices displayed in their windows have now withdrawn those prices so that no one knows how much he is going to have to pay for their over-priced spectacles? Further, is it not a fact that the Minister for Consumer Affairs has stated—and this is the only cure—this:
"I remain firmly convinced that the best way to foster vigorous competition in the supply of private spectacles would be to relax the monopoly in supply imposed by the Opticians Act."
Is not this one of the Acts which should come forward in the next Session, to the great benefit of those who buy a million pairs of spectacles a year and pay two or three times what they ought to pay for their spectacles?
Lord Elton: My Lords, as my noble friend knows, the ban on the display of prices in opticians' windows was lifted by the General Optical Council on 1st May this year. The Office of Fair Trading has now sent out a questionnaire asking 662 opticians whether and in what form they are displaying prices. We shall know more about the results of this change when we have the answers to the questionnaires.
On a subjective level, I visited three opticians' shops this morning and found the prices clearly displayed in all of them. As to the last part of the noble Lord's question, before we decide to change the Act we must establish how exactly it is working. That means a review. The terms of reference for this review are at present under discussion between the two departments concerned and the Office of Fair Trading.
Lord Paget of Northampton: My Lords, I must first declare an interest: I use the blasted things. I am a victim of this racket, on which I entirely agree with the noble Lord, Lord Orr-Ewing. Is the noble Lord aware that when I was a young man there used to be a large counter at Woolworths where one just went along and selected a pair of spectacles that fitted? This was admirable for the vast majority of those who required glasses merely because old age had somewhat weakened the sight, and it does no harm at all to choose something which makes reading a little easier. A small minority require and can get proper optical

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assistance; but bad glasses have very little effect at all in making sight either worse or better.
Is the noble Lord further aware that if I were to break my glasses and required another pair urgently I would go to the optician and would be told that they could do a rush job if I paid an extravagant price of some £20 or £30 for a set of frames, but that if I had National Health ones it would take about three weeks? That is a racket, and it ought to be stopped.
Lord Elton: My Lords, I remember with delight as a small boy the fascination which that very counter at Woolworths to which the noble Lord referred afforded me until I was upbraided for playing with it. As to present practice, the noble Lord is probably aware—because it has been said in this House before—that qualified examination of the eyes of somebody looking for spectacles can reveal not only diseases of the eye but diseases of the rest of the body. This is an occasion that should not be missed, in the view of this Government. As to the question of the urgent requirement for glasses which the noble Lord anticipates, I hope it will not arise, but I shall certainly inquire as to the delays he referred to. In the meantime, I suggest that he carries a spare pair.
Lord Winstanley: My Lords, without wishing to encourage self-medication, in general, may I ask the noble Lord whether he does not agree that to insist on a detailed ophthalmic examination before allowing elderly people to buy magnifying glasses is about as sensible as insisting on a medical examination before allowing them to buy walking-sticks?
Lord Elton: My Lords, I really should not like to verify that analogy.
Lord Pargiter: My Lords, would the noble Lord say whether or not it would be desirable to separate the prescription of glasses from the supply, so that there is some freedom of choice?
Lord Elton: My Lords, in effect prescription and supply do not necessarily rest in the same hands at present.
Lord Ferrier: My Lords, is the noble Lord aware that the vast majority of Her Majesty's lieges are fully satisfied with the regulations now established in regard to this very intricate trade and are quite happy to leave them in the hands of Government if they are going to have an inquiry?
Several noble Lords: Oh!
Lord Elton: My Lords, I am obliged for the noble Lord's support. None the less, this is a position which I should wish to look at.
Lord Spens: My Lords, is the noble Lord aware that his suggestion that one should carry a spare pair of glasses is a very expensive suggestion? Is he further aware that I am now wearing a new pair of National Health glasses which cost me £18, and when I asked for a spare pair I was told that would cost me between £30 and £40?
Lord Elton: My Lords, I take note of what the noble Lord says. The cost of National Health spectacles for the first pair is very little and amounts to only £7·85 for the cheapest, and even that price can be waived where there are special needs.
Baroness Gaitskell: My Lords, the National Health Service is the service we should all be using for spectacles. Anything outside that means that you pay £74 upwards for a new pair of spectacles—and not very strong ones either.
Lord Elton: My Lords, the prudent purchaser will doubtless bear the noble Baroness's advice in mind.
The Chancellor of the Duchy of Lancaster (Baroness Young): My Lords, I think we have had a very good run on this and that it would be the wish of the House that we should move on to the next Question.

ECGD Reserves
2.57 p.m.
Lord Bruce of Donington: 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 state the amount of reserves, as at 31st July 1981, held by the Export Credits Guarantee Department and built up to provide for future losses.
The Parliamentary Under-Secretary of State, Foreign and Commonwealth (Lord Trefgarne): My Lords, ECGD's accounts are published on a financial-year basis in November or December. The most up-to-date figures thus relate to the financial year 1979–80 when ECGD's total reserves stood at £445·2 million. In addition, the department's accumulated provisions to cover buyer losses amounted to £215 million. It is anticipated that figures for the end of the financial year 1980–81 will show a decrease in ECGD's reserve levels and an increase in provisions reflecting the continuing heavy claims being met by the department.
Lord Bruce of Donington: My Lords, while thanking the noble Lord for his reply, may I ask him whether he will say why, in view of the fact that since the year 1970–71 the ECGD has accumulated reserve funds at an average rate of about £50 million a year apart from the year 1979–80—it accumulated a small loss during that year of about £21-£29 million—it was necessary considerably to increase a whole range of ECGD premiums during the current year, to the considerable disadvantage of many exporters in the United Kingdom? Will he undertake to have a review of the situation, since it must surely be clear that the reserves have been established after making due accountancy provisions for claims? On the basis of one year balancing out another, would it not be far better to refrain from increasing the ECGD rates and run a little upon the reserves that have accumulated over so many years to meet such a contingency as the noble Lord referred to?
Lord Trefgarne: My Lords, the fact is that over the three years, as I said in the original Answer, the ECGD has had to meet very considerable claims and indeed is continuing to do so. It has been the policy of consecutive Administrations of both political complexions that the ECGD should operate on a basis of no charge on the public funds for its day-to-day credit reinsurance operations. That is why it has been necessary to increase the level of charges.
Lord Shinwell: My Lords, if the Government are so optimistic about the future and feel that they are capable of solving all our problems, including our financial problems, then why not use some of the reserves available in order to boost up our exports? Either the Government are entitled to be optimistic or they are operating under false pretences.
Lord Trefgarne: My Lords, the claims upon the ECGD result from the shortcomings of other Governments—not ours.
Lord Bruce of Donington: My Lords, will the noble Lord undertake to reflect upon the last reply that he gave to my noble friend? Is he not aware that, since the ECGD has been operating, the first loss or depletion of the reserves took place in the year 1979–80? Will he bear that very carefully in mind? In view of the interest of the entire exporting world in this very important question, will the noble Lord give the House an indication as to whether he would welcome a full-scale debate on the whole operation of the ECGD at the moment when the 1981 accounts become available?
Lord Trefgarne: My Lords, the question of a debate on this or any other matter is, of course, something to be decided by the usual channels and not for me. But, of course, I stand ready to answer whatever debate your Lordships wish to initiate and which is down for me to reply to.
Lord Davies of Leek: My Lords, may I ask the noble Lord whether the availability of accurate statistics was interfered with by the Civil Service disputes and whether, consequently, his figures are just guesswork or the result of study? Secondly, may I ask the noble Lord what encouragement is given to the small business people whom the Economist rightly described as "the good Samaritans of capitalism", and who are increasing their output per person by about 100 per cent., to understand the intricacies of the export credit guarantee system? Finally, is the noble Lord aware that we are aware that the fall-back is due to other countries reneging rather than to the exporters themselves?
Lord Trefgarne: My Lords, I think it is fair to say that the recent difficulties in which the ECGD has found itself result largely from the effects of the world recession. But it is also worth saying that one of the specific difficulties that it met was the special case of Iran, which imposed burdens of something like £200 million upon the ECGD, and which is, of course, a very substantial part of the deficit to which I have referred.
Lord Barnby: My Lords, would the noble Lord the Minister agree that it is extremely dangerous talk to suggest that there should be any reduction in the reserves? With the indulgence of the House, may I recall that when I was in another place I was a member of the committee which recommended the setting up of this whole export credit scheme, and it certainly would not have been the view of those who recommended this scheme that any such wrong talk should develop and that the reserves should be reduced?
Lord Trefgarne: My Lords, it is certainly appropriate that the reserves ought to be at an adequate level. In that context, it is worth saying that the present risks to which the ECGD is exposed are something of the order of £28,000 million.
Lord Drumalbyn: My Lords, can my noble friend say whether other countries have suffered the same kind of export credit losses, or are, at any rate, suffering them in parallel with ourselves?
Lord Trefgarne: My Lords, the arrangements in other countries are not always exactly in parallel with ours. But I understand that the export credit guarantee arrangements of some of our European colleagues are at least as difficult as our own.

Zimbabwe: Restrictions on Asset Transfers
3.5 p.m.
Lord Gridley: 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 approach they propose to the Government of Zimbabwe in order to alleviate the hardship caused by that Government's restriction on Britons desiring to return to the United Kingdom transferring their household goods and capital.
Lord Trefgarne: My Lords, British subjects resident in Zimbabwe, many of whom are also citizens of Zimbabwe, are subject to the normal exchange control regulations of that country. The current foreign exchange shortage has compelled the Zimbabwe Government to continue, and in some cases to strengthen, the exchange controls which they inherited on independence. However, the Zimbabwe authorities have assured Her Majesty's Government that they intend to relax the controls as soon as financial circumstances permit, and that they will consider sympathetically any cases of individual hardship.
Lord Gridley: My Lords, I thank my noble friend the Parliamentary Under-Secretary of State at the Foreign and Commonwealth Office for that reply, which I am afraid is not entirely satisfactory. May I ask my noble friend whether he is aware of the full effect of these restrictions? For example, is he aware that the capital which is represented by the commuted portion of a man's pension, and which he may have earned over many years, can no longer be transferred

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to the United Kingdom? Is he further aware that an individual wishing to transfer to this or any other country is now, under these restrictions, totally unable to export his household effects? With regard to the transport allowance to remove these effects to a country of choice, the expenses allowed are only £700 equivalent in sterling to each family and not to an individual. In respect of a maturing insurance policy, the capital which should accrue to the individual concerned can no longer be exported anywhere and is frozen in Zimbabwe. Finally, may I say to my noble friend that I do not criticise the Lancaster House agreement in this connection, and I am in full admiration of that agreement and of the work performed by my noble friend the Foreign Secretary in this matter.
Lord Trefgarne: My Lords, the export of capital from Zimbabwe is, indeed, subject to certain restraints, but of course that is not unique to Zimbabwe. Many countries have exchange control regulations; indeed, we ourselves did until comparatively recently. As for the export of goods, to which my noble friend referred, it is the case that certain regulations have recently been introduced relating to the export of capital goods from Zimbabwe, and when I say "capital goods" I am referring to household capital goods, such as refrigerators, deep freezers and the like. The Zimbabwe authorities have stated that emigrants had been exporting newly purchased items of this kind for resale outside Zimbabwe, in order to evade exchange control regulations, and I imagine that it is for those reasons that these controls were introduced. As for insurance polices, to which my noble friend also referred, I imagine that the proceeds from an insurance policy will be subject to the same regulations as capital sums generally.
Lord Kilbracken: My Lords, are not all these, or almost all, matters, purely for the Government of Zimbabwe and not for Her Majesty's Government?
Lord Trefgarne: My Lords, that is indeed correct, but it is the case that my noble friend has had a continuing interest in this matter and it was, of course, one of the things discussed at the Lancaster House conference.
Lord Oram: My Lords, can the Minister say whether an estimate of the cost of transferring household goods and capital to this country was taken into account when fixing the amount of aid to Zimbabwe? Is that not an important factor in deciding the rights and wrongs of this matter? Despite the implication of the last question, surely Her Majesty's Government have residual responsibilities in these matters.
Lord Trefgarne: My Lords, we are very careful not to link those two things. The purpose of our aid contributions to Zimbabwe, and indeed to any other country, is to help them build up and improve their commercial and economic infrastructure; and no good purpose will be served, I suggest, by linking those two matters.
The Earl of Lauderdale: My Lords, can my noble friend tell the House whether the matters referred to
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relate to assurances given to British civil servants, who worked in what was then Rhodesia for many years, and who may feel that they have been badly done by?
Lord Trefgarne: My Lords, there, I think, is a misconception. The Civil Service in Rhodesia, as it then was, was not recruited in the United Kingdom but, generally speaking, was recruited locally.

"World in Action": Angola Broadcast
3.10 p.m.
Lord Chalfont: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they have received representations from the Government of the Republic of South Africa regarding the television programme on Angola broadcast by Granada Television in the "World in Action" series on Monday, 3rd August last.
Lord Trefgarne: Yes, my Lords. The South African Ambassador called upon the then Lord Privy Seal on 7th August to complain about the programme.
Lord Chalfont: My Lords, I thank the Minister for that not very informative reply. May I ask him what was the reaction of the Lord Privy Seal to the representations made by the South African Ambassador? May I also ask him whether he is aware that the film referred to accused the South African forces of atrocities, including the bayoneting of babies and pregnant women, allegations which the film was totally unable to substantiate?
Lord Trefgarne: My Lords, I have not seen the film, but I have no doubt that what the noble Lord has said is right as to what the film contained. My right honourable friend the then Lord Privy Seal told the Ambassador that Her Majesty's Government have no control over the content of television programmes.
Lord Avebury: My Lords, may I ask the noble Lord whether the then Lord Privy Seal also explained to the South African Ambassador that in Britain, unlike South Africa, journalists cannot be jailed or exiled for what they say?
Lord Trefgarne: My Lords, I have no doubt that the Ambassador knows that already.
Lord Whaddon: My Lords, may I ask whether or not it was pointed out to the Ambassador that if South African troops had not been in Angola the situation would not have arisen?
Lord Trefgarne: My Lords, this matter arose just before the South African incursion into Angola, but I have no doubt that the point again was not lost on His Excellency.
Lord Chalfont: My Lords, is the noble Lord aware that my Question does not refer to the foreign or domestic policies of the Government of South Africa, which I am not here to defend? The Question refers to a film which the Independent Broadcasting Authority itself has said was not impartial and did not rise even to the minimum standards of journalistic integrity? Is the noble Lord further aware that when the Government of Saudi Arabia made a similar representation to Her Majesty's Government about a film which had offended them his noble friend the Secretary of State for Foreign and Commonwealth Affairs made a public apology? Has such an apology been considered in this case?
Lord Trefgarne: My Lords, I do not think that the two are in any way comparable. In any event, the simple fact remains that we have no control over these television programmes.
Lord Jenkins of Putney: My Lords, is the noble Lord aware that some of us are not particularly proud of the posture of this country towards Saudi Arabia in relation to the other incident which the noble Lord, Lord Chalfont, mentioned and are rather glad that it has not been repeated on this occasion?
Lord Trefgarne: My Lords, the noble Lord, Lord Chalfont, did refer to what he described as inaccuracies and errors in the film about which the South Africans were complaining. It is no part of my job to defend that film which in fact I did not see, but I do take the point of the noble Lord.
Lord Orr-Ewing: My Lords, is the noble Lord aware that the imbalance on both channels, both the ITA and the BBC, is sometimes so glaring that one does wonder whether we have got the best possible process for controlling it through independent authorities? I am not for a moment suggesting that we should control it through Parliament, but there is lack of balance. A recent BBC documentary suggested that the Vietnam war was the American war. This in no way reflects history and in no way reflects the fact that North Vietnam was attacking South Vietnam. To describe it in those terms in relation to a very important ally of ours is quite incorrect.
Lord Trefgarne: My Lords, the fact is that we get complaints from all sides about the content of television programmes, press articles and so on. I suspect that we get it about right.
Lord Elwyn-Jones: My Lords, is not the use of the word "control" over the broadcasting authorities rather sinister and dangerous? This does not, I hope, reflect the views of the Front Bench opposite. However, it is rather dismaying to hear it even from a Back Bench.
Lord Trefgarne: My Lords, the noble and learned Lord well knows the answer to that question As I said in the original Answer, and in my first or second supplementary, the Government have no control over the content of television programmes and certainly seek none.
Lord Orr-Ewing: My Lords, may I make it clear that I was not suggesting that we should have any control from Parliament? I specifically made that point. I am sure that it was an error if I said the opposite, and I apologise. However, I think that the noble and learned Lord opposite got it wrong.
Lord Derwent: My Lords, it was quite clear that my noble friend was talking about control of television by the television authorities.

Matrimonial Homes (Family Protection) (Scotland) Bill [H.L.]
3.15 p.m.
The Minister of State, Scottish Office (The Earl of Mansfield): My Lords, I beg to move that the Commons amendments be now considered.
Moved, That the Commons amendments be now considered.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
[References are to Bill [124] as first printed for the Commons.]
1 Clause 1, page 1, line 9, after 'home', insert '(an "entitled spouse")'.
2 Clause 1, page 1, line 10, after 'permitted', insert '(a "non-entitled spouse")'.
3 Clause 1, page 1, leave out 'non-titled spouse' and insert 'non-entitled spouse'.
4 Clause 1, page 1, line 13, leave out 'titled' and insert 'entitled'.
5 Page 2, line 3, leave out 'a "titled spouse"' and insert 'an "entitled spouse"'.
6 Page 2, line 3, line 8, leave out 'titled spouse' and insert 'entitled spouse'.
7 Page 2, line 3, leave out 'non-titled spouse' and insert 'non-entitled spouse'.
8 Page 2, line 3, line 10, leave out 'non-titled spouse' and insert 'non-entitled spouse'.
9 Page 2, line 3, line 14, leave out 'non-titled spouse' and insert 'non-entitled spouse'.
10 Page 2, line 3, line 20, leave out 'non-titled spouse' and insert 'non-entitled spouse'.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 1 to 10.
Consideration of these amendments falls into a number of groups. It may well be that the labours of the House in this regard will be considerably less than might appear from the list of amendments. In fact, they come into about 26 packages, if I may so call them. While speaking to Amendments Nos. 1 to 10, I should also like to speak to Amendments Nos. 12 to 25, 32 to 35, 40 to 42, 45 and 46, 48 to 51, 53 and 54, 59 to 66, 70 to 72, 74 to 100, 102 and 103, 105 to 110, 113 to 115, 124 to 126, 131, 133 to 135, and 139 and 140.
At I think the Report stage when this Bill was before your Lordships' House my noble friend Lord Selkirk drew the attention of the House fairly forcibly to the misunderstandings which could arise from the use of the words "titled" and "non-titled" as shorthand expressions which were intended to make the Bill easier to follow. In the ensuing debate it is no understatement to say that his objections were strongly supported by your Lordships. In view of the eventual decision to which the House came and the obvious

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feelings on the matter, the Government have of course reconsidered the drafting.
I said then, and I think everybody agrees, that some kind of shorthand phrase is essential if the Bill is to be intelligible. The number of amendments changing "titled" to "entitled" number some 100. It indicates how cumbersome it would be if one had to spell out the precise identity of individuals referred to in the Bill without resorting to some kind of abbreviated term. I say that because, unfortunately, no very neat phrase has come to our rescue to lay all doubts as to style as well as to meaning.
I do not in any way wish to seem ungenerous either to my noble friend or indeed to the decision of the House, but I cannot really commend the amended forms, "entitled" and "non-entitled", as significant improvements in brevity or, indeed, elegance of expression. But in the sense that they do bring greater clarity of meaning to the Bill and remove the sense of ambiguity which my noble friend so persuasively argued in front of your Lordships, I commend them to the House.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
The Earl of Selkirk: My Lords, I should like to thank the noble Earl for agreeing to the views expressed by the House with a clarity rarely reached in this House on any occasion. I see nothing lacking in clarity or brevity or conciseness in the words which have been put in here. I am grateful to my noble friend because I suspect that behind the scenes there has been a battle royal of a major character. I do not know who the belligerents were—whether they were those higher in the pecking order or perhaps the draftsmen. What I do know is that it aroused the utmost fury in the Scottish Law Commission, who burst into print on the subject. I wrote an admirable reply, but for some reason the editors of The Times do not seem to think that replies are necessary. Whether this is on a direction from Australia or New York it is not for me to say. I am extremely grateful to the noble Earl for agreeing to this, which I must say leaves no doubt that this is a greatly improved Bill.
Lord Ross of Marnock: My Lords, it is certainly an improvement. It was pointed out I think even at Second Reading how wrong it was to have this very important Bill spattered about with rights given to "titled spouses", which seemed rather as though we were dealing in many ways with our own affairs here. I regret very much that it had to wait for another place to put this right.
I am sure many of your Lordships will be dismayed by the formidable list of amendments which are here—140 of them. If we had done our job properly in the first instance there would probably have been only about 30. We should have seen our way through this and not been terrified that someone might have to delay their visit to Blackpool in order to get rid of all these amendments. I think the noble Earl is very wise. He is commending something to the House which is certainly worthwhile, and it is much clearer.
On Question, Motion agreed to.
3.22 p.m.

COMMONS AMENDMENT
11 Page 2, line 21, leave out 'or a justice of the peace'.
The Earl of Mansfield: I beg to move that this House doth agree with the Commons in their Amendment No. 11. This amendment was in fact proposed by the Opposition in another place. It arises from a concern that qualified legal advice should be available before renunciation is given. Your Lordships may recall that we debated this question of renunciation ourselves, as also did the other place. The conclusion was reached that, for the reason I have stated—namely, that qualified legal advice should be available—it was thought that a renunciation ought only to be sworn before a notary public. A justice of the peace might be unlikely to have the necessary grasp of the law to offer competent advice on this important step and that is because justices of the peace in Scotland as in England can be lay persons. The amendment accordingly removes the possibility of a renunciation being sworn before a justice of the peace, thus requiring that a renunciation must be sworn before a notary public—and in Scotland a notary public must be a solicitor.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
Lord Ross of Marnock: My Lords, this is an important amendment. We are giving a completely new right, mainly to spouses who do not share the ownership or tenancy of a house and, if we make it too easy to obtain renunciation, then virtually in the same clause we are giving the right and allowing it to be thrown away. Many people were concerned that the informality of swearing before a justice of the peace made it a little too easy to allow people to renounce their rights without appreciating how important they might be in three or four years' time when the circumstances of the marriage might be very difficult indeed. So, formalising it in this way and ensuring that legal advice will be available to the wife before she renounces—or to the husband if that be the case—is right and fair.
Many people who deal with the wives who are placed in the position of needing protection are not terribly satisfied with this. They would have liked the possibility of withdrawing that renunciation, it may be after a certain number of years. It just shows the importance of a wife in this position knowing what she is doing when she is renouncing this very valuable new right and forgetting that unfortunately today marriages do not last happily for ever.
On Question, Motion agreed to.

COMMONS AMENDMENTS
12 Clause 2, page 2, line 25, leave out 'non-titled spouse' and insert 'non-entitled spouse'.
13 Clause 2, page 2, line 26, leave out 'titled spouse' and insert 'entitled spouse'.
14 Clause 2, page 2, line 27, leave out 'titled spouse' and insert 'entitled spouse'.
15 Clause 2, page 2, line 31, leave out 'titled spouse' and insert 'entitled spouse'.
16 Clause 2, page 2, line 36, leave out first 'titled spouse' and insert 'entitled spouse'.
17 Clause 2, page 2, leave out 'titled spouse is entitled to' and insert 'entitled spouse may'.
18 Clause 2, page 2, line 38, leave out 'titled spouse is entitled to' and insert 'entitled spouse may'.
19 Clause 2, page 2, line 42, leave out 'titled spouse is 'entitled to' and insert 'entitled spouse may'.
20 page 3, line 2, leave out 'non-titled spouse' and insert 'non-entitled spouse'.
21 page 3, line 2, leave out 'titled spouse is entitled to' and insert 'entitled spouse may'.
22 page 3, line 2, line 4, leave out 'titled spouse' and insert 'entitled spouse'.
23 page 3, line 2, line 8, leave out 'titled spouse' and insert 'entitled spouse'.
24 page 3, line 2, line 11, leave out 'titled spouse' and insert 'entitled spouse'.
25 page 3, line 2, line 12, leave out 'a titled and a non-titled' and insert 'an entitled and a non- entitled'.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 12 to 25 en bloc. I have already spoken to these.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
26 Page 3, line 13, leave out 'may'.
27 Page 3, line 13, after 'them', insert 'may, having regard in particular to the respective financial circumstances of the spouses.'.
28 Page 3, line 28, leave out 'may'.
29 Page 3, line 13, after 'spouse,' insert 'may, having regard in particular to the respective financial circumstances of the spouses.'.
30 Page 4, line 1, leave out 'may'.
31 Page 4, line 1, after 'spouse,' insert 'may, having regard in particular to the respective financial circumstances of the spouses.'.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 26 to 31 en bloc. These amendments give a measure of guidance to the court in relation to orders apportioning expenditure between the spouses so that their respective ability to pay is not overlooked.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
32 Page 4, line 19, leave out 'titled spouse' and insert 'entitled spouse'.
33 Page 4, line 22, leave out 'titled spouse' and insert 'entitled spouse'.
34 Page 4, line 23, leave out 'non-titled' and insert 'non-entitled'.
35 Clause 3, page 4, line 27, leave out 'a titled and a non-titled' and insert 'an entitled and a non-entitled'.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 32 to 35 en bloc. I have already spoken to these amendments.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENT
36 Page 5, line 2, at end insert 'but, subject to section 2 of this Act, an order under this subsection shall not prejudice the rights of any third party in relation to the non-per-
384
formance of any obligation under such hire purchase or conditional sale agreement'.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 36. This amendment ensures that a non-entitled spouse who is granted the use or possession of furniture and plenishings on hire purchase must keep up the payments. Otherwise the finance company may take possession of the articles in question. Clause 2 gives the non-entitled spouse the right to make such payments.
I can perhaps sum up the effect of this by saying that this provision brings the rights of third parties with an interest in movable properties into line with the rights of third parties with an interest in heritable property.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
37 Page 5, line 14, leave out 'and'.
38 Page 5, line 21, at end insert'; and
(e) whether the entitled spouse offers or has offered to make available to the non-entitled spouse any suitable alternative accommodation.'.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 37 and 38 en bloc, and perhaps for the convenience of the House I may speak to Amendments Nos. 43, 69, 104, 136 and 137 at the same time.
These amendments arise out of concern that a very relevant practical factor in considering the criteria for regulating rights of occupancy in the matrimonial home, and indeed excluding a spouse from the home, was the availability of alternative accommodation. So, if there is no such accommodation and the applicant spouse would be homeless if occupancy of the matrimonial home were denied, there is obviously a far stronger case for granting an order than if a second home exists or if the non-applicant spouse is willing to pay the rent for another house or flat. I appreciate that it is not within the means of most people to pay for two homes; nevertheless it was thought that the Bill should take account of such circumstances where they arise.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.
3.30 p.m.

COMMONS AMENDMENT
39 Page 5, line 33, at end insert—
'(4A) The court shall not make an order under sub-section (3) or (4) above if it appears that the effect of the order would be to exclude the non-applicant spouse from the matrimonial home.'.
The Earl of Mansfield: My Lords, this amendment prevents an order to regulate the occupancy rights of the matrimonial home from having the effect of a de facto exclusion order. It is intended that exclusion shall only result from conduct injurious to the other spouse or to any children as set out in the next clause of the Bill,

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Clause 4. I beg to move that this House doth agree with the Commons in the said amendment.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
Lord Ross of Marnock: My Lords, on the face of it this amendment seems to be reasonable but it has been suggested to me that it might have some undesirable consequences. The effect of this amendment would be to prevent the courts from granting occupancy rights to the applicant non-entitled spouse, if the effect of that order is to exclude a non-applicant spouse who is also the owner or tenant of the house. It has been suggested to me that there is a glaring defect where the non-entitled spouse is also applying, not only for occupancy rights but also for exclusion, probably because of violence. It has been suggested to me that if the application for the exclusion order was granted then its effect would be to exclude the entitled spouse. But by this amendment the court is then obliged to refuse the application for occupancy rights. The absurd conclusion one comes to is that neither spouse can then occupy the matrimonial home. I do not know whether this is true or not, but if it is true, then it is virtually a nonsense. I wonder whether the Government have looked at this and whether or not the suggestions which have been put to me by the Scottish Womens' Aid are true. If they are then this is a pretty serious defect.
The Earl of Mansfield: My Lords, with respect, I do not believe that the doubts which have been expressed by the noble Lord, Lord Ross of Marnock, are justified in this case. I do not know whether the noble Lord has had occasion to read in Hansard the debate in another place, but this amendment arose following what I might call "bathroom debates"; they were debates of a clarity which only the other place can get up to. It was suggested that what the courts have to do under this clause is to regulate the occupancy rights to the matrimonial home. It was suggested that in an average house it would be impracticable to try and regulate the occupancy rights without causing possible sources of conflict between the spouses—for instance, over the use of the bathroom. Accordingly, it was proposed that in certain circumstances, by virtue of the operation of this clause, the occupancy rights of one spouse might be suspended. In those circumstances, this would amount to an exclusion order—and the noble Lord is perfectly right about that—without the requirement of injurious conduct laid down in Clause 4.
We are not talking here about exclusion orders or about injurious conduct, in this particular clause. An application under Clause 4 where violence is alleged is an entirely different matter. What the Government undertook to do as a result of that debate and the matters which were raised by the Opposition was to remove any doubt on this score. The amendment provides that the court shall have regard to the consequences in the practice of any restriction order so that it does not operate so harshly as to amount to a de facto exclusion order if the element of injury which is provided for in Clause 4 does not exist. In other words, it is a means of preventing a court from making what one might call a back-door
386
exclusion order where there is an absence of violence and/or injury.
As the noble Lord, Lord Ross of Marnock, knows very well, exclusion orders are a radical innovation in Scottish law, which are justified only when the physical or mental health of the other spouse or any children is at risk. To that extent, the amendment closes the door on any uncertainty as to the permissible effects of an order under Cluase 3. The amendment is entirely consistent with the spirit and intention of the Scottish Law Commission's recommendations on this matter.
Lord Ross of Marnock: My Lords, I have something more than a feeling that this Bill is becoming so complex that many people will not resort to the advantage it gives. Hitherto in this clause we have been giving guidance to the courts, but here we are saying to the courts, "Thou shalt not". No discretion is given to the court here. There is nothing here to say that this provision does not apply where there is violence. It may well be that there is a need to grant an exclusion order—and remember we are here talking about interim orders—and if it had been absolutely clear that if domestic violence was alleged or Clause 4 applied it would be a different matter, and that such cases could be excluded, then it would be much better.
The people who have been writing to me are the people who are dealing with this kind of problem—the problems of broken homes—every day. I would be very glad indeed to be able to inform them that they are mistaken in this respect, but I would rather have a very clear statement from the Minister that the circumstances which I described—which was their case—just could not arise and that such circumstances were entirely covered by Clause 4. But is a second application needed under Clause 4?
The Earl of Mansfield: My Lords, what Clause 3 does is to regulate the rights. An application is made to the courts under Clause 3(1) to declare the rights and the order which is prohibited is under Clause 3(3) or 3(4). The form of the order and the relief which is granted, whether it is under Clause 3 or Clause 4, are two different things according to the circumstances of the case. What I can tell the noble Lord is that none of the wives who are at risk—and these are the people about whom he is really concerned—will have their rights in any way fettered under this Bill as a result of this particular amendment.
On Question, Motion agreed to.

COMMONS AMENDMENTS
40 Page 6, line 2, leave out 'non-titled spouse' and insert 'non-entitled spouse'.
41 Page 6, line 4, leave out 'non-titled spouse's' and insert 'non-entitled spouse's'.
42 Clause 4, page 6, line 20, leave out a 'titled and non-titled' and insert 'an entitled and a non-entitled'.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in the said amendments.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENT
43 Page 6, line 37, leave out '(d)' and insert '(e)'.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in the said amendment.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.
3.40 p.m.

COMMONS AMENDMENT
44 Clause 5, page 8, line 11, leave out from 'is' to end of line 13 and insert 'an entitled and a non-entitled spouse, on the entitled spouse ceasing to be an entitled spouse in respect of the matrimonial home to which the order relates; or'.
The Earl of Mansfield: My Lords, this amendment is very nearly on all fours with the amendments in the first group to which I have already spoken. It not only incorporates the terms "entitled" and "non-entitled", but I should tell the House that it also improves the drafting so that it is clear that the occupancy right ceases only in relation to the specific matrimonial home covered by the court order. I beg to move that the House doth agree with the Commons in their Amendment No. 44.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
45 Clause 6, page 8, line 26, leave out "non-titled spouse" and insert "non-entitled spouse".
46 Clause 6, page 8, line 29, leave out "titled spouse" and insert "entitled spouse".
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 45 and 46, to which I have already spoken.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENT
47 Page 8, line 36, at end insert "but does not include a conveyance under section 80 of the Lands Clauses Consolidation (Scotland) Act 1845;'.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 47. This amendment has the effect of amending the definition of "dealing" to cover the situation where powers of compulsory acquisition are exercised against a matrimonial home. The effect of the amendment is that where the entitled spouse requires to grant a conveyance of the property in implementation of the compulsory purchase order the consent of the non-entitled spouse is not necessary. I beg to move.
Moved, that this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
48 Page 8, line 37, leave out '"titled spouse"' and insert "entitled spouse"'.
49 Page 8, line 4, leave out '" non-titled spouse"' and insert '"non-entitled spouse"'.
50 Page 8, line 7, leave out 'non-titled spouse' and insert 'non-entitled spouse'.
51 Page 8, line 16, leave out 'non-titled spouse' and insert 'non-entitled spouse'.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 48 to 51, to which I have already spoken, en bloc.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENT
52 Page 9, line 18, after 'dealing' insert 'occurred or'.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 52, and I should also like to speak to Amendment No. 56. These are drafting amendments to make it clear that the grant of a heritable security completed before the marriage or the commencement of the Act is not a dealing for the purposes of Clause 6. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
53 Page 9, line 19, leave out 'titled spouse' and insert 'entitled spouse'.
54 Page 9, line 20, leave out 'non-titled spouse' and insert 'non-entitled spouse'.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments No. 53 and 54. I have already spoken to them.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENT
55 Page 9, line 20, leave out 'or'.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 55, and I should like to speak to Amendment No. 58. These amendments in effect offer protection to a bona fide purchaser against the risk of fraud by the seller. I do not think I need say any more.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENT
56 Page 9, line 21, after 'dealing' insert 'occurred or'.
The Earl of Mansfield: My Lords, I beg to move that the House doth agree with the Commons in their Amendment No. 56. I have already spoken to this amendment.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENT
57 Page 9, line 22, leave out 'passing' and insert 'commencement'.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 57. This amendment is needed to avoid confusion and uncertainty in the first phase after the Bill's enactment. Until regulations have been made to prescribe the form of consent to a dealing solicitors will be unsure as to how to proceed. It is accordingly intended that commencement should not precede the availability of the statutory prescribed consent form. The effect of this amendment will be to remove the risk of an unsatisfactory interim period.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
The Earl of Selkirk: My Lords, I should like to thank the noble Earl for this amendment. There is a great deal of work which has to be done, certainly by building societies, arising from this Bill. I would have thought a reasonable period would be six months in order that the preliminary work should be done. I think the relevant clause is Clause 21(2). I hope the noble Earl will take into consideration that not only in the Government but outside a great deal of work has to be done to make this situation satisfactory.
The Earl of Mansfield: My Lords, I am much obliged to my noble friend for his remarks. We shall, of course, pay close attention to what he has said.
Lord Ross of Marnock: My Lords, we all know that the Bill is going to pass probably this week, or next week at the latest, but when is it going to commence? Until such time as commencement day is fixed by the Government, of course, these rights are denied, not just in respect of this clause; it takes us to Clause 21:
"This Act … shall come into operation on such day as the Secretary of State may by order made by statutory instrument appoint".
I think we should be given some idea as to how long there will be between the passing of the Act and the actual commencement. It could deny people rights that they are waiting for, and waiting for with a certain amount of anxiety. Can we be told?
The Earl of Mansfield: My Lords, with the leave of the House, I do not think it is as simple as the noble Lord seeks to indicate. It is a question of phasing. I shall try to obtain the information and let the noble Lord know, hopefully by the end of the debate.
Lord Ross of Marnock: I thank the noble Earl.
On Question, Motion agreed to.

COMMONS AMENDMENT
58 Page 9, line 22, at end insert, 'or
(e) the dealing comprises the purchase of a matrimonial home by a third party who has acted in good faith, if, at the time of the dealing, there is produced to the third party by the entitled spouse—

(i) an affidavit sworn or affirmed by the entitled spouse declaring that there is no non-entitled spouse; or

(ii) a renunciation of occupancy rights or consent
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to the dealing which bears to have been properly made or given by the non-entitled spouse.'.

The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 58, to which I have already spoken on Amendment No. 55.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
Lord Drumalbyn: My Lords, may I ask my noble friend one question? It relates to subparagraph (ii). I am not familiar with the word "bears". Is it legal jargon or a misprint, and if it is legal jargon, what does it mean?
The Earl of Mansfield: My Lords, it is a good Scottish word. It is neither a misprint, nor jargon, legal or otherwise. It means, if I may educate my noble friend without giving him offence, "in all respects appears to".
Lord Drumalbyn: My Lords, I am much obliged to my noble friend.
On Question, Motion agreed to.

COMMONS AMENDMENTS
59 Page 9, line 31, leave out 'non-titled spouse' and insert 'non-entitled spouse'.
60 Page 9, line 40, leave out 'non-titled spouse' and insert 'non-entitled spouse'.
61 Page 10, line 3, leave out 'the non-titled spouse' and insert 'a non-entitled spouse'.
62 Clause 7, page 10, line 6, leave out 'a titled spouse' and insert 'an entitled spouse'.
63 Clause 7, page 10, line 8, leave out 'non-titled spouse' and insert 'non-entitled spouse'.
64 Clause 7, page 10, line 13, leave out 'non-titled spouse' and insert 'non-entitled spouse'.
65 Clause 7, page 10, line 15, leave out 'non-titled spouse' and insert 'non-entitled spouse'.
66 Clause 7, page 10, line 16, leave out 'non-titled spouse' and insert 'non-entitled spouse'.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 59 to 66, to which I have already spoken.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENT
67 Page 10, line 17, leave out 'unless proved otherwise, be deemed to'.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 67. This is purely a drafting amendment to remove words which add little, if anything, to the sense of subsection (2).
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.

LORDS AMENDMENT TO COMMONS AMENDMENT NO. 68
68A Line 6, leave out ("circumstance") and insert ("circumstances").
The Earl of Mansfield: My Lords, we come here not to a misprint but, curiously enough, to a mistake in the Bill which was noticed by me this morning. In consequence of it, therefore, I beg leave to move a manuscript amendment to the Commons Amendment No. 68, to leave out "circumstance" and insert "circumstances". I really do not think I need to justify this amendment. I beg to move.
Moved, That this House doth agree with the said Lords amendment to Commons Amendment No. 68.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENT
68 Page 10, line 19, leave out from 'where' to end of line 25 and insert 'it appears to the court—

(a) that the non-entitled spouse has led the entitled spouse to believe that he or she would consent to the dealing and that the non-entitled spouse would not be prejudiced by any change in the circumstances of the case since such apparent consent was given; or

(b) that the entitled spouse has, having taken all reasonable steps to do so, been unable to obtain an answer to a request for consent.'.

The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their amendment No. 68 as amended by your Lordships. The amendment as the Commons intended it was to provide for a simpler and more flexible approach to the court's consideration of whether consent to a dealing had been unreasonably withheld. It allows for a change of mind on the part of the non-entitled spouse, if there has been a significant and prejudicial change in circumstances, and leaves it to the discretion of the court to decide on what constitutes reasonable steps to obtain an answer to a request for consent.
Moved, That this House doth agree with the Commons in the said amendment as amended.—(The Earl of Mansfield.)
Lord Drumalbyn: My Lords, I wish to raise a very small detail. I wonder whether the reference to line 25 should not be to line 26, because otherwise the words "has been acknowledged" seem to be meaningless.
The Earl of Mansfield: My Lords, I fancy that my noble friend's eye is even more eagle than mine. However, this is part of the description of the Bill rather than what will appear in the Act and I think, with respect, that it matters not.
On Question, Motion agreed to.

COMMONS AMENDMENT
69 Page 10, line 30, leave out '(d)' and insert '(e)'.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 69 to which I have already spoken.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
70 Page 10, line 34, leave out 'non-titled spouse' and insert 'non-entitled spouse'.
71 Page 10, line 38, leave out 'a titled spouse' and insert 'an entitled spouse'.
72 Page 10, line 38, leave out 'non-titled spouse' and insert 'non-entitled spouse'.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 70 to 72 inclusive, to which I have already spoken.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.
3.55 p.m.

COMMONS AMENDMENT
73 After Clause 7, insert the following new clause:
'Interests of heritable creditor
—(1) The rights of a third party with an interest in the matrimonial home as a creditor under a secured loan in relation to the non-performance of any obligation under the loan shall not be prejudiced by reason only of the occupancy rights of the non-entitled spouse; but where a non-entitled spouse has or obtains occupation of a matrimonial home and—

(a) the entitled spouse is not in occupation; and

(b) there is a third party with such an interest in the matrimonial home,

the court may, on the application of the third party, make an order requiring the non-entitled spouse to make any payment due by the entitled spouse in respect of the loan.
(2) This section shall not apply unless the third party in granting the secured loan acted in good faith and before the granting of the loan there was produced to the third party by the entitled spouse—

(a) an affidavit sworn or affirmed by the entitled spouse declaring that there is no non-entitled spouse; or

(b) a renunciation of occupancy rights or consent to the taking of the loan which bears to have been properly made or given by the non-entitled spouse.'.

The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 73. This is altogether, I was about to say, a more important amendment, but that is probably the wrong word: it is a more substantial amendment than most that we have been discussing. This new clause protects the interests of building societies and other heritable creditors so that mortgage or loan repayments are maintained by the non-entitled spouse, where he or she is in sole occupation of the matrimonial home and the entitled spouse is not making the necessary payments. This of course could arise following an exclusion order. It is open to the non-entitled spouse to seek an order apportioning expenditure so that the excluded spouse pays his fair share. It would be wrong for that spouse to enjoy occupancy without paying for it; this was a possibility in certain circumstances under the Bill before the amendment was made.
I should perhaps say particularly to my noble friend Lord Selkirk that this amendment was tabled following representations made by the Building Societies' Association. As my noble friend well knows, a number of meetings took place earlier in the year and my honourable friend Mr. Rifkind eventually decided that an amendment was needed. The various officials including those in the Scottish Office and the Building Societies Association have been in regular contact during the passage of the Bill through another place. I understand that the Building Societies Association have indicated that generally speaking they

393
are content with the anticipated operation of the new clause. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
The Earl of Selkirk: My Lords, I should like very much to thank my noble friend for this clause. It is a very important clause indeed. I am afraid the truth is that when this Bill was first introduced the position of third parties was completely omitted. If noble Lords care to look at the explanatory clauses in the Bill as it was originally presented to the House they will see that there was no mention whatever of the position of third parties. That is of the utmost importance. Anyone buying a house must be sure of getting a clear title. As the Bill stood originally that was not the case.
I should like to ask one or two questions because although I believe that the intention of this new clause is quite clear, it does raise one or two complications as to what in the events of the world and the things that can happen to married couples might or might not happen. It is of vital importance that people should get a clear title. If anyone owns a house or occupies one and finds that there is some defect in the title, that would be of major concern to any family. There is no bigger contract which the average family ever enters into than that of buying a house. The intention of the Government is, I am sure, right. I am glad to say that I think that it works, but none the less I should like to ask one or two questions.
The first point is that in the event of someone holding a house under mortgage failing in his obligations then action can be taken to make him pay. That is fair enough. We then come to the second part of the clause which deals with the purchase of the house which may be subject to a matrimonial obligation. If we look at subsection (2)(a) and (b) we sec that there is reference to an affidavit declaring that when the mortgage was granted there was no non-entitled spouse and in paragraph (b) there is reference to the renunciation of any title. A lot of things can happen about that and I just want to mention them because some of them are pretty odd. First, the spouse may disappear. Secondly, the affivadit which is made may be false. Thirdly, if the affidavit is, for example, 10 or 20 years old will that be acceptable? What do you do with the affidavit? Do you register it with the Registrar of Savings? All these things are there and there may be others that one can think of, because very odd things do happen sometimes with families.
I believe that the Government's intention is clear. They want to be quite certain that the title of a third party buying a house would not be subject to any defect. But will they be prepared to say that, if the courts interpret this—and this is what matters—in a manner which is not the intention of the Government, they will give close consideration or even an undertaking that they will consider any request for amending legislation? That is absolutely fundamental to the security of tenure of house ownership; I believe that the Government and the House agree with owner occupation. If there were to be any doubts about this, it would constitute a very serious impediment to the spread and increase of owner occupation.
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The Government have done what they can to put right a situation which was wholly absent when the Bill began. I am very grateful to them for doing so and for listing the representations, which are absolutely right. However, I should like to be clear that this must be correct in the view of the courts, and, bearing in mind the extreme variations of a wife disappearing or a wife appearing who possibly was not known about and a number of other circumstances, it is possible that the wordings are not sufficient. I should like to ask the noble Lord whether he can answer those questions because I believe it is important to be clear about what should and can be done.
The Earl of Mansfield: My Lords, I shall certainly try to answer my noble friend's questions. The situation with which we are dealing here comes about where there is a purchase and at the same time security is taken. In those circumstances, so I believe, it would not be necessary to register, for instance, the affidavit. It is enough for the creditor—that is, in most cases the building society seeking to rely on that affidavit—to retain it.
As my noble friend knows quite well, many consultations took place as between the Building Societies' Association and, indeed, other bodies and the Government while the Bill wended its way through both Houses, in order to try to see that this provision should be as watertight and as clear, particularly to the courts, as possible. Certainly there is every confidence on the part of the Government and the draftsmen that they have got it right. But, of course, it happens—and I acknowledge it—that however much care is taken and however much consultation there will be, the courts will seek to place an interpretation on legislation which no one could possibly have foreseen at the time it came to be drafted or before that when instructions were given to the draftsmen.
If that happens and if, as a result, a situation is produced which is unsatisfactory, I have absolutely no doubt—because the position would be as important as my noble friend says, particularly in relation to house owners—that the Government of the day would give very anxious consideration to amending legislation to correct the position. But, of course, my noble friend knows as well as I do that I cannot go further than to say what I believe any future Government would do.
Lord Ross of Marnock: My Lords, one of the dangers that are bound to arise over the complications that are envisaged—and rightly envisaged—by building societies is that building societies may well, in the case of first-time purchasers, require a renunciation. If that takes place as a matter of routine, it would virtually destroy the protections that we are offering within the Bill. I do not know whether or not it could be avoided.
The noble Earl, Lord Selkirk, will of course remember that in the original inquiry, which led to the Bill itself, there was a very complicated machinery in respect of registration of the right of the non-titled spouse. The Government, I think, quite rightly, shied away from the complications. It would have been far too much for most people. However, there is now this danger that in respect of home ownership we may find that it will become a matter of routine

395
for building societies to ask for that affidavit showing that the wife, or the non-entitled spouse, has renounced her rights to occupancy in order to prevent the difficulties that might well arise either over the sale of the property or if there is a breakdown of the marriage, when someone has to shoulder the burden who did not normally expect to. We must face this. The Government, in their discussions with the building societies, probably arrived at what was the best possible form of words to give protections and at the same time not to deprive a spouse of the possibility of protections offered in Clause 1 of the Bill.
The Earl of Selkirk: My Lords, the noble Lord, Lord Ross of Marnock, is perfectly correct. When you buy a house today you must have one of two things: either a renunciation from the wife as well as from the husband, otherwise you cannot sell the house; alternatively, you must have an affidavit saying that when the security was made there was no spouse at all. This must become an absolutely routine matter in conveyancing everywhere. I am very grateful to my noble friend for what he has said. I cannot go into all the conceivable details. His intention is perfectly clear and his recognition that what is required is essential for the wellbeing of the householder. He said that, and I am extremely grateful to him.
Lord Drumalbyn: My Lords, I should like to ask one question on this. I am sure that there is a risk, as the noble Lord, Lord Ross, pointed out, but am I right in thinking that in all these cases it is only the occupancy of the house that is transferred, where it is transferred, and that residual interest—presumably a half interest in normal cases—would remain with the entitled person? That being so, is it not likely that the entitled person would make sure that the house was not sold; in other words, that the entitled person would make sure that the non-entitled person who has occupancy would be in a position to maintain the payments.
The Earl of Mansfield: My Lords, I think that I can answer that question and also the noble Lord, Lord Ross, in this way. It would be wrong for a wife—because it very nearly always will be a wife—to enjoy the occupancy of what had been the matrimonial home without paying for it. This possibility was very much in the minds of everyone when this amendment came to be drafted. The whole thrust of house ownership at the moment is towards joint ownership. I suspect that the number of houses which are, in fact, now bought on mortgage in the name of only one spouse is comparatively small as compared with the whole. So it is believed that this is the solution which the building societies would prefer and this is the case with mortgages as they are now and and will be in the future. Therefore, to that extent I think that the fears of the noble Lord, Lord Ross, are—I shall not say groundless because that would put it much too far—perhaps less grave than he thinks.
On Question, Motion agreed to.
4.8 p.m.

COMMONS AMENDMENTS
74 Clause 8, page 11, line 17, leave out 'titled spouse' and insert 'entitled spouse'.
75 Clause 8, page 11, line 17, leave out 'non-titled spouse' and insert 'non-entitled spouse'.
76 Clause 9, page 11, line 32, leave out 'a titled spouse' and insert 'an entitled spouse'.
77 Clause 9, page 11, line 33, leave out 'non-titled spouse' and insert 'non-entitled spouse'.
78 Clause 9, page 11, line 34, leave out 'non-titled spouse' and insert 'non-entitled spouse'.
79 Clause 9, page 11, line 38, leave out 'non-titled spouse' and insert 'non-entitled spouse'.
80 Clause 9, page 11, line 42, leave out 'non-titled spouse' and insert 'non-entitled spouse'.
81 Clause 9, page 12, line 9, leave out 'non-titled spouse' and insert 'non-entitled spouse'.
82 Clause 9, page 12, line 12, leave out '"titled spouse"' and insert '"entitled spouse"'.
83 Clause 9, page 12, line 12, leave out '"non-titled spouse"' and insert '"non-entitled spouse"'.
84 Clause 9, page 12, line 27, leave out 'a titled spouse' and insert 'an entitled spouse'.
85 Clause 9, page 12, line 28, leave out 'non-titled spouse' and insert 'non-entitled spouse'.
86 Clause 9, page 12, line 29, leave out 'titled spouse' and insert 'entitled spouse'.
87 Clause 9, page 12, line 30, leave out 'non-titled spouse' and insert 'non-entitled spouse'.
88 Clause 9, page 12, line 31, leave out 'non-titled spouse' and insert non-entitled spouse'.
89 Clause 9, page 12, line 34, leave out 'non-titled spouse' and insert 'non-entitled spouse'.
90 Clause 9, page 12, line 35, leave out 'titled spouse's and and insert 'entitled spouse's'.
91 Clause 9, page 12, line 38, leave out '"titled spouse"' and insert '"entitled spouse"'.
92 Clause 9, page 12, line 38, leave out '"non-titled spouse"' and insert '"non-entitled spouse"'.
93 Clause 11, page 13, line 11, leave out 'a titled spouse' and insert 'an entitled spouse'.
94 Clause 11, page 13, line 12, leave out 'non-titled spouse' and insert 'non-entitled spouse'.
95 Clause 11, page 13, line 13, leave out 'non-titled spouse' and insert 'non-entitled spouse'.
96 Clause 11, page 13, line 17, leave out 'non-titled spouse' and insert 'non-entitled spouse'.
97 Clause 11, page 13, line 19, leave out 'non-titled spouse' and insert 'non-entitled spouse'.
98 Clause 11, page 13, line 20, leave out '"titled spouse"' and insert '"entitled spouse"'.
99 Clause 11, page 13, line 20, leave out '"non-titled spouse"' and insert '"non-entitled spouse"'.
100 Clause 12, page 13, line 24, leave out 'non-titled spouse' and insert "non-entitled spouse".
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in the said amendments en bloc. I have, in fact, already spoken to these amendments.
Moved, That this House doth agree with the Commons in the said amendments—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENT
101 Page 13, line 26, after 'providing' insert ', subject to sub-section (10A) below'.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in the said amendment. I should also like to speak to Amendments Nos. 111 and 116. These amendments remove the risk of wives, who wish to obtain the transfer of a tenancy of their council house, having to pay substantial sums of compensation because of the potential capital

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gain which could be realised by the other spouse if the house was purchased at a discounted price under the Tenants' Rights etc. (Scotland) Act 1980.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
102 Page 13, line 26, leave out 'non-titled spouse' and insert 'non-entitled spouse'.
103 Page 13, line 27, leave out 'titled spouse' and insert 'entitled spouse'.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 102 and 103, to which I have already spoken.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENT
104 Page 13, line 35, leave out '(d)' and insert '(e)'.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 104, to which I have already spoken.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
105 Page 13, line 38, leave out 'non-titled spouse' and insert 'non-entitled spouse'.
106 Page 14, line 2, leave out 'non-titled spouse' and insert 'non-entitled spouse'.
107 Page 14, line 6, leave out 'titled spouse' and insert 'entitled spouse'.
108 Page 14, line 9, leave out 'non-titled spouse' and insert 'non-entitled spouse'.
109 Page 14, line 12, leave out 'titled spouse' and insert 'entitled spouse'.
110 Page 14, line 14, leave out 'titled spouse' and insert 'entitled spouse'.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 105 to 110, to which I have already spoken.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
111 Page 14, line 39, after 'providing 'insert', subject to sub-section (10A) below,'.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 111, to which I have already spoken.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENT
112 Page 15, line 6, at end insert—
(aa) in subsection (4) for the words "non-entitled" there shall be substituted the word "applicant".'.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No 112. This is a drafting amendment needed to modify the earlier provisions in Clause 12 to reflect the different situation where both spouses are joint or common tenants.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
113 Page 15, line 7, leave out '"non-titled"' and insert '"non-entitled"'.
114 Page 15, line 8, leave out 'titled spouse' and insert 'entitled spouse'.
115 Page 15, line 12, leave out '"a non-titled"' and insert '"a non-entitled"'.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 113, 114 and 115, to which I have already spoken.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENT
116 Page 15, line 20 at end insert—
'(10A) Where the matrimonial home is a secure tenancy within the meaning of the Tenants' Rights Etc. (Scotland) Act 1980, no account shall be taken, in assessing the amount of any compensation to be awarded under subsection (1) or (9) above, of the loss, by virtue of the transfer of the tenancy of the home, of a right to purchase the home under Part I of that Act.'.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 116, to which I have already spoken.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENT
117 Clause 15, page 17, line 18, leave out 'released' and insert 'liberated'.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 117. This is a purely drafting amendment to achieve the consistent use of the word "liberated" in the Bill.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
118 Page 18, line 21, at end insert—
"(ia) the statement referred to in paragraph (a)(ii) above discloses a prima facie breach of interdict by the non-applicant spouse.'.
119 Page 18, line 23, leave out 'in respect of those facts and circumstances'.
120 Page 18, line 30, leave out 'sub-paragraphs (i) and (ii) of'.
121 Page 18, line 31, leave out 'do' and insert 'does'.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their

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Amendments Nos. 118, 119, 120 and 121 en bloc. These amendments provide that among the factors on which the sheriff must be satisfied before he orders the further detention of the arrested spouse is that a prima facie case for breach of interdict exists. This will avoid a person being detained in custody where there could be no prospect of success in a subsequent action for breach of interdict. It involves the sheriff in considering the nature of the breach of interdict for which the spouse was arrested as well as the risk of further violence. It provides an enhanced safeguard against the unreasonable encroachment of an individual's liberty.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENT
122 Page 18, line 33, at end insert, "and in computing the period of two days referred to in paragraph (a) and (b) above, no account shall be taken of a Saturday or Sunday or of any holiday in the court in which the proceedings for breach of interdict will require to be raised.".
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 122. The purpose of this amendment is to make it clear that the two days referred to in the clause refer to two court days, excluding weekends and court holidays. Otherwise the position might be that the arrested spouse might be liberated before there was an opportunity to hear the other spouse's action for breach of interdict. The essential purpose of the further detention would be to protect the applicant spouse from molestation or anxiety in the period from the arrest to the hearing of the action.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENT
123 Divide Clause 15 into two clauses, one consisting of subsections (1) and (2) and the other of subsections (3) to (7).
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 123. Noble Lords may recollect that when the Bill was before your Lordships several noble Lords thought that Clause 15 became unduly long following its amendment in this House. It was therefore thought desirable to split it into two separate clauses. The first deals with the exercise by the police of the power to detain or liberate the non-applicant spouse; the second covers the procedure to be followed where the spouse is detained but no criminal proceedings are to be brought against him.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
Lord Drumalbyn: My Lords, I do not know whether the splitting of the clause would provide an appropriate moment to say this. Am I not right in thinking that there is a minor misprint on line 23, page 17? It does not seem to be quite grammatical. A "non-applicant
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spouse who have been arrested". It is not quite right. It should be "has".
The Earl of Mansfield: My Lords, I am obliged to my noble friend. I shall have what I might call the master copy looked at.
On Question, Motion agreed to.
4.16 p.m.

COMMONS AMENDMENTS
124 Clause 16, page 18, line 38, leave out "(a 'titled partner')" and insert "(an 'entitled partner')".
125 Clause 16, page 18, line 40, leave out "(a 'non-titled partner')" and insert "non-entitled partner')".
126 Clause 16, page 18, line 42, leave out "non-titled" and insert "non-entitled".
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their amendments Nos. 124, 125 and 126, to which I have already spoken.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENT
127 Page 19, leave out from "(3)" in line 11 to "both in line 12, and insert—
"While an order granting an application under subsection (1) above or an extension of such an order is in force, or where.".
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 127. This drafting amendment makes it clear that the various parts of the Bill applied to cohabiting couples by Clause 16(3) have effect only for the duration of the relevant court order giving occupancy rights to the non-entitled partner.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENT
128 Page 19, line 26, at end insert—
"in section 6, subsections (1) to (3);
in section 7, subsections (1) to (4), but only where both partners of a cohabiting couple are entitled, or permitted by a third party, to occupy the house where they are cohabiting;
sections (Interests of heritable creditor) and 8; ".
The Earl of Mansfield: My Lords, on this occasion I beg to move that this House doth disagree with the Commons in the said amendment. It had been the Government's intention in another place to strengthen the occupancy right purported to be granted by a court so that it could not be defeated by a clandestine dealing on the part of the entitled partner. It has, however, proved extraordinarily difficult to graft this minor improvement on to the very complicated provisions of the Bill which relate to dealings. This was a Government amendment, I hasten to say, which was inserted with the agreement of the Opposition, possibly rather hastily at a late stage in the consideration of this Bill in another place.

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The situation which the amendment sought to cover was where a non-entitled cohabiting partner had been granted a right of occupancy for a matter of months by the court but yet during that period the other partner sought to sell the house. This it does adequately, but on closer consideration it became apparent that the amendment also had some unintended consequences. These were such that further snags would be introduced into the already complex field of house purchase transactions in Scotland. The principal difficulty to be identified was the requirement in relation to all house purchases for the seller to provide an affidavit that he was not cohabiting. This would be needed in addition to the spouse's consent or renunciation, or to an affidavit of no non-entitled spouse in terms of Clause 6(3)(e). This would cause embarrassment to some and additional expense to all sellers of houses in Scotland.
Without being facetious, the position would have been reached, if this amendment was agreed to, that all those persons in Scotland who wished to sell their houses would not only have to complete what I might call the ordinary matters in relation to the fact that they either had or had not got a spouse and that spouse was not entitled, or else consented, or had renounced, but they would also have to certify on oath that they did not have a mistress, and to some, at any rate, that might in certain circumstances prove embarrassing.
Since this consequence was not foreseen when the amendment was debated there was no opportunity for the other place to consider the implications, and I rather doubt whether such a requirement would be welcomed in all quarters. If we are, as the Government wish, to make house purchase cheaper and more attractive, I do not think that the amendment would go very far to achieving that desire.
There is a further difficulty. To be effective against a clandestine sale of the house, a court order granting a right of occupancy would have to be registered in the Land Register, since it is not defined elsewhere in the Bill as an overriding interest. Thus, the amendment was intended to bring some modest relief in circumstances which are, I suggest, likely to arise infrequently—after all, cohabiting partners in rented houses will not be affected—and there remains the existing protection for a non-entitled partner to seek a separate court order under Clause 3(1)(e) if he or she is apprehensive about a possible sale of the house by the other partner.
In the circumstances, the Government have come to the conclusion that the slight, though desirable, benefits achieved by the amendment are outweighed by the various difficulties which I have outlined. Within the present framework of the Bill, there are no ready alternative means of achieving its objective without undesirable consequences of some kind. My honourable friend Mr Rifkind has been in touch with the Opposition over these difficulties and I think it fair to say that I do not anticipate a constitutional clash between the Houses so far as the rejection of this amendment is concerned. I beg to move.
Moved, That this House doth disagree with the Commons in the said amendment.—(The Earl of Mansfield.)
Lord Ross of Marnock: This was a Commons amendment, my Lords. We were satisfied with the clause when it left us, and the change was obviously made
402
inadvisedly by the Government in another place. The other place agreed to it and I think we are quite right to disagree, to send it back and let them have another look at it so they can see how wrong they were in the first instance.
The Earl of Selkirk: My Lords, I am relieved that my noble friend is taking this clause out. It would be putting cohabiting couples in very nearly the same position as married couples. I believe we still have a certain respect for the institution of marriage and in my view this would be going too far. I also believe it would enormously complicate the whole conveyancing of properties. We were talking about building societies, but of course this applies to banks, insurance companies and every individual. When one buys a house one is well advised always to get either an affidavit under the new Clause 2A or alternatively a renunciation from the wife; if one does not get that one could be in trouble. That is a further complication and therefore, on pure grounds of conveyancing and simplicity and certainly of ownership, it is desirable that the provision should be removed, and I am therefore grateful to the Minister.
On Question, Motion agreed to.
A committee appointed to prepare a reason for such disagreement.

COMMONS AMENDMENT
129 Page 19, leave out line 27 and insert—
" sections 12 and 13;
section 14, except the words in subsection (2) from "and such a power of arrest" to the end;
section 15;".
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 129. This is a purely drafting amendment to avoid an inappropriate reference to the termination of marriage applying to cohabiting couples.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENT
130 Page 19, line 30, after "reference", insert "in these provisions".
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 130. This is a drafting amendment so that the reading of "a matrimonial home" as "a house" is restricted to the provisions listed in Clause 16(3) and does not apply elsewhere in the Bill.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENT
131 Page 19, line 34, leave out "non-titled" and insert "non-entitled".
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 131, to which I have already spoken.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENT
132 Page 19, line 41, at end insert—
"(4A) Nothing in this section shall prejudice the rights of any third party having an interest in the house referred to in subsection (1) above.".
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 132. This amendment will ensure that the existence of an occupancy right arising from a court order will not prevent a third party from securing their legitimate interests in respect of the house. For instance, a building society should be able to recover possession of the house in the event of the mortgage repayments not being made, regardless of the non-entitled partner's occupancy right.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
133 Page 20, line 5, leave out "non-titled" and insert "non-entitled".
134 Page 20, line 8, leave out "titled" and insert "entitled".
135 Page 20, line 12, leave out '"titled partner"' and insert "'entitled partner'".
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 133, 134 and 135, to which I have already spoken.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
136 Clause 17, page 20, line 21, after "including", insert
"(a)".
137 Clause 17, page 20, line 22, after "Act", insert "; and
(b) whether the spouse bringing the action offers or has offered to make available to the other spouse any suitable alternative accommodation.".
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 136 and 137, to which I have already spoken.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENT
138 Clause 20, page 21, leave out lines 1 to 3 and insert—
"'child of the family' includes any child or grandchild of either spouse, and any person who has been brought up or accepted by either spouse as if he or she were a child of that spouse, whatever the age of such a child, grandchild or person may be".
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 138. This amendment takes account of the reservations in respect of the original definition which were expressed on Report by the noble and learned Lord, Lord Fraser of Tullybelton. The new definition will include natural, adopted and stepchildren of either spouse, and grandchildren being brought up by one or both of the spouses. The child may be of any age, so this would therefore cover the case of the dependent, and possibly disabled, child of mature years living at home.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
139 Page 21, line 30, leave out "'titled spouse'" and insert "'entitled spouse'".
140 Page 21, line 30, leave out "non-titled spouse'" and insert "'non-entitled spouse'".
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 139 and 140. I have already spoken to these amendments.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.

Education (Scotland) Bill
4.26 p.m.
Lord Denham: My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Education (Scotland) Bill, has consented to place Her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
The Earl of Mansfield: My Lords, I beg to move that this Bill be now read a third time.
Moved, That the Bill be now read 3a.—(The Earl of Mansfield.)
On Question, Bill read 3a.
Clause 14 [Renumeration of teaching staff]:
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 1:
Page 49, line 39, leave out ("21") and insert ("14").
The noble Lord said: My Lords, it might be convenient to discuss Amendments Nos. 1 and 2, both of which stand in my name, together. They deal with the arbitration procedure following a breakdown in negotiations in respect of teachers' salaries. The clause sets up a new salaries and conditions of service committee. The Secretary of State is represented on that committee and if the negotiations fail to reach a satisfactory conclusion, it is the Secretary of State who is one of the people who agrees to arbitration, and he is the person who then sets up the arbitration and lays

405
down the procedure—in consultation of course—and decides on the arbiters. That is a fairly lengthy procedure and one would have thought that the Scottish Office and the Secretary of State would have a fair idea of what they want to do about the pay settlement.
However, we then have the position that when the arbiter reports and makes an award, the Secretary of State is given 21 days in which to intimate whether he will accept or reject the award. In my view, that is far too long. Remember, the negotiations may have been going on for one, two or three months. To wait for another 21 days for the Scottish Office or Government to make up their minds to reject or accept the award is too long to wait; I suggest a fortnight is long enough. After all, this is not something which will have come to the Government anew. They will have been in on the negotiations and know all about the arbitration—in fact, the procedure will have been set up and determined by the Secretary of State—so I suggest that 21 days within which he must make up his mind is too long, and I suggest 14 days.
But it does not end there. If he decides to reject or set aside the award, he then has another fortnight before drawing up the order and putting it before Parliament. The negative procedure is involved and so the order has to lie for 40 days before it can become effective, in order to give Members of another place, and indeed Members of your Lordships' House, an opportunity to object and pray against it. So we have the position that after the intimation of an award, 75 days could elapse before the changed salaries are paid. If the Secretary of State decided to set aside the award, he has powers in the Bill to make changes.
Anyone who knows anything at all about the build-up of expectation and the frustration felt while awaiting the outcome will realise that the period is far too long, and I am surprised that the Government have gone ahead with it. I know that the subsection states "within 21 days" and "within 35 days", but I still think that the maxima are far too long. So I suggest that we cut each period by seven days, and in that I think I have been fairly generous to the Government. My Lords, I beg to move.
The Earl of Mansfield: My Lords, what we are talking about here is a decision on the part of the Secretary of State to overturn an arbitration award, and following that the implementation of his decision by the laying of an order before Parliament. As the Bill stands, it allows 35 days for the complete process: three weeks for the decision to be taken and another two weeks for the laying of the order. That is the maximum, as the noble Lord, Lord Ross of Marnock, very fairly said. The noble Lord's amendments would reduce the overall period to four weeks by shortening the period during which the award is to be under consideration. I do not suppose that the noble Lord would claim that two weeks is too long for the second stage, during which the order has to be drafted, printed, and laid.
If that is so, the debate really comes down to the question of whether three weeks is too long for consideration. For reasons to which I shall come, I claim that it is not too long. During previous stages of the Bill we have examined different aspects of a decision to overturn an arbitrator's award. Not for
406
one moment am I suggesting that the amendments in any way follow those that we talked about during previous stages of the Bill. But what did emerge from our previous debates was, first, that it would be an extremely important decision that would be made. It might well be a finely balanced decision.
Secondly, it would be a decision to be taken not by the Secretary of State acting on his own, but by the Government as a whole in the light of economic and other factors, which would almost inevitably call for consultations between departments. Your Lordships might recall that in Committee we discussed the motivation behind the laying of such an order and then said that I thought that the national economic situation would be the obvious factor to cause the Secretary of State to come to his conclusion. A few days later we debated the matter again and the House came to the conclusion that such decisions, if taken, might very well be in line with what I might call general Government policy.
So, if the Secretary of State were to take such a decision, I suggest that inevitably he would do so in the light of discussions with other Government departments and Government colleagues. The award might come at a time of year when it would be very difficult to contrive very quick consultation, as is provided for in the amendment of the noble Lord, Lord Ross. I suggest that it would be unwise to constrict the taking of such a decision by avoidably limiting the scope for reasonable discussion and consultation involving the Secretary of State and possibly other departments.
The motivation behind the noble Lord's amendments is possibly prompted by what he said in effect during Committee: that the total period of 35 days, followed by another period of 40 days, during which a prayer might be made against the order, would mean that the teachers would be kept waiting for more than two months before they knew their fate. Not for one moment do I think that that would happen. The Secretary of State's decision must be given within 21 days. As I said previously, it would probably be given much sooner, but that is the maximum period, and it would be at that point that the teachers would know that the decision was either for or against the award. If the decision was against the award, it could be changed only if Parliament dissented on the tabling of the orders. So for all practical purposes after 21 days the teachers would know exactly where they stood.
For the reasons that I have given I cannot commend the amendments to the House. Furthermore, we must remember that the procedure in existing legislation has never been used, and I do not think that there is any reason to suppose that the procedure will be brought into play much more frequently. But even if it were, bearing in mind that the pay negotiations would have lasted several months before the matter ever came to the Secretary of State to decide whether to overturn an award, I do not believe that it would be wise, or to anyone's real advantage, to turn what should be an important and well considered decision into a precipitated decision merely to save one week, which is what it would come to. It is for that reason that I cannot commend the amendments to your Lordships.
Lord Ross of Marnock: My Lords, the noble Earl's reply was not unexpected, but it is still disappointing.

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The suggestion that the Secretary of State would hear of the matter only after the award is a bit of nonsense and is certainly not confirmed by my experience over a fair number of years of negotiations with teachers. The point is that under the new procedure the Secretary of State is still involved in the negotiations. He is there, he is represented, and no doubt it would be then that he would put forward something that was in line with the general policy of the Government. The matter does not come new to him after the making of an award.
Many people would feel that the Secretary of State ought to have been tied by the decision of an arbiter. I think that in many instances we would have felt quite disturbed if a local authority as the employer of teachers had been given the same freedom to disregard the award of an arbiter. I think it quite wrong to suggest that it requires three weeks.
The general policy is known; the attitude of the Government is known; the whole financial position of the country is known. To suggest that it would take all this time to get the negotiations within the Government settled is, I think, a bit nonsensical.
There is more justification for saying that more time is required after the Government have said "No, we are not accepting the award", because there is also the power for the Government to introduce an order in which the Minister makes changes suitable to him. There may still be an increased salary for the teachers. So all they know within the 21 days is that the award is rejected, if we are being pessimistic about it; and thereafter the time that is needed—and this is why I agreed to another fortnight—is for the Government to see the various people concerned and for the Minister to make up his mind what he is going to do in relation to the varous scales. That takes more time; but, to my mind, the decision as to whether to reject or accept the award can surely be taken within a fortnight.
I am not going to press the matter, but I am putting the point which has been put to me by many techers, that the haggling has been going on for months and then there is the ultimate decision to place the matter before arbitraton. It is not right for the Government to hang on for three weeks after the award is known. I think we want a speedy decision by the Government in that respect. It should really come within days. It should really come within, at most, I should have thought, a week, rather than a fortnight as I am suggesting or three weeks as the Government are insisting. This is really inviting trouble in an area where we know quite well there has been a certain amount of anxiety previously in relaton to these matters. But if the Government are adamant—and I can understand it at this particular time that they are—I do not see why I should press my amendment. However, I have given a warning to the Government that in respect of this they will run into trouble from the teachers. That being so, I beg leave to withdraw my amendment, and I shall not move Amendment No. 2.
Amendment, by leave, withdrawn.
[Amendment No. 2 not moved.]
4.43 p.m.
The Earl of Mansfield: My Lords, I beg to move that this Bill do now pass.
Moved, That the Bill do now pass.—(The Earl of Mansfield.)
Lord Ross of Marnock: My Lords, these are our last few words on the Bill. This is an important Bill, but to my mind it does not do justice to the needs of education in Scotland. There is the first part, which is a new parents' charter—choice for the parents! In actual fact, as I think is already well known in Scotland, this may well be limiting the amount of freedom of choice that there is to parents in respect of schools they select for their children, because for the first time we list a certain number of barriers. Before that there was full discretion to local authorities, which they used, and I think that in most cases they were able to meet the wishes of the parents.
Another factor comes into this, of course. The choice of school depends on the number of schools, and here now we have given a new power to local authorities to be able to close non-denominational schools without the consent of the Secretary of State. Of course, if you start closing schools you reduce the choice, and so this great extension of freedom of choice becomes illusory. For instance, there was the case that I instanced before, where at the present time the local authority in Aberdeenshire is closing seven schools, and the people who are annoyed about it are the parents. So you cannot proclaim a great extension of freedom on the one hand and at the same time, by closing a number of schools, reduce that freedom. So let us have no great heralding of the great new departures and the freedom of choice.
On the clauses that relate to the Warnock Commission—that is, children requiring special educational facilities—I think that what is being done there is to be commended, and I am sure that anyone who is interested in the handicapped and in their proper education and proper treatment will welcome it. But we must remember that the Government have already said that they are not going to spend any more money. I think we are in danger of misleading people as to a great advance here. I spoke about the business of dealing with the children before they go to school, where the power is given to the education authority and the duty is placed upon it to make sure that everyone knows about this so that they will be able to bring in children for medical examination even before school time—because the earlier these faults are discovered the better it will be. But, if the Government have not given local authorities the money to do this, and the money to make the necessary educational provision, we are in danger of deceiving the public about great advances that are not there. This is one of the things that I think the Warnock Commission asked for—that there should be more money spent in this way.
There is one very small point. We spoke about the demands on parents that they must bring their children forward for medical examination in respect of special educational needs. Of course, there is a fine of £50 now. A year ago that fine was £10. I do not know whether I am right (but perhaps someone will inform the Minister of State) that in the main legislation which we are amending by this Bill—I think it was passed through this House in April of last year—there is now a fine of £50 in respect of parents who, without reasonable cause, fail to submit their children for examination

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in respect of special educational needs. But we have not changed that in the case where, in ordinary education, it is thought desirable the child should be brought for medical examination. That remains at £10. I think there is a bit of a failure there.
On the question of the assisted places scheme, there is still a gap in our knowledge about how this is going to work, and that gap should have been filled by virtue of the fact that we are already working this scheme. This scheme is being worked under the power that was previously given to the Secretary of State to make grants to schools—the grant-aided schools, we call them. So we have the advantage of having all the regulations already before us. We have had them before us for quite a long time. In the Bill there is no indication of how the children are to be selected for the assisted places scheme, but if we look at the regulations we there find something indicating eligibility. There is the question of finance. In other words, the parents are required to put forward their relevant income and to see whether they meet the means test or the needs test.
But there is one other thing in the regulations, and that is that a person being given the assisted place shall be, in the opinion of the school, capable of benefiting from the education provided at the school. That is in the regulations, which I have here. That phrase used to be in the Bill, but it has been taken out of the Bill. So where does it come from? And is it justifiable to have that in regulations when it is not in the Bill? That is the position we are in now, at Third Reading. Having taken that phrase out of the Bill we are left with regulations for a scheme being applied in respect of which this phrase is used.
I do not know whether the department have looked at the legality of what they are doing, and certainly it may well be that there is such a wide power given in the regulations to the Secretary of State that this is all right. But it brings me back to the point to which I have not received an answer, the point as to how the Government will work this scheme and how the children will be selected. We are told that the one thing they will all have in common is that they will all be poor. There are 500 children presently being educated, given the benefit (according to the regulations) of this education. How were they selected? How many applied? Why were these particular 500 selected for this private education that we in Scotland do not regard as the highest form of education but which is going to cost the country several millions of pounds? And the Government simply leave it at this: that they have nothing to do with the selection of the children, that it is entirely up to the school.
If we do not know about it in advance, will the Government give us information in the future as to who are the 500 and how they were selected? Was there any examination? There is no need for examination, according to the statute, but there may be need for examination according to the regulations based on Clauses 73 and 74 of the main statute. Shall we be given any information as to the spead of the incomes of the parents? Is it the poorest who are getting priority, or is it not? I think one of my noble friends on this side asked what was the relevant income; and the relevant income is that which is defined by the Finance Act as, virtually, gross income. But, additionally, it is
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reduced by £600 for every child in the family who is dependent upon the parents. You could, therefore, have a fair income. I worked it out that you could have £8,000 a year before you are ruled out of this.
According to all that has been said, the poorest children were those who were going to be affected by this. I do not think that that will happen. I should like to get information from the Government, not in particular form but in general form, as to the type of child who is benefiting from or being given the advantage of this—because that is the new phrase in the statute—or given the opportunity of attending these schools and as to the occupation, the profession, of the parents. I think it would be an eye-opener and would allow us to judge whether this statute meets up with what was suggested by the Government.
I approve of what the Government have done in respect of teachers' salaries and the conjunction of the two committees into one. But I still think they are courting considerable difficulties by the powers they have taken for the Secretary of State in respect of arbitration and the time they have taken. One of the most difficult things over recent years has been the whole question of teachers' salaries. I do not want to see a resurrection of the kind of troubles we had some time ago. I wish the Bill well. It is probably well meant but it falls far short of the needs of education today.
My Lords, there is only one other matter. When we had another discussion the other day about changes in the universities, the Minister of State volunteered the information that in the right to appoint the principal of certain universities, including my own, Glasgow, the change had been made that instead of the Queen appointing them they are going to be appointed by the university court. He said that it had been an anomaly. It is not an anomaly; it is something that has gone on since the year 1571 inder the nova erectio. It is more a tradition than an anomaly. I notice that Edinburgh had the good sense to say, "No", to the Government when they wanted to make the change apply to them as well. However, the universities agreed to it, I believe. I hope that they have no second thoughts in future about whether they were wise in doing so.
My Lords, I am certainly not going to divide the House and, with those few criticisms, will allow the Bill to go forward. I hope that the other place in due course will attend to the amendments, and we have made some amendments and improvements to the Bill during its passage through this House.
The Earl of Mansfield: My Lords, I should like to echo what I think the noble Lord, Lord Ross, at least implied and that was that we have had a number of interesting and, at times, constructive debates during the passage of this Bill through this House. I am grateful to noble Lords opposite who have made a number of suggestions, some of which have now been incorporated into amendments. The improvement of the Bill has come about through the earnest efforts of noble Lords on both sides of the House and to them I am grateful.
I am not going to go through all the features of the Bill. I echo what the noble Lord, Lord Ross, has said in effect about the rights of parents in the future. These new provisions put beyond any doubt

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the rights of parents to ask that their children should attend the school they choose; because, as the House knows, the duty of the authority is to comply with such requests, except in certain specific circumstances which are set out in the Bill. Another innovation is the system of appeal; that is to say, the independent appeal committees which will hear references from aggrieved parents; and, over and above that, a second stage of appeal to the sheriff for the benefit of parents who remain dissatisfied with the decision of an appeal committee.
I regard that as a distinct improvement, but I am grateful to the noble and learned Lord, Lord Wilson of Langside, who exercised our minds in relation to the publicity which might be given to parents who were the subject of such an appeal. I am glad that such appeals will be heard by the sheriff in chambers. That will be a significant safeguard, particularly to those parents who take advantage of that procedure.
The noble Lord, Lord Ross, criticises the Government in effect for, on the one hand, as he says, providing an element of parental choice and, on the other hand, for giving the education authorities what amounts to a much wider discretion in the management of their own affairs to the extent that they will no longer need to seek the approval or consent of the Secretary of State for Scotland as far as the majority of school closures are concerned. We take the view that the education authorities should tailor their pattern as far as the provision of school places is concerned to local needs and circumstances of parents and children in their area. We remain convinced that there are circumstances where the interests of parents have to be safeguarded and, therefore, there are built into the provisions these safeguards and in due course these will be brought forward in the form of regulations. The idea is that the interests of the parents will be well protected and that they shall have certain statutory rights of consultation before any proposed changes in educational provision can be implemented. This is part of the Government's general policy of making local authorities more responsible for what happens within their own areas. I do not believe that the fact that they will be given greater responsibility in the matter of school closures will have the slightest effect on the wishes of parents to place their children in the schools of their choice.
Then the noble Lord commented upon the provisions which have been written into the Bill so far as the Warnock Committee is concerned. It is not easy to write the proposals of the committee and the principles which that committee laid down, into a statute. There have of course been a lot of amendments and minor changes so far as this part of the legislation is concerned. I am grateful to the noble Lord, Lord Ross, because I believe he invented the term "record of needs" which was an improvement on the simple term "record". At the same time that is much more satisfactory than the path which the English have trodden in their particular Bill
I perfectly appreciate that the Bill is silent so far as the employment of resources is concerned. There again, we regard this part of the Bill as erecting a framework. It is for the local authorities to decide their needs and priorities and to make the best use of
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their own resources as they think fit. That of course is a matter for them. Another matter upon which the noble Lord, Lord Ross, touched was the assisted places scheme. As I have inferred from previous consideration of this Bill, nobody pretends that this assisted places scheme is more than the first step in something which we hope will grow. The response has been encouraging. The number of children, as I said on Report, who are likely to enter the schools—whether boarding or day schools—is likely to be in the region of 800 during this first year. That we regard as being a very good start. Of course—as the noble Lord wanted through one of his amendments—it would have been nice if enough money had been available to give many more children the chance of a boarding school education, but it is not. Therefore, we took the view that the chance of a place in an independent school should be given as widely as possible so far as the number of children are concerned and we had recourse therefore in our thinking to the greatest good of the greatest number.
The noble Lord complained at the lack of a cumbersome and bureaucratic machinery so far as selection is concerned. I hope that I have made it plain on more than one occasion—and I do it now for what I hope is the last time—that the concern of the Government has been to avoid any such cumbersome or bureaucratic scheme so far as the placing of pupils in these independent schools is concerned. How these schools choose the pupils who are to attend is entirely a matter for them. If they want to have what in my younger son's school are referred to as "egg heads" no doubt they will ensure that the children that come under this scheme are just that. On the other hand, if they want children who perhaps are (shall I say?) less brilliant but perhaps with more rounded personalities, then it would be a matter for them to ensure that the children they receive under this scheme are of that type and character.
It is a matter for the school to assess and to take into account bearing in mind the type of facilities which they can supply or apply to the education, welfare and benefit of the children in their care. The noble Lord said quite rightly that the assisted places regulations at the moment in effect stem from the 1980 Act. New regulations would of course be made under (I think it is) Clause 5 of this Bill and consideration would then be given to removing the phrase "benefit from" so as to conform with the Bill which has no such criterion.
The noble Lord asks what information is or will be available regarding the income of the parents of the children who obtain assisted places. As I told the House when we considered this Bill on Report, the information is not yet complete. But when it is, when all the returns are in—which I anticipate that they will be shortly—such information will be available on request. I do not think that it is the kind of information which we would put out generally.
There were other matters in the Bill such as the development of religious education which I regard as being satisfactory, as indeed do most of the churches and religious bodies in Scotland, but I do not wish to detain the House unnecessarily. I hope I have said enough to do two things: first, to show the Government's considerable satisfaction and confidence in this Bill which is going to be of the greatest importance so far as all the children of Scotland are concerned in the

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future. Secondly, I hope very much that I have said enough to convey the appreciation which the Government feel and I personally feel to noble Lords such as the noble Lord, Lord Ross of Marnock. They have stimulated the Government by their suggestions and arguments into considering many matters of this Bill again and yet again and have contributed to the improvement of the Bill as it has passed through Parliament on its passage towards the statute book. With those words, I commend the Bill to the House.
On Question, Bill passed, and returned to the Commons with the amendments.

Beverley Minster and Amenity Land
5.6 p.m.
Lord Kennet Lord Kennet rose to ask Her Majesty's Government in view of the apparent breach of faith by the Beverley District Council in selling for housing land which its predecessor the Beverley Borough Council had brought under threat of compulsory purchase for public open space, whether they will now intervene to preserve the famous view of Beverley Minister from the south.
The noble Lord said: My Lords, let us turn our minds and imaginations to the town of Beverley in what used to be the East Riding of Yorkshire now known bureaucratically as North Humberside but known historically as that flat, romantic and beautiful part of England called Holderness. I am delighted that the noble Lord, Lord Holderness, is down to speak in this debate.
Beverley contains a Minster which by historical accident is not a cathedral; it is the sheerest accident that it should not be. It is a 13th century building and it has no rivals in this country except Salisbury Cathedral and Westminster Abbey. In my opinion and in the opinion of many who know all three buildings and have studied them, it is a cleverer building, a more coherent building and a more cheerful building than either of its two better known rivals.
It is largely unknown because Beverley is not on the way anywhere. It is on the way from York to Hull and nowhere else. Consequently, it is not on the tourist track. Immediately south of Beverley Minster there is a geographical feature which is unique in this country and very rare indeed elsewhere in Europe. That is an unbroken view of green fields and hedges straight from a cathedral out into the open country. There are no buildings whatever to the south of Beverley Minster. Forty years ago there was one and 200 years ago there may have been more. To a whole generation that is known as the unique view of what is in the opinion of many the finest Gothic cathedral in effect in this land.
It is now proposed to build on part of that site. Before coming to a more detailed description of what goes on there, I should like to state in one word that there is strong and possibly majority outrage among the people of Beverley about what is intended to be done. The purpose of this Question is to make known on a national scale in so far as I can from an Unstarred Question in this House the nature of the proposal and to suggest remedies.
I have in my hand a letter from the most reverend Primate the Archbishop of York which I will read to the House. He says:
"I write to add my voice to the many expressions of anxiety that you have received over the plans for the development of the area round Beverley Minster.
"There is a feeling that the local Borough Council is reluctant to stage an open and dispassionate inquiry into this particular development, and a fear that the opportunity for consideration will not recur if the proposed development begins."
"I therefore warmly support the desperate efforts being made, while there is still time, to stop this development taking place, and to press for a comprehensive enquiry.
"I understand that the Fine Art Commission, the Professor of Fine Arts at Hull University and my diocesan advisory committee in principle feel as I do. I hope your representations may be effective.—Stuart Ebor".
I have also received a letter from the former Archbishop of York, our colleague Lord Coggan, in broadly similar terms and I could occupy the time of the House for 10 or 15 minutes listing those from whom I have received analogous letters.
Let me now introduce the dramatis personae. First there is the developer, by name the St. Andrew's Street Housing Co-operative. This is a housing co-operative which desires to provide housing for old people and is in receipt of a Government grant from the Housing Corporation. That grant does not imply any approval for the plans; it is an automatic grant for intending house builders who meet certain qualifications, as this developer does.
Secondly, there is the Beverley District Council, formerly the Beverley Town Council, who are involved at every stage in the story. Thirdly, there are the local objectors, who are grouped in a forceful campaign and who are locked in a battle to the death, more or less, with the planning authority, the district council. In the old days one would have said that, fourthly, there was the county council, but that is no longer the case since planning powers are now devolved fully to the district council. Fourthly, therefore, there is the Secretary of State for the Environment, ably and, I hope, sympathetically represented today by the noble Earl, Lord Avon, opposite.
The story is as follows: In 1968 there was an application to build housing on that land. It was refused by the Beverley planning authority, the town council. There was an appeal and the appeal was dismissed. It appeared at that time—and I speak with personal knowledge—unthinkable that any such application should ever be permitted to spoil that view. Then in 1974—I think I have the date right—the Beverley District Council approached the owner of the land. The owner of the land was the owner of a school there which was closed. It was a charity called the Minster Old Fund and the Beverley District Council obtained the land from them at the low price of £4,000 by using the threat of compulsory purchase for public open space.
I should like now to introduce the fifth dramatis personae, the local Ombudsman or, more fully, the local Commissioner for the North and East Midlands of England, Mr. Patrick Cook, who works in York. He has made a report upon this matter; and he says, to cover the story so far—
"The schools' site and another small parcel of site were acquired by the Council in 1975 at a purchase price of £4,000. The price reflected the anticipated difficulty in gaining planning permission for any profitable development on a site so close to the

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Minster. In December 1974 a Chief Officer of the Council had written to the Charity Commissioners in London, who had been unwilling to consent to a sale at that price (which had been negotiated for the Council by the District Valuer). The Council sought to dissuade the Charity Commission from seeking higher offers in view of "—
this is a quotation from a letter from the Beverley District Council—
"(a) the determination of my Council to acquire the site for open space purposes, by the use of compulsory purchase powers if necessary; and (b) the unlikelihood that my Council as District Planning Authority, would permit any alternative development of the site."
The Minster Old Fund, the owner of this small patch of land and this derelict school building, with the consent of the Charity Commissioners, gave in and sold at the low price. I will now continue to quote from the Ombudsman's report. He goes on to say that the Beverley District Council:
"had in mind to redevelop the land and an adjoining area. They prepared a draft development brief which showed the land as being developed for residential purposes. Although the brief and the opportunity to comment were not advertised formally by the Council, as is customary in planning circles, the Council say that newspaper reports of their proceedings at that time meant that the proposals were well known locally".
That is as may be. At any rate, what happened next was that for £32,500 the council sold that land, with a commitment to planning permission for housing, to the St. Andrew's Street Housing Co-operative. That was in 1980, five years later. They are now the owners and have requested planning permission for development, and they have received it.
But now the plot thickens, and I wish to introduce another dramatis personae—a development company called Stepney, which is well known in that part of Yorkshire. Stepney have applied for planning permission for another part of that open field lying a little behind the land the Ombudsman reported on. This planning permission has not yet been considered by the Beverley District Council. The architect for both plans—for the St. Andrew's Street Co-operative plan (phase 1 as it is known) and the Stepney plan (phase 2), is the same. The project for phase 2 indicates much larger houses which would sell at £40,000 or £50,000 each, and it is believed locally, if permission is obtained, that they would be sold to Hull executives, typically, who would commute. It is a rather familiar situation where there is a virtuous old people's housing association going first and a bigger and altogether different project coming second.
How was this planning permission for phase 1 obtained? I turn again to the Ombudsman's report. He says that in submitting the matter for decision first to the development committee, as they call their planning committee on their council, and secondly to the full council, the officials did not refer to any planning proposals for the land prior to the planning brief formulation: that is to say, they did not refer to the proposal that it should remain in perpetuity as open space. Nor did they refer to the fact that there had been an application, a refusal, an appeal and a dismissal between 1968 and 1970. That is to say, the two earlier chapters of this sad history were not laid before the members of the planning authority when they decided to give permission now.
I continue now to the crux of the Ombudsman's
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report and I think it will be no surprise to the House to learn that the Ombudsman's opinion is this: that the attention of members of the council should have been drawn specifically to the decision on appeal which was given in 1970. He goes on to say:
"I think that the criticism can apply with equal or greater force to the events of 1976".
He also points out that the Royal Fine Art Commission sent two distinguished members to meet with the council and the objectors to the plan. He goes on:
"In my opinion, Members of the Council were entitled to see and to consider fully the advice of the Royal Fine Art Commission".
Then the conclusion of this report is as follows:
"No Council should seek to treat a planning application more favourably because they have some financial interest or face some adverse financial consequence. Indeed, the avoidance of any impropriety is not enough; public authorities must seek also to avoid any occasion for suspicion or the appearance of impropriety. Hence my concern that the advice to Members"—
of Beverley Council—
"placed undue weight upon the possible financial consequences of declining the application".
The members were told that if they turned this down there would be adverse financial consequences. The final paragraph of the Ombudsman's report stated:
"I consider that there has been maladministration by the Council. … Had that maladministration not occurred, the complainants view—
that is, those who complained to the Ombudsman—
"might have prevailed; or some acceptable middle ground might have been found. Therefore, in my opinion the Council's maladministration has caused injustice to the citizens of Beverley who have complained to me".
I think that that is a clear enough picture of what has happened, and that the House will agree that it was a fairly grave matter. The Ombudsman still has a shot in his locker. The Beverley District Council is required by law to let him have their observations on his first report from which I have quoted. He is then required by law to make a second and final report on the matter. Those two phases are still to be gone through and I cannot prejudge what either party will say.
One point to grasp about this whole story is that in Beverley there is no shortage of building land. It is a small town and is not rich. There is derelict industry and there are derelict sites within five minutes' walk of the land in question. If this plan is changed, nobody will be homeless. There is no question of hardship. There is only a question of convenience and, dare I say it at this stage, a certain stubbornness.
Who can do what? Let us consider the dramatis personae. What courses are open to them? The first, and most obvious, is that the St. Andrew's Street Co-operative, which apparently consists of small people living nearby who want new housing, or old people who want new housing and who have invested their savings and are backed, so far as the public knows, only by the Housing Corporation from Government funds, could change their plans and say to the planning authority "Look, there is such a fuss. Let's talk about building somewhere else."
Alternatively, the planning authority, although it has granted permission, could say to the applicant "Look, there is such a fuss. Let's sit down together

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and see if we can find a better solution." Or the local objectors, the people of Beverley, could seek an injunction against the development going ahead. If they were to do that, they would have a pretty good precedent in a case which recently happened at Hebden Bridge, which is not far away in Yorkshire, where local objectors to a development sought and obtained an injunction to prevent a development from going ahead. Because the Attorney-General was informed that they were rather poor and lacked what lawyers call "substance", the Attorney-General joined in the action and helped them to obtain their injunction. So there are other possible dramatis personae. They could win that injunction and that would change things, but that would mean another fight, and fights are undesirable.
Lastly, there is the great panjandrum himself, the big gun of Marsham Street, the Secretary of State for the Environment, who can annul a planning permission by an administrative act. If he does that, he will place a burden on the local authority of paying compensation to the intending developer. So that is a power which he very seldom uses. Its use in this case would not be unprecedented, however, but it is an extreme course which nobody would wish to pursue unless all others fail.
If none of these parties moves, a very great environmental outrage will be done—an outrage which the Ombudsman has already declared unjust—to the citizens of Beverley. The Secretary of State has his sledgehammer. The local objectors could get an injunction, but perhaps they do not have the money to go to court and maybe the Attorney-General will not help them this time. The council has given permission and has dug itself in and is not answering inquiries any more, though it could have second thoughts.
But it seems to me that the most likely and the most proper party to initiate the process of back-tracking and reconsideration is the developer. If the developer were to say, "OK, let's go somewhere else", everybody would unite to try to suit him. That would, I trust, include the town council; it would certainly include the Department of the Environment; it would include, in so far as relevant, the Church authorities; it would include all the objectors; it would include the Royal Fine Art Commission; it would include the local Civic Trust and everybody concerned. May we hope that they will heed this appeal; if not, I can only see the continuing dust of battle and, at the end of the day, a national disgrace in which one of the greatest churches of Europe will be deprived of one of the most extraordinary and unique settings for any church in Europe, and nobody will have gained housing thereby.
5.25 p.m.
Baroness Birk: My Lords, I am very grateful to the noble Lord, Lord Kennet, for raising what is an extremely important question and also for, as one expects from him, putting it in such a succinct, clear and comprehensive way. Very often—as he and I both know, having at different times served as Ministers in the area of the environment and housing—there is a tension and pull between the needs of housing in a local authority and the protection of the environment and the preservation of its valuable conservation areas and
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buildings. The responsibility of local authorities in this area is enormous, and even more so today because after some very dark periods around the 1960s and earlier, when whole areas of our towns and cities were bulldozed, there is an increasing awareness, certainly in central Government and on the part of people in local communities, whether they are acting as individuals or as members of local amenity societies, of the need to safeguard and preserve their own heritage.
When I was a Minister at the DoE, I tried, as much as possible, to encourage the setting up of conservation advisory committees which were meant to help to deal with these problems. The committees were composed of members of local amenity societies, who were then able to put a case directly and be kept in touch with events. There are some of these working in the country and, in many cases, they are working extremely well. Unfortunately, there are still not sufficient of them.
During the period 1974–79, I was the Minister responsible at the DoE for conservation, and large sums were given to Beverley, through the Historic Buildings Council, for its town schemes, because, as noble Lords know, Beverley is an outstanding conservation area. One fact that strikes me as not only odd but economically unsound is that, when sums such as these have been given to an area, and given on the basis of its conservation aspects and advantages, something is done, or is about to be done, which will, in many ways, cancel out the advantages that it has received.
As the noble Lord, Lord Kennet, said—and I think that it was due to him at that time—the permission to build houses in 1969–70 was turned down by the department. There was no further outline planning application until 1980, although, as the noble Lord also pointed out, a plan was circulated in 1976 which had been prepared by the Royal Fine Art Commission and the amenity societies. On that occasion, I think that they effected a small revision to their original plans. In 1977 a draft brief was approved by the local authority. Then in 1980 there was this outline planning application. As the noble Lord, Lord Kennet, pointed out, this went to the local ombudsman.
I hope noble Lords will bear with me if I repeat what the noble Lord, Lord Kennet, said about the findings of the local ombudsman. I do so because I think it is of enormous importance, for the Commission for Local Administration was set up in order to deal with cases of this kind, and other kinds, where there is a distinct dispute between the local authority and either groups of people or individuals who feel very strongly that something is being done in their area which is contrary to the public good. The local Ombudsman said that there should have been more time for consultation. Although I believe he did not specifically say that the proposals should have been advertised, my impression from reading what went on and from talking to some of the people involved is that there was not sufficient publicity. There was no form of advertising so that people would know what was being proposed in their area. However right the local authority may have felt about what they were doing—and obviously I concede they felt they were doing the right thing for their area—nevertheless they had a duty to make sure that people knew what was intended.

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I repeat, because this is of tremendous importance, the paragraph in the local ombudsman's report where he says:
"No council should seek to treat a planning application more favourably because they have some financial interest or face some adverse financial consequence".
Then he makes the point about the avoidance of any impropriety not being enough.
"Public authorities must seek also to avoid any occasion for suspicion. The avoidance of impropriety is extremely important".
In other words, the local Ombudsman is saying that it is the duty of an authority to bend backwards so that it does not appear to be doing something which could be construed as either unjust or a form of maladministration. The local Ombudsman also agreed with the allegation of undue haste and also with the allegation that the council's maladministration had caused injustice to the citizens of Beverley who had complained to him. To be fair, one also has to say that in his report the local Ombudsman said that he thought the case may have been overstated; therefore, he had to look at it as an objective outsider trying to balance the different points which had been raised and the different interests concerned. However, his conclusions were quite specific:
"I consider there has been maladministration by the council even though the complainants may have presented an over-elaborate case".
Because no building had yet been erected, one would have hoped that after that the council would at least have had second thoughts. Therefore I find it very disturbing that at the meeting of the development committee on the 7th of this month it was decided that no action should be taken. The leader of the council in supporting this action said that some of the objectors had not been alert enough to make their objections known at the appropriate time:
"They cannot expect us to go all the way back to give them a chance to make the representation they should have made years ago".
Beverley Minster, as we have just been reminded, has been standing since the 13th century. It seems to me to be extremely odd to use the argument that one cannot go back and rethink what has been decided. Another councillor who was obviously concerned about this matter pointed out that any second report prepared by the local Ombudsman—and obviously there will be a second report—was likely to be much more critical. He believed that by ignoring the report the council was compounding the fault for which it had been criticised. He said:
"The full council should be recommended to revoke the planning permission, with a rider that the co-operative be indemnified for certain losses".
Unfortunately, however, his proposal found little support.
The implications go rather wider than Beverley itself. There are serious implications for our heritage and also extremely serious implications for local government. Treating the local Ombudsman's report in this way means that the rights of citizens are affected and that the resulting benefit from creating the Commission for Local Administration is eroded. In its most recent report, the Commission states that at
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31st March 1980 there were 132 outstanding reports upon which authorities were considering what action to take in the light of local Ombudsman findings. These referred to maladministration. By 31st March 1981, action satisfactory to the local Ombudsman had been notified in 85 of those cases. In 13 cases, although second reports had been issued, it was clear that there would be no satisfactory outcome. But there are 34 remaining cases. Second reports had been issued on three of them but the outcome was still awaited on 31st March 1981, when this report was produced.
As the noble Lord, Lord Kennet, has pointed out, several options are now open both to the local authority and to the Government. The first, and I should have thought the most commendable, is for these matters to be sorted out amicably. The number of dwellings is not enormous. Taking together the flats and the houses, it is in the region of 100. They are being kept to two-storey buildings. It should be possible to come to an arrangement by which either some dwellings are put there but they do not impede in any way the view of the Minister or, as has been suggested, they should be put in a different place.
It seems to me that at this stage there would probably be some advantage in having informal discussions between the Minister and the local authority. One wants to solve these problems on a friendly basis and get the result that is best all round. One does not want to exacerbate feelings, which are pretty strong at the moment, between local authorities and central Government. That is not the way one would prefer to have things done. As I understand it, Ministers, except through correspondence with mainly the objectors, have not come fully into the picture.
One option is for the Government to take no action at all. I think that would be a mistake, as we are now getting towards the second report from the Ombudsman. The Government have other options open to them. Detailed planning permission has not yet been approved, so therefore there is some time, but not all that amount of time, and, going by past experience, I should have thought it was more than highly probable that the Housing Corporation would ask for a grant from the DoE in order to help with this building. I think that is something that the department must. bear in mind and not just give a grant automatically in a case like this where such deep local feelings have been aroused and where in fact on every basis there is a very good case for saying that we must find some other means of preserving both the proper look and setting of the Minster as well as building houses.
Finally, as the noble Lord, Lord Kennet, pointed out, there is of course the extreme measure of revocation of the planning permission. As he rightly said, that is not often used. It was used not so long ago, because, when I was at the department and Mr. Peter Shore was the Secretary of State, we were, as a last resort, about to revoke the planning permission on the Lyceum in Liverpool. Then the election came, and I am glad that the present Secretary of State followed that through and in fact revoked the planning permission.
It is true that this would involve the local authority in costs, but the local authority does not have to allow things to get to that stage because it seems to me that this is a case where there is still a great deal of flexi-

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bility if the local authority would recognise the situation as it is and, however some of the members may feel about it, would recognise that the views of its own citizens—of the people who elect them—are very divided about this. There are strong objections, many of which have now been supported by the local Ombudsman.
The increasing appreciation of the desperate need to safeguard our heritage will take a tremendous knock if the plans as they are now conceived by the local authority go ahead unchanged. It seems to me that it is quite unnecessary for this to happen. It is unnecessary for the authority to get itself in to the position where the Secretary of State for the Environment comes, however reluctantly, to the conclusion that, because not only of the local interest but of the national importance of the Minster, he has no alternative but to revoke the planning permission. With local authorities in such dire financial straits today I quite realise that they would not want to be faced with that type of compensation. I know that the matter is unresolved at the moment but I hope when the Minister replies we shall hear that the department is going to take some action on one or other of the options that I have suggested. There is not a great deal of time, but there is still time for action to be taken and for this very difficult problem to be resolved so that all sides are satisfied.
5.43 p.m.
Lord Gore-Booth: My Lords, your Lordships may be a little surprised to find me standing at this moment because I do not have any known connection with this case, but actually I was born in Doncaster and I feel that I have a very strong, direct, local interest in a right judgment finally being made on this particular argument. Perhaps before saying more on that I may say that I understand how the different interests get extremely worked up about this and I understand why people want to commit what I myself believe to be an outrage on this town. Having been born very near to that part of the world and having travelled through it and having been in it many times, I have a strong personal feeling about it.
It is an attractive town in its way; it may not be as beautiful as it was, but to put it very simply it is still important on account of its age and its character and important also in what is to be the future of these difficult cases, where people are perfectly entitled to argue on any basis they choose in order to try to get what they believe to be the best.
I have a great personal interest in this case because where I lived in Yorkshire until over the age of 20 this town was regarded (and quite rightly so) as a very important—not exactly ancient monument but ancient feature. It was seen as an historic and important town. In those days when the town had already got that reputation there would have been no question of its, for some reason or another, coming to an end and an attractive and important small feature of our landscape and our culture being abolished. I think the people who lived there at that time when I was in a neighbouring town would have been truly and rightly horrified that something should be done which did not just change the occupations of the people who lived there but really changed a small though not unimportant
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part of the Yorkshire character and the Yorkshire environment.
So I am enormously grateful for the opportunity to return here today in order to put in a word from Yorkshire against this particular proposal. I know that other more distinguished Yorkshiremen have also taken this line and I do not think it is really necessary for me to try to repeat the history which has been so fluently described by other Members who are more eloquent and important than I am. But, coming from that area, I strongly urge your Lordships to take the broad view—and indeed the modern view—that when we have these assets we do not just pull them down or alter them, which could happen if the present ideas were to go ahead.
So it is simply from the heart that I appeal to your Lordships' House to take the other way and to preserve what is there already and should be there for hundreds of years to come.
5.49 p.m.
Lord Holderness: My Lords, I share the gratitude which has already been expressed to the noble Lord, Lord Kennet, for bringing to your Lordships' House a subject which, I entirely agree with him, is of enormous importance, and I share the gratitude which has also been expressed to him for the powerful case which he has presented for action in relation to the plans for development which are being considered by us this evening.
I am pleased also to follow the noble Lord, Lord Gore-Booth, because my interest in this whole matter, like his, is very largely personal. For all my life I have lived within a few miles of Beverley, and during the large number of years when I represented a constituency beyond Beverley I suppose that on average I passed that great Minster 50 or 60 times each year, and so I know its aspect very well. Apart from the comparable view of the Minster from a distance from the North West, the most precious closer aspect is the one we are considering tonight, the view from the South, which the noble Lord, Lord Kennet, has so richly and accurately described.
All democrats, whether social or otherwise, find some force in the argument that decisions about development, for instance that of Beverley, should be taken by representatives freely elected by the people of Beverley, to whom I prefer not to refer by the popular but ugly name of Beverlonians. I understand that this essential principle of democracy is the basis so far of the reluctance of my right honourable friend the Secretary of State to interfere with the council's decision, but as both noble Lords and the noble Baroness made clear, this decision is out of the ordinary for a whole variety of reasons, and in view of the noble Lord's comprehensive examination at the beginning of this debate, I shall mention only three. The first is the national standing of the Minster and, from conversations I have had, its international standing also. The Minster is of interest and importance to thousands of people living far beyond the confines of Beverley itself. This was proved by the enthusiasm for the restoration appeal with which my noble friend Lord Middleton was closely connected. That is the first reason why I think that this is no ordinary council decision.

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The second is the clear commitment which the noble Lord mentioned, made by the present council's predecessor, particularly in the letter to which the noble Lord referred from Mr. Roy Gregory dated 16th December 1974. The only thing I should like to add to the quotation from that letter which he gave was that after mentioning his council's determination to acquire the site for open space purposes, Mr. Gregory then underlined that in the following paragraph when he mentioned,
"the restricted nature of the development which would be permitted".
Lord Kennet: My Lords, I believe that the noble Lord stated that the letter was dated 1954 when it was, of course, dated 1974.
Lord Holderness: My Lords, if I said 1954, then I apologise, because I do not always speak as clearly as I ought to speak. That clear commitment is my second reason, and, in view of the particular question which the noble Lord is now asking the Government, it is one of immense importance in our whole consideration of this matter. But to my mind, and perhaps also in the mind of the noble Lord, Lord Kennet, the most important reason is the recent report of the local Ombudsman. If such a report is to be totally ignored, one begins to fail to see the point of this expensive and elaborate procedure set up by Parliament. As the noble Baroness, Lady Birk, rightly said, this was the whole point of the procedure. In my own experience Government departments, to give them their due credit, used to pay close attention to critical reports from the Parliamentary Commissioner and they would have been in deep parliamentary trouble if they had failed to pay such reports close attention. But if the report which we are discussing tonight is to be set so lightly aside I cannot see it other than fatally weakening the authority of the Ombudsman on future occasions.
The noble Lord, Lord Kennet, pointed to some of the conclusions which the Ombudsman had reached. Apart from pointing to deficiencies of maladministration, the Ombudsman in a recent letter suggested a gentle, constructive and civilised approach which he himself believed could be achieved with general goodwill, and from which he also thought other benefits would flow. I am deeply distressed by the council's rejection of this recommendation on the grounds, if one councillor was correctly reported, that
"the Ombudsman has come to the wrong decision. I think we are right".
That statement at least has the merit of simplicity, but it is a direct contradiction of existing procedure, and apart from the present issue of Beverley I do not think we can allow that reply to go unchallenged. I, myself, would be happier if the borough council were persuaded to examine and achieve the objective out-lined in the Ombudsman's letter dated 1st October, which seems to me to be a civilised and constructive basis for a solution to the problem, however inconvenient this achievement would be for the council and its ratepayers. I do not believe it would be inconvenient for the co-operative itself or its future tenants because Mr. Cook, the Ombudsman, specific-
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ally points out in his letter that his suggestion would cause no loss in the proposed new housing.
If the co-operative does not take the action which the noble Lord suggested that it should take, and if the council cannot be persuaded in this direction, and subject to further opinions in the second report from the Ombudsman, I myself agree with noble Lords and with the noble Baroness and see no alternative in the very wide implications of this so-called decision other than intervention by my right honourable friend the Secretary of State. I hope that my noble friend Lord Avon can promise that his right honourable friend not only will take a close interest but will be prepared actively to intervene to make sure that the voice of the people's protector, the Ombudsman, will finally prevail.
Lord Moyne: My Lords, I hesitate to say even a few words on this subject never yet having had the good fortune to go to Beverley, but I should like to lend my support to what has so excellently been said by the previous speakers. I was shocked to see that one of the councillors argued against the Ombudsman that he was not infallible. My Lords, which of us is infallible? At least by the very nature of his office the Ombudsman is unprejudiced and impartial; I believe that heed should be given to his views.
5.59 p.m.
Lord Seebohm: My Lords, I should like to make a very brief intervention. My excuse is that I lived in Yorkshire for 20 years. For the last six of those years I lived in the East Riding and my two great loves were York Minster and Beverley Minster. I have a feeling that, as is so clearly marked on the map of the district plan which I hold in my hand, on the very site we are talking about the letters "POS" standing for Public Open Space have some considerable significance in this argument. It may well have been that the original vendor believed that there was no chance that this site would be developed and that he was really contributing to the permanent open space around the Minster.
It seems to me that there may not be an irregularity or maladministration, but, if I may use the phrase, I think there is some odour at least on this matter. My own feeling about Beverley Minster, apart from the magnificence of the building, is its site, which is away from the town; it is in a wonderful country area with green fields all round it. It seems to me this was part of the whole object of why it was built there. It is not built in the middle of the city like York Minster. I feel, therefore, this is a case where some action really should be taken by Her Majesty's Government. I would say that, if we can do it by voluntary methods, all the better; but in this matter I am not a "wet".
6.2 p.m.
The Earl of Avon: My Lords, let me say at the outset that the Government recognise and share the special place that Beverley Minster has in the feelings of many people, and we appreciate very much this opportunity to express our view in answer to the Question put by the noble Lord, Lord Kennet. I agreed with virtually all he said, except his early remarks when he, I thought, rather apologised that it was a Minster and not a cathedral. Personally, perhaps because I spent much

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time in York Minster in my youth, I have always preferred the name Minster to cathedral and thought it gave an extra feeling. However, apart from that, I think I agreed with most of what the noble Lord said.
During the period of events which inspired the noble Lord's Question there has at no time been any threat to the fabric or substance or accessibility of this splendid building. The effect of the proposed development would be on a long distance view, from a particular and fairly narrow angle, of the lower courses of part of the southern facade. This, I recognise, is still a highly emotive and subjective issue, but I think it is important to keep it in its proper perspective. It should also be borne in mind—and the noble Baroness, Lady Birk, touched on this—that on the other side of the balance is the provision of homes for people, some of whom have lived in the shadow of the Minster all their lives.
I should like just to put the background in a chronological sequence, which will in some respects cover the ground covered by the noble Lord, Lord Kennet, and the noble Baroness, Lady Birk, but I think it would be helpful for the record. The land on which development is now proposed was formerly the site of a school which, together with another small parcel of land, was acquired by the council in 1975 for £4,000, ostensibly for open space purposes. I think at one stage the noble Lord, Lord Kennet, mentioned a figure of £400,000, but I know he actually meant £4,000. The site is within the Beverley conservation area. The price reflected the anticipated difficulty in obtaining planning permission for profitable development so close to the Minster.
To the east of the school was an area of poor housing which the council originally proposed to acquire and demolish as unfit. At some stage following their acquisition of the school site the council resolved to change the allocation of the land to residential. I should say at once, in the light of some of the criticism of the council's handling of the matter, that a change of land allocation of this nature has in itself no sinister implications.
While the local development plan is a material consideration which must be taken into account when a planning application is being considered, it is by no means sacrosanct, and it is open to a council to make changes or to override its provisions. Obviously, they should have sound reasons and should give an opportunity for and take into account expressions of public opinion on anything but the most minor changes. But it must be accepted that policies do change. The council subsequently prepared a draft development brief in respect of land south of the Minster which provided for residential development in two phases and the provision of a tourist car park. The school site and the northern section of the existing residential areas of what is known as St. Andrew Street and Lurk Lane comprised Phase I. Phase II comprised mainly open land and the southern part of St. Andrew Street.
The draft brief was not advertised formally, but the proposals were said to be well known. It was circulated to various interested bodies including the Royal Fine Art Commission and Beverley Conservation Area Advisory Committee. The latter committee is made up of a number of private individuals and representa-
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tives of local associations and societies. Arising from the invitations to comment on the draft brief an alternative suggestion for the development of Phase I was put forward by two of the consultees and subsequently accepted by the council. This provided for the rehabilitation of existing properties to the east instead of total clearance, and some new development, which together would provide a balanced community and allow existing residents to remain in familiar surroundings. The residents formed a co-operative and engaged the York University Design Team to carry out a feasibility study into proposals to revive the area with a combination of improvement and new development.
The planning brief for the area was formally approved in 1977, having taken into account representations received on the draft. The amended brief showed a mixture of new development and improvement, with a car park to be provided behind the new houses in Phase I rather than at the front, as envisaged in the draft. The brief acknowledged the sensitivity of the site and the need to take into account the long distance views of the Minster in designing the development for both phases. The council regarded the formally adopted brief as amending the development plan provisions. Despite suggestions to the contrary, there is evidence that the development brief proposals were not particularly controversial at the time.
The council subsequently sold the school site with various smaller sites in the area to a housing association at a price which reflected residential development value, which Lord Kennet mentioned. An outline application for planning permission for Phase I was submitted by the St. Andrew St. Development Co-operative Limited and approved by Beverley Council on 23rd October 1980, just under a year ago.
The application aroused considerable opposition both locally and nationally because of the effect of development on the view of the south facade of Beverley Minster. I must stress here that the details have not yet been approved, which incidentally prevents me from commenting on the housing corporation grant. The site comprising Phase II of the development is at present the subject of a planning application to Beverley Borough Council. A decision has been deferred on several occasions because the council are not satisfied on certain aspects of the proposals.
A compulsory purchase order in respect of Nos. 58, 68 and 45 St. Andrew Street is at present before the Secretary of State for confirmation. These properties are said to be unfit for human habitation and are required along with other properties in St. Andrew Street owned by the Council to facilitate development of Phase II, which is to be undertaken by a private developer. The department are unable to progress the CPO because the planning permission to which it relates, that is for Phase II, has not yet been granted.
Since early last year the Department of the Environment has received many letters urging the Secretary of State to call in the outline application for development of Phase I by the housing association. These letters were from local residents, amenity societies and eminent personalities, Members of the other place, and last, but of course not least, Members of this House. Most objectors are totally opposed to any new development which would obscure any part

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of the south face of the Minster. Other objections relate to the close proximity of the proposed new houses to the Minster and would probably be satisfied by the adoption of a compromise scheme.
The application was not one which Beverley Borough Council considered should be referred to the department, and we have consistently taken the view, as emphasised by Lord Holderness, that the decision should be taken by the democratically elected members of the council. As explained, the proposals for this site and land to the south were the subject of a development brief amended to take account of representations at draft stage. The housing association scheme has been under discussion with the council over a long period. The council were clearly aware of the sensitivity of the site and of the immense asset to the town which the Minster represents.
As housing authority they were also in the best position to assess the housing needs and the availability of other suitable sites. Intervention in this case would have been inconsistent with the department's policy of non-intervention in local planning decisions. Because of sustained pressure on the department to intervene even after the outline permission had been granted, the issue was considered by the Secretary of State himself, together with my noble friends Lord Bellwin and Lord Skelmersdale. It was concluded that there was no way in which the department could effectively intervene short of the Secretary of State himself making an order to revoke the outline permission, which is almost without precedent, though the noble Baroness produced the one recent precedent.
Suggestions have been put forward to resite the new build element of the housing association scheme on land allocated for a tourist car park which it is understood is not now required. It must be stressed that any proposal for changes of this nature is a matter for the applicant in the first instance. It is understood that there may be difficulty in accommodating the number of new dwellings required on the car park site. The other option is to revoke the outline permission, a course of action which, as we have heard, the borough council are clearly unwilling to take and which the Secretary of State would be reluctant to impose on them by use of his default powers.
I turn now briefly to the case of the local Ombudsman, to which all speakers have referred. The complainants alleged that there was inadequate consultation by the council, and made specific allegations. The Ombudsman concluded that the allegations relating to the council's consultations were not found to be substantiated. Although, ideally, the development brief should have been advertised and additional bodies consulted, in practice the proposals were well-known locally. I have already mentioned who the consultees were. Arising from the consultations, an alternative suggestion for development of the area was accepted by the council. The amended scheme provided for rehabilitation of properties to the east instead of total clearance and the provision of a car park behind the proposed new houses rather than at the front of the site. The amended brief was approved by the council and this was regarded as amending the proposals shown in the development plan.
The Ombudsman is satisfied that members of the
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council in considering the planning application were fully aware of the scale and substance of the opposition, that there was no evidence of intentional misrepresentation and that any reference to support for the scheme by the RIBA was inadvertent. Referring to the fact that the history of the site was not fully reported to members, he considers that members' attention should have been drawn specifically to the Minister's decison on appeal in 1970 and furthermore that this should have been taken into account in the preparation of the brief in 1976.
He states that to argue that the appeal site was marginally to the south of the proposed development is to miss the significant and relevant ministerial statement in the decision letter that:
"the local planning authority's concept of a wedge of open space merging into country on this side of the town to provide a setting with a long range vista of the fine south front of the Minster has much to commend it and ought not to be lightly set aside for the sake of short term advantage in providing further land for building at Beverley".
The complainants believe that the grant of planning permission for the housing association development precludes the achievement of these objectives.
Referring to the allegation, that there was undue haste in determining the application, the Ombudsman concludes that a decision could have been delayed for a short period to allow members to consider in detail the advice of the Royal Fine Art Commission following separate meetings of their members with council officers and objectors. In this connection, the chief executive told members that the commission had suggested a compromise but, in considering the feasibility of asking the housing association to redesign their scheme along lines suggested by the commission, the report to members questioned whether this would be acceptable to the housing association as, quite apart from the inevitable delay, they did not know whether the council would even then approve it; there was also a likelihood that a new scheme would not be funded by the Housing Corporation, and they did not know what compensation they might expect from the council.
The report to members recommended that if the council were satisfied, first, that the application was in accordance with the structure plan and the development brief; secondly, that it complied with the policies for the conservation area and, thirdly, that, having taken into account the representations, the development was satisfactory, the application should be approved. It was pointed out to members that the fact that some other development might be better is not, on its own, a planning reason for refusal. The council, on this advice, approved the application.
Regarding allegations on the sale of land by the council and their moral obligation to allow development—after formal approval of the development brief the land was sold by the council to a housing association at residential development value, subject to a covenant to develop the land on the basis of the development brief—the Ombudsman accepts that public authorities are entitled to sell land at a profit, but found that officers' advice to members placed undue weight on the possible financial consequences of declining to approve the application—a point which both the noble Lord, Lord Kennet, and the noble Baroness, Lady Birk, mentioned.
In summing up, the Ombudsman emphasises the need

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for councils to seek at all times to avoid any suggestion of impropriety in reconciling their role as planning authority and landowner. In so saying, he does not question the integrity of the officers who were advising the council. Although conceding that objectors may have over-elaborated their case he considered that, had the council acted differently, the complainants' view might have prevailed or some acceptable middle ground might have been found.
The fact that the local Ombudsman has criticised some aspects of the way in which the local authority have handled the development proposals is not a reason for intervention by the Secretary of State. In cases where it is found that injustice has been caused by maladministration the council must consider the Ombudsman's report and tell him what action they propose to take. Where a council's response does not satisfy the Ombudsman he may then issue a further report saying what should be done although, as noble Lords are now aware, even then he cannot compel the council to act if they do not decide to do so.
Having considered the Ombudsman's report, which was dated 5th September this year, it appears that there are three options open to the council. I stress that these are options which are open purely to the local council. They can revoke the outline permission and compensate the applicant; they can investigate with the applicant the possibility of changing the layout to leave an open space between the Minister and the new development; or they can do nothing.
I personally do not have the advance knowledge of the noble Baroness, Lady Birk, or of my noble friend Lord Holderness of what has been going on in the committees at Beverley. However, I must say that I was distressed to hear what has been reported. I might add that there is not a specific time scale by which they have to respond; it is just a reasonable period. If what has been reported is correct, it is therefore open to the Ombudsman to issue a further report saying what should be done and I am sure that the House will understand that it would be premature for the department to take any action until the Ombudsman's investigation is closed.
The short debate this evening will have provoked interest and illustrated to Beverley the concern felt by many people from all parts of the country, and particularly in the debate this evening from their local Yorkshireman. The suggestions made and the ideas put forward and the stimulating discussion which we have had will be carefully studied by my department. I shall certainly bring the debate to the attention of my right honourable friend the Secretary of State, who of course at the moment is on holiday at Blackpool. I am sure, equally, and perhaps even more important, that it will be studied very carefully by the people of Beverley. I hope that what I have said will have underlined to those present the Department of the Environment's close and detailed interest in the subject, and it is an interest I can assure the House which will continue until the matter is fully resolved. I am grateful to all those who have spoken for their helpful and constructive contributions.
Lord Kennet: My Lords, before the noble Earl sits down, will he comment on one matter? He has quoted quite extensively from the Ombudsman's
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report. However, the one piece which he did not quote was the last paragraph, where the Ombudsman concludes that the conduct of the Beverley District Council constitutes mismanagement and that mismanagement has caused injustice to the citizens of Beverley, or to some of them. Could he confirm that that piece is in his copy of the report as it is in mine?
The Earl of Avon: My Lords, I was trying in some way to paraphrase and not to repeat what the noble Lord has said. Yes, I do confirm that.

Cumbria Bill [H.L.]
Report from the Committee, That the Standing Orders not complied with in respect of the Petition for additional provision in the Cumbria Bill [H.L.] ought to be dispensed with; read, and agreed to.
Matrimonial Homes (Family Protection) (Scotland) Bill [H.L.]
Report from the Committee of the reason to be offered to the Commons for disagreeing to the Commons amendment, made and agreed to; Bill returned to the Commons with the reason and the amendment.