Lords Sitting of 22 February 1982

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Hereford.

Poland: Latest Situation
Lord Molloy: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will make a statement on the latest situation in Poland.
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Lord Trefgarne): My Lords, Her Majesty's Government deplore the continuing repression in Poland. The recent arrest of several thousand more people testifies to the military Government's failure to live up to their undertakings to return to the path of renewal and reform. Meanwhile, Soviet interference continues, for example through the jamming of BBC broadcasts. The Government's measures in response to this situation were announced on 5th February.
Lord Molloy: My Lords, while thanking the Minister for that reply, may I ask whether he will make sure that, notwithstanding the activities of the Soviet Government in trying to drown out the truth, we will continue our support for the independent trade union Solidarity, which speaks for the people of Poland? May I further ask him to convey to his right honourable friend the Foreign Secretary that, despite attacks by the Right-wing press of this country and the vulgar and abominable expressions used by the United States Secretary of State, his cold courage and persistent endeavour when dealing with the world's crisis makes him one of the few Foreign Secretaries who realises that a margin of error could end in disaster for all mankind, and that his endeavours receive the applause of all sensible people throughout the world?
Lord Trefgarne: My Lords, I shall certainly convey to my noble friend the kind words of the noble Lord. As to the first part of this supplementary, we certainly support and encourage the Polish people in their wish to exercise their undoubted right to self-determination.
Lord Gladwyn: My Lords, has the noble Lord noticed that according to the press this morning almost the entire population of Poland seems to think there will be a revolution in the spring and that the West will then somehow come to their assistance against whoever it may be, the Government or the Russians? Is it not therefore high time we had a debate on the subject to find out what in fact, in face of this grim situation, the policy of the Government is likely to be?
Lord Trefgarne: The question of a debate is one for the usual channels, my Lords, who I understand are in touch on this matter. As to the first part of the noble Lord's supplementary, I have given up predicting what is going to happen in Poland.
Lord Mowbray and Stourton: My Lords, seeing that, according to the press, most of the aid coming from the western world to the Polish Government is not necessarily getting through to the people for whom it is intended—that is, the people who arc in need—may I ask whether Her Majesty's Government and the EEC are taking note of what is being recommended, namely, that the Church in Poland is probably one of the only sources able to distribute without Government favour?
Lord Trefgarne: My Lords, I certainly agree that it is important that the humanitarian aid which we are providing through the European Community should reach the right people. We believe that on the whole it is, and we have received a number of assurances to that effect.
Viscount St. Davids: My Lords, would the Minister agree that the sharp edge of the Polish difficulty, which should be put to General Jaruzelski if he has not already got the point, is that you can do anything with a bayonet except sit on it?
Lord Trefgarne: My Lords, I am not sure whether General Jaruzelski reads the Hansard of your Lordships' House, but if he does I am certain he will take note of what the noble Viscount has said.
Lord Jenkins of Putney: My Lords, has the Minister read the interesting interview with the Polish Deputy Prime Minister in The Times this morning? Would he draw it to the attention of his noble friend, and possibly to that of the American Secretary of State?
Lord Trefgarne: I have not yet had a chance to read the article to which the noble Lord refers, my Lords, but I shall certainly do so.
Lord Leatherland: My Lords, in view of the fact that Poland has a reputation for sparking off wars, may I ask whether he will keep out of it?
Lord Trefgarne: My Lords, I am not quite sure how the noble Lord thinks we are going to end up at war in this matter, but our general views about the situation have been made well known.
Lord Molloy: My Lords, would the Minister agree that we should make it clear to all those who are oppressing the people of Poland that in our country millions of ordinary people over the past 80 years owe the raising of their standard of living to the British trade union movement, and that that must be the permitted endeavour of the Polish rulers, whomsoever they may be, towards their trade unions?
Lord Trefgarne: My Lords, the Polish Government have said they want to resume the dialogue with the trade union Solidarity and we look forward to the day when they will do that.

Rates: London Boroughs
2.41 p.m.
Lord Boyd-Carpenter: 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 take steps to compel those London boroughs which have retained money paid to them by ratepayers in response to a supplementary rate demand which has been ruled to be invalid by this House to repay this money forthwith with interest.
The Parliamentary Under-Secretary of State, Department of the Environment (Lord Bellwin): My Lords, as I told the House in response to a Question from my noble friend Lord Balfour of Inchrye on 9th February, I understand that all London boroughs are taking the advice of the London Boroughs Association to give people who have paid the supplementary rate either a credit against next year's rate or, if they ask for it, a refund. As to the payment of interest, it is for individual boroughs to decide what to do. Some appear to be paying it; others not. However, as I told the House on 9th February, we are considering whether the law needs amending in the light of this case.
Lord Boyd-Carpenter: My Lords, is it not wholly wrong in principle for a public body that has obtained money from the citizen by aid of a demand which subsequently has been shown to be invalid in law to retain it? Does my noble friend appreciate that it is precisely the people who need this money back the most—the widow, the pensioner and so on—who do not read the law reports and therefore probably do not ask for it back?
Lord Bellwin: My Lords, obviously I have much sympathy with both points my noble friend makes. On the first, that is why I say we are looking to see whether the law needs to be changed in this matter; this case has introduced something new and, as I am sure my noble friend will appreciate, one must be very careful before proceeding, and I confirm that we are looking at it very carefully. On his second point—do all those people who need to know, really know? —it is a fair point to make, but I am not sure how one can go further in publicising the position than has been done. Nevertheless, he makes a very valid point which only highlights the need for some clarification of the matter as regards the future.
Lord Sandford: My Lords, may I ask my noble friend two or three further questions arising from this matter? Does not this situation indicate that we must move to a position where each local authority sends the bill to the ratepayers for what the authority itself needs? Is it not the case that in this instance it has been the illegal action of the Greater London Council that has caused the problem and nothing that has been done by the London boroughs?
Has my noble friend seen the article, under the heading Commercial Property, on page 19 of The Times today, in which the very damaging effects of a so-called
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20 per cent. rise in the Westminster rate are set out? Is my noble friend aware that the so-called 20 per cent. rise is caused by an increase in the GLC demand of 86 per cent., an increase in the ILEA demand of 15 per cent., and an increase in the demand of the Home Office, on behalf of the Metropolitan Police, of 4 per cent., whereas Westminster City Council itself has reduced its rate by 4 per cent.?
Lord Bellwin: My Lords, my noble friend raises the whole matter of what we call separate billing, which in the case of the water authorities was taken on within the last couple of years. I know that there is much sympathy for this idea, but the problem lies in the expense of carrying it out, offset against the benefit of the clear accountability that would then be shown if the rates were separately levied. I have very much sympathy with the point that my noble friend is making, but how far in practical terms I should want to go down that road I am not sure.
Viscount Hanworth: My Lords, will the noble Lord bear in mind that if one does not pay one's rates, one is soon taken to court?—the period is very brief indeed. Therefore, it is only fair that interest should be paid on what is now becoming quite a long-standing debt.
Lord Bellwin: My Lords, I understand that there are a number of boroughs who are paying interest. That is a decision that they have made following the recommendation to them by the London Boroughs Association, which has very much left it for them to deal with individually. The question that my noble friend originally posed was whether or not payment of interest ought to be obligatory, and, as I have said, that is something we are looking at because this is a new situation.
Lord Balfour of Inchrye: My Lords, will the Minister agree that those ratepayers who paid promptly are put at a financial disadvantage as compared with those who did not pay? If that be the case, is it much of an inducement to ratepayers in general to pay their rates promptly?
Lord Bellwin: Well, my Lords, with regard to the first point, yes, I do agree that those who pay promptly are at a disadvantage; of course I would agree. Again, as with the point put by my noble friend Lord Sandford, there is much merit in the argument about the situation being an inducement not to pay promptly. As I have said, this is a new situation, and I hope that it will not again arise in this particular way.
Lord Molloy: My Lords, does not the noble Lord agree that it is not beyond the bounds of peradventure that the advice given by the London Boroughs Association to its constituent members could be as illegal as the advice that the GLC received from its legal advisers? What is really required is a clearing up of the law so that this kind of awful situation in which local government finds itself cannot occur again.
Lord Bellwin: My Lords, I should hardly think that the advice given, which is concerned really with how the boroughs should act, rather than with what action

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they should initiate, is in the same category as the other advice mentioned. However, I take the second part of the noble Lord's supplementary question—yes, I think there is need for clarification.
Lord Balfour of Inchrye: My Lords, may I inflict upon the Minister just one further brief question with regard to the matter of interest? Is it really beyond the powers of local bureaucracy to attach a credit note against the next rate demand, stating how much had previously been paid, the period involved, and the interest due on the payment?
Lord Bellwin: My Lords, my noble friend makes a very interesting suggestion. Certainly that is not beyond the powers of local authorities, and I am sure that note will be taken of what he has said.
Viscount St. Davids: My Lords, while stating that I refuse to pay the extra rate and have not paid it, may I ask the Minister whether he will listen to the plea of the noble Lord, in regard to those firms and, in particular, as I know, one or two schools which had to pay a supplementary rate of a very large amount—thousands of pounds—which they are now getting back, but without interest?
Lord Bellwin: My Lords, I do not think that I can add anything to what I have said on this subject. The noble Viscount simply confirms that there can be hardship caused in this situation, and I accept that.

Senegambia: Relationship with the Commonwealth
2.48 p.m.
Lord Gridley: My Lords, in the absence of my noble friend Lady Vickers, who is unfortunately in hospital, and at her request, I beg leave to ask the Question which stands in her name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how the Gambia's relationship to the Commonwealth is affected by the fact that Senegal and the Gambia have decided to become one political entity as Senegambia.
Lord Trefgarne: My Lords, the agreement establishing the confederation of Senegambia states clearly that each country is to maintain its independence and sovereignty. President Jawara has said that the confederation will not compromise any of the agreements which link the Gambia to Great Britain and the rest of the Commonwealth.
Lord Gridley: My Lords, in thanking my noble friend the Minister for that Answer, may I ask whether he is aware of the reply given by my noble friend the Foreign Secretary to a Question by the noble Lord, Lord Brockway, on 26th November, in which my noble friend the Foreign Secretary stressed the importance of the stability of the area, particularly to the Commonwealth? Is he further aware that since that Answer was given the directors of the International Monetary Fund have refused to continue the three-
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year financial stability, in sums of money they were giving to that area, because of the instability which they think has now arisen from the confederation? Would my noble friend care to comment on that situation?
Lord Trefgarne: My Lords, as my noble friend may know, the decisions of the International Monetary Fund are generally arrived at by a consensus of the board members of the fund, and I would not therefore want to quarrel with the decisions that they have reached. Doubtless they had good reasons to decide as they did. But I certainly confirm that, as my noble friend said on 26th November, we are strong supporters of the stability of that region.
Lord Shepherd: My Lords, the noble Lord referred to the position of the United Kingdom and the Commonwealth. Do I take it that those conditions relate to organisations drawn from the United Kingdom or the Commonwealth? I have very much in mind the Medical Research Council complex in the Gambia, which has been under attack and stress. Can I take it that this new arrangement will give security and tenure to that organisation?
Lord Trefgarne: My Lords, I do not think that the arrangement which is the subject of the Question in any way affects the organisation to which the noble Lord refers.
Baroness Llewelyn-Davies of Hastoe: My Lords, since this is a rather unique situation, where a former French colony and a former British colony have got together, and since we know that the main difficulties are economic, could not the noble Lord make representations, if not to the IMF then in general, to make sure that the stability whose importance he emphasised is maintained financially, and that therefore a democratic régime can be maintained in Senegambia?
Lord Trefgarne: My Lords, as I said, the decisions of the International Monetary Fund are generally arrived at by means of a consensus of the board members, and, of course, we play our part in achieving that consensus.
Lord Brockway: My Lords, while I welcome the fact that the Gambia will still be a part of the British Commonwealth, may I ask the noble Lord this question: Is he aware that the new confederation, as indicated by its negotiations with the IMF, is now in a very serious economic position; and would Her Majesty's Government approach the French Government, which has such close associations with Senegal, to see whether jointly they cannot do something to rescue the people of the confederation from this situation?
Lord Trefgarne: My Lords, I think that what I am being asked to do is to short-circuit the proper procedures of the IMF, of which, of course, France is also a member. If the noble Lord is thinking, on the other hand, of some assistance through our aid programme, of course we do what we can in those countries as well, within the limits of our resources.
Lord Mowbray and Stourton: My Lords, is my noble friend aware that President Senghor of Senegal used to say that, after his mother country by adoption, France, he thought Great Britain was the greatest country in the world?
Lord Trefgarne: My Lords, I agree with him, bar one.

Council Tenants: Home Purchase
2.54 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 whether they will estimate the number of council tenants who have purchased their homes since May 1979.
Lord Bellwin: My Lords, in the period April 1979 to September 1981 local authorities and new towns in Great Britain sold 194,000 dwellings, most of these to their tenants.
Lord Gridley: My Lords, while thanking my noble friend the Minister for that Answer, may I ask him whether he is aware that according to figures in my possession a sum of approximately £539 million was obtained from the sale of council houses during that period, which appears to have remained in the coffers of the local authorities? Is it not the fact that the whole purpose of the sale of these houses is for the construction of other houses? May I ask him whether this is not thwarting the housing policy of the national Government?
Lord Bellwin: My Lords, so far as I am aware, the figure which my noble friend states is correct as regards the amount of money, but the purpose of sales is not, indeed, to lead to the building of further houses. Indeed, one of the major arguments in the whole debate that has ranged round this matter is that by selling to a sitting tenant you make neither more nor less available the house to another person, because the same person continues to occupy it and, therefore, there is no need to build another house to replace the one you have sold. But what authorities do with that amount of money which they now have is up to them. They have a whole range of options in the housing field. They can indeed build, they can also repair, they can maintain or they can offset a debt which is outstanding. There are many things which they can do with the money.
Viscount Hanworth: My Lords, does the noble Lord realise that mobility of labour is vital in obtaining the maximum employment we can, with industries dying in one area and another? Does he also agree that council houses, and new council houses, are a very important factor in making mobility possible?
Lord Bellwin: My Lords, I think the noble Viscount is making a completely different point. I would say
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that the provision of housing, the rehabilitation of existing housing, the bringing back into use of houses which are standing empty—these matters also play a vital role in the whole field of housing, to cover the point which the noble Viscount makes.
Lord Underhill: My Lords, does the Minister appreciate that many local authorities which have very large waiting lists believe that the sale of council houses presents a bitter problem for them, particularly in the light of the fact that the housing "starts" in 1981 were the lowest since the 1914–18 war?
Lord Bellwin: My Lords, I thought that in my Answer to the first supplementary question I had really answered the point which the noble Lord, Lord Underhill, makes; namely, that you do not make the dwelling more or less available because you sell it to the sitting tenant. Therefore, I cannot accept, basically, what he is saying on that.
Lord Taylor of Mansfield: My Lords, can the noble Lord say what, in terms of percentages, the 194,000 represent?
Lord Bellwin: My Lords, I think we are talking in total of a stock of some 6 million dwellings. As a percentage, it is a very small percentage. I think the noble Lord would also like to know, perhaps, to help him on the figures, that there have been certainly some 450,000 applications, and now, as the momentum is growing and authorities are starting to process them more quickly, then the number of sales will grow.
Lord Molloy: My Lords, the noble Lord said that 194,000 houses had been sold, most of them to sitting tenants. With whose permission were they sold to people other than sitting tenants?
Lord Bellwin: My Lords, there has long operated what is called a voluntary consent, which allows the authorities to sell, if they so wish, within certain parameters which were set down. Indeed, Peter Shore, when he was Secretary of State, also operated on this same basis.
The Earl of Kinnoull: My Lords, could my noble friend say whether there is a broad condition by councils on the sale of their houses—I am talking of the claw-back condition—or whether some councils lay down such punitive conditions as to make it unattractive to buyers?
Lord Bellwin: My Lords, the right-to-buy scheme now gives tenants a very wide option, and r would have thought that there are very few limitations now that could make them feel either unable or unwilling to buy. I think the incentives for them to do so are very great. I do not think that is any reason why people should hesitate.
Baroness Fisher of Rednal: My Lords, could the Minister tell us whether the sales have been evenly spread throughout the country? Has the take-up of council tenants been even? Further, has he any figures to let us know whether unemployment is having a slowing down effect on housing sales?
Lord Bellwin: My Lords, If do not have the information that the noble Baroness requests. I know from my own area experience that where sales were made they were made across a very broad spectrum in terms of the types of estates in a city. T would have to update that considerably before giving the noble Baroness a proper answer on that point. As to the second point, about the unemployment factor, unfortunately I am not able to help with that either.
The Earl of Lauderdale: My Lords, will my noble friend tell the House the proportion of local housing authorities that are operating the scheme and those that are frustrating it or seeking to do so?
Lord Bellwin: My Lords, there has been much publicity in this field recently. All authorities are operating the scheme; they are required to do so by law. All tenants have a legal right to buy. The concern has been the dilatory way in which some authorities have been dealing with the matter. I can assure my noble friend that the Government are in touch with all authorities where they feel that they have been going more slowly than they ought. We are watching the situation carefully.

Business
Lord Denham: My Lords, at a convenient moment after 3.30 my noble friend Lord Elton will, with the leave of the House, repeat a Statement to be made in another place on National Health Service treatment of overseas visitors.
It may also be for the convenience of the House if I announce that dinners will be available tomorrow evening.

New Towns Bill
Lord Bellwin: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged—(Lord Bellwin.)
On Question, Motion agreed to.

Transport (Finance) Bill
Read a third time and passed.

Legal Aid Bill [H.L.]
3.3 p.m.
The Lord Chancellor (Lord Hailsham of Saint Marylebone): My Lords, I rise to move that this Bill be now read a second time. If any of your Lordships read what I trust will not be one of the last numbers of The Times newspaper this morning, they will have read a feature under the title, "Lord Hailsham at Bay". One could imagine me in the role of a latter-day
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Actaeon about to be torn apart by a pack of ferocious and ravening hounds. I do not quite cast myself for that role. Actaeon, it will be remembered, was an ancient voyeur who presumed to crawl through the undergrowth in order to watch the goddess Diana bathing and who was in retribution torn to pieces by the divine huntress's hounds. There may be some who deserve to take warning from his appalling fate, for there is nothing quite so up to date as ancient Greek mythology, though no doubt a modern Actaeon would have used a telephoto lens and sold his product to the German press. But I am not in that class and, looking at the list of speakers who have put down their names, I doubt whether any of them quite qualify for the part of the ferocious animals who applied that cruel and unusual punishment to the ancient hero.
What I am afraid of is that, of necessity, I am bound to make a pedestrian, technical and somewhat workaday speech confined to the subject-matter of this Bill, which, in its turn, is confined to criminal legal aid and does not afford me a vehicle for a discussion on legal aid generally, much as I should welcome one at some time if some noble Lord could be persuaded to put down a Motion.
But perhaps by way of preface, I may say that in four successive terms of the Lord Chancellor's office, Lord Chancellors have presided over the fastest growing of all our social services—an achievement all the more remarkable because all were operating under an economic climate of severe constraint on public expenditure in which legal aid has to compete with education, the Health Service , social security, the need to restrain taxation and very many other calls upon the public purse.
Legal aid at present is confined in three separate compartments. Each is administered in a different way. First, there is civil legal aid, the oldest of the three, which is administered by the profession through its committees, with a merits test attached, in addition to a means test. Secondly, there is legal advice and assistance deriving from the Act which I was able to pass in my first term of office. This has no merits test but has a means test and is administered by individual members of the profession, particularly solicitors. Thirdly, there is criminal legal aid, which we are now discussing and which is administered, so far as it can be said to be administered at all, mainly by the courts.
To give some indication by way of background of the rapidity of growth, I think we might bear in mind some of the statistics—of which I will give as few as possible. These are net figures and, as the House will remember, the gross figures will be much larger. To take civil legal aid first, in 1970, only 12 years ago, civil legal aid (by that time already well established) cost the country a net figure of £6·3 million. By 1980–81, the last complete year for which I have a statistic, it cost £35 million net. In the coming year, which is very nearly but not quite over, it is estimated that it will cost just over £50 million. The green form scheme (that is to say, legal assistance and advice) by 1973–74, an early year of its operation, was costing £1·3 million. In 1980–81, it cost just short of £20 million and in 1981–82 it is estimated that it will have cost about £31 million.

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Criminal legal aid is the most expensive. In 1970, by which time it was already well established, it cost £8 million. By 1980–81, it cost £85 million and it is estimated that in 1981–82 it will cost £100 million. In the economic climate which I have described, the chances of extending coverage must be limited and, with the clamour for reduction in taxation, of course, more limited still.
But I must now return to the Bill, which, as I say, is confined to criminal legal aid, for which I undertook responsibility only in July 1980; that is, just over a year ago, in the wake of the Benson Report. This Bill is only the beginning of a process of reconstruction which I think is likely to take several years to complete. Perhaps I ought to explain at the outset that, so far as I have been able to identify them, there are five main problems connected with criminal legal aid. Together they add up to an insufficient degree of public control.
The first problem is the almost total absence of any effective merits test. It is difficult to know how one could easily be devised. But it does mean that many frivolous pleas can be put up with impunity at public expense. The second is the absence at the time of grant of sufficient information to show whether the grant should be given or not. The third is the very large number of time-wasting applications for change of representation when applicants receive somewhat unpalatable advice. This always causes adjournments, inconvenience, delay and expense. The fourth is the absence of reliable information as to the probable length of cases to allow of effective listing by the court's staff, which of course inevitably leads to wasted time as you wait for your case to come on, for which, not unnaturally, the representatives quite reasonably expect to be paid. The fifth, which I think is related to some of the others, is the actual structure of remuneration itself, which is more related to the length and conduct of the trial and hearing than to preparation for the trial and hearing which could, if it could be improved, manage to save expense to a quite a considerable extent.
Since I took on responsiblility in July 1980, as the result of the Government's acceptance of the Benson recommendations, I did so conscientiously and without doubt, although I confess I did so without particular enthusiasm. I had long thought that it was illogical for responsibility for criminal and civil legal aid to be dependent on separate Government departments. It may turn out to be a poisoned chalice; I nevertheless propose to quaff its contents conscientiously, perhaps leaving a small libation to Æsculapius at the end.
In March 1981 we sent out to justices' clerks a circular setting out my preliminary views. That circular emphasised the importance of ensuring that courts should always obtain sufficient information to determine whether aid is desirable in individual cases. It also stressed the importance of avoiding waste, and suggested that courts should ensure so far as they can that listing arrangements should not lead to unnecessary expenditure on solicitors' time spent waiting for their cases to be called.
In addition, the circular dealt with two matters which are also covered by this Bill; namely, first, the need to ensure that work is not duplicated by unjustified
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applications for a change of solicitor, and, secondly, the desirability in appropriate cases of requiring a defendant to contribute towards the cost.
The Bill deals with four main subjects: first, duty solicitors, secondly, the scope of legal aid orders, thirdly, the involvement in certain matters of the Law Society's legal aid committees, and, fourthly, contributions from defendants.
I return to the first: duty solicitor schemes. By now, duty solicitor schemes have proved their worth. They provide emergency initial advice and representation to defendants when they first appear in magistrates' courts. Many of these defendants, particularly if they have been held in custody overnight, will have been unable to consult their own solicitor. The purpose of the duty solicitor is to ensure that defendants can obtain advice before they appear in court, and, if the defendant so requests, to make an application for bail. On a plea of guilty, the duty solicitor may also offer a plea in mitigation. The number of schemes has increased steadily over the past 10 years, which I think in a sense proves their worth. They now serve over 130 separate courts. They have filled an important gap in our legal services and provide an excellent example of the benefit which may be obtained from co-operation between magistrates' courts and local practitioners. The time has now come to provide for them a statutory framework. The provisions in Clause 1 enable the Law Society to make arrangements for duty solicitor schemes in a scheme under Section 15 of the Legal Aid Act 1974. These schemes require the approval of the Lord Chancellor and the concurrence of the Treasury. The clause recognises the importance of co-operation between the profession and the courts by providing for the inclusion of a justice of the peace and a justices' clerk on the scheme-making body and on the committees which will administer the arrangements.
Finally, the clause enables the Lord Chancellor —again, I add, with the approval of the Treasury—to make regulations for remuneration. The provisions of Clause 1 will help the Law Society to ensure that the services provided to defendants fully meet their needs, and that those providing the service are sufficiently experienced. They will also enable more satisfactory arrangements to be made for remuneration, instead of continuing to require duty solicitors to act under existing schemes for aid, advice and assistance.
The second matter is the scope of legal aid orders. Those are dealt with in Clause 2, which enables a magistrates' court to make an order covering both committal proceedings and trial at the Crown Court as soon as its venue has been determined. At present, a legal aid order for trial in the Crown Court may only be made after committal. Accordingly, solicitors are sometimes reluctant to prepare for trial—including the need to seek counsel's advice—because the magistrates' court legal aid order does not cover counsel, and, if for any reason the defendant should not be committed or a different solicitor is assigned for the trial, the solicitor who has carried out the early preparation will not be paid for it. Where preparation for trial is thus delayed, counsel will often not be involved until the day of trial. If his advice leads to a late plea of guilty, unnecessary and wasteful preparation for trial will have been carried out, and the listing

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arrangements of the Crown Court will be seriously disrupted.
The purpose of Clause 2 is to encourage early preparation where the defendant does not wish to contest the committal itself. Early preparation is usually better preparation, and in any event will enable the solicitor to give realistic information about the case of the Crown Court shortly after committal. This will be of considerable benefit for listing purposes. There is still an unacceptable delay between committal and trial in some parts of the country—particularly the South-East and London—and it is imperative that the best possible use be made of the time of Crown Court judges. The ability of the Crown Court to make in advance an accurate assessment of the probable length of cases is essential to ensure that the judges' time is not wasted.
The third major provision is contained in Clause 3. This enables the Lord Chancellor to prescribe that the Law Society's legal aid committees shall exercise some additional functions. These committees, as the House will remember, consist of experienced practising lawyers who bring an independent professional judgement to bear on their work. They have always been closely involved with civil legal aid, where their functions include determining applications for aid or a change of solicitor, with issuing legal aid certificates, limited to particular steps in the proceedings, with extending certificates where desirable, and with authorising the solicitor to incur certain specified costs. There is scope for these committees to play a larger role in criminal legal aid. At present their functions are limited to the assessment of bills in proceedings in courts of summary jurisdiction. The desirability of an extended role in criminal cases is confirmed by recent reports of the Advisory Committee on Legal Aid and of the Law Society. Each recommends that the role of the committees in criminal aid should be increased.
The functions which the committees could thus acquire fall into two groups. Some powers are new. Some are presently exercised by the courts under Sections 30 (subsections (1) and (2)), and 31 of the 1974 Act. The powers in Section 30 concern the assignment of counsel in magistrates' court cases and of more than one counsel in Crown Court cases. Those in Section 31 concern the amendment of orders by the substitution of new legal representatives for those originally assigned, and the revocation of legal aid orders. It is not easy for the courts to carry out these functions because, to make a fully informed decision, it is very often necessary to know the nature of the defence or details of the defendant's conduct, and the courts are naturally, and, I think, properly, reluctant to inquire closely into such matters.
The idea now is for the Lord Chancellor to make regulations under which applications would continue to be made to the courts in the first instance, so that where they were obviously correct they could be granted without reference to the committee. On the other hand, where it was necessary to inquire further, the court would refer the application to a committee for decision. These committees will be better equipped, where necessary, to probe applications thoroughly, and I expect that their involvement will enable more fully informed decisions to be made. It is obviously im-
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portant that reference to the committees should not lead to delay. To ensure that this does not occur, arrangements will be made to enable them to deal with applications very speedily. Such arrangements already exist for emergency certificates in civil aid. The proposed regulations will also enable the courts to refuse re-applications, and applications made after the trial has commenced, without reference to committees.
The new powers under Clause 3 will also enable the committees to authorise specified reasonable expenditure in advance for the purpose of taxation or assessment of bills. They already exercise that function in connection with civil aid, but there is no corresponding power for criminal aid. The absence of a power to authorise expenditure in advance means that when, for instance, a solicitor wishes to instruct an expert witness or to spend money tracing a witness as to fact, he cannot be sure that the cost will be met by legal aid. Advance approval will ensure that, provided the work is properly done, the solicitor will be reimbursed. I am sure that this will be welcomed by the profession.
The fourth major provision introduces new arrangements for contributions. Until the Criminal Justice Act 1967 came into effect, there was no contribution system for criminal legal aid at all. Up to then criminal legal aid was granted on an "all or nothing" basis. If defendants were granted legal aid they paid nothing. If they were not, they had to meet the full cost of their defence. That system was criticised by the Widgery Committee on the ground that it operated unfairly, particularly since the standard of eligibility imposed varied from court to court. The committee's recommendation that a system of contributions should be introduced was carried out in the Criminal Justice Act 1967 and since then the system has remained substantially unchanged. But contributions have not yielded the income expected. The Widgery Committee estimated that receipts might be as much as £500,000, at a time when criminal legal aid expenditure was running at a rate of less than £5 million a year. So the expectation was that contributions might cover 10 per cent. of the cost, but they have never done so. In point of fact they have never exceeded 3 per cent. In the current year the figure is expected to be about £2 million, out of the £100 million 1 have already mentioned. The gap between expectation and experience is partially attributable to the inherent fallibility of all estimates (if that is the right word) of that nature. But it is also a result of defects in the system for assessing and collecting contributions, and these this Bill now seeks to remedy.
Under present arrangements, unless a legal aid order is revoked, a court cannot require an assisted person to pay a contribution until the case is disposed of. It can require a defendant to make a down-payment on account of any contribution that may be subsequently ordered as a condition of granting aid. But if no order is made at the end of the case, that down-payment must be returned whatever the result. At the end of the case, there may be many other demands on a convicted defendant's resources. For example, the court may wish to fine him, to order him to pay compensation, or to order him to pay part of the cost of the prosecution. If a convicted defendant is imprisoned in the end, he is unlikely to have resources from which he can pay any contribution. Conse-

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quently, less than the expected 10 per cent. of the cost of legal aid in criminal proceedings has been met by contributions from defendants.
A further defect is that the regulations governing assessment are inadequate and out-of-date. The regulations lay down levels of disposable income and disposable capital below which courts may not require a contribution, but do not require the courts to order a contribution at all from persons with resources above those levels. Nor do they provide any guidance as to the manner in which a contribution should be established. The minimum levels themselves are too low, and have not been changed since 1979. They do not even ensure that persons whose income is well below the level of supplementary benefit cannot be ordered to pay a contribution.
The arrangements for civil legal aid are quite different. By that system, contributions from income are assessed by requiring assisted persons to pay a specified fraction (currently one-quarter) of the amount by which their disposable income exceeds a specified level (currently £1,700 a year). Contributions from income are normally payable by monthly instalments, from the date legal aid is granted.
My intention would be to use the new powers under Clause 4 to introduce broadly similar arrangements for criminal legal aid. The system of means assessment would be simpler than that used for civil aid, so that it can he operated quickly and easily by administrative staff in court offices. But the principles will be the same. Contributions will be determined in accordance with regulations and, in the case of contributions from income, will be payable in instalments from the date on which aid is granted. In Clause 5 there is provision for contributions to be reassessed where the assisted person's resources change.
One respect in which the system will differ from civil aid is that the courts will have some power, at the end of the proceedings, to remit and repay contributions. Where a defendant has been convicted, the court will have power to remit contributions which have not yet fallen due. This is necessary to ensure that the court's sentencing powers are not constrained by pre-emption of the defendant's resources. Where a defendant has been acquitted the court will also have a discretion to order the repayment to the defendant of contributions which have already been paid. This is necessary because, while the successful litigant in civil proceedings can normally expect to recover his costs from the losing party, that principle does not apply in criminal cases.
I envisage that the courts will exercise the discretion on similar principles to those governing the award of costs to acquitted defendants. In other words, an acquitted defendant will normally be relieved of any obligation to contribute except where he has brought the prosecution on himself by misleading the police into thinking that the case against him is stronger than it is, or where he is acquitted on a mere technicality but for which there would be ample evidence to justify a conviction. These new arrangements will ensure that contributions are assessed and required in a consistent manner. Defendants who can afford to contribute towards the cost will do so, but those who cannot will not be required to do so. They will also increase
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income from contributions, although it is difficult to estimate by how much.
There is very little else that I need mention in the remainder of the Bill, which deals with minor and technical amendments. But perhaps I should mention Clause 9, which provides for the integration of advice and assistance with criminal legal aid where a solicitor acts for a client under both schemes—that is to say, both the criminal scheme and the green form scheme—in the same case. This means that instead of submitting two separate bills, one under the green form scheme and one for aid, the solicitor will submit a single bill covering all the work he has done in the case. It will also remove the disadvantage to a defendant seeking advice and assistance which arises from the fact that he is, at present, liable to pay two separate contributions. Under Clause 9, a contribution due for advice and assistance will be credited against the legal aid contribution. Clause 10 removes a doubt of a very technical kind, which I am prepared to explain if demanded, but it is not intended to alter the effect of present practice.
I think that I should conclude this speech by thanking those who have submitted various proposals for changes in the system in the last 18 months or so, since I assumed responsibility in 1980 for criminal legal aid. Both branches of the profession have helped. The Justices' Clerks' Society has helped, and so has the Association of Magisterial Officers. All have made valuable suggestions and all have been carefully considered, though not all appear in the Bill. In particular, of course, I must pay a special tribute to the Advisory Committee on Legal Aid, who give generously of their time to advise on all these matters and on many others.
I admit that this Bill does not make fundamental changes in criminal legal aid. But it does lay foundations for more widespread changes than perhaps are realised, and fundamental changes will, no doubt, be made in due course either by this or by some future Lord Chancellor. In the meantime, I hope that the Bill will be worthwhile and will make valuable improvements to the present system. My Lords, with those words, I beg to move that the Bill be now read a second time.
Moved, That the Bill be now read a second time.—(The Lord Chancellor.)
3.33 p.m.
Lord Elwyn-Jones: My Lords, this Bill deals with a very important part of our social services: namely, the provision of legal aid in criminal cases. We are grateful to the noble and learned Lord the Lord Chancellor for taking us through its provisions. The need for equal access to justice should, your Lordships may think, be an imperative in all civilised societies. A fair trial in serious cases depends, to a very considerable degree, on proper representation for accused persons. It is particularly the case in this country where we have the adversary system of court procedures, whereby it falls to the defence to bring forward its case and the power of the judge, exercise it as best he will, is somewhat more limited than in other jurisdictions with different dominance of the judge over the proceedings. Therefore, criminal legal aid is a crucial need in our community and, of course, particularly

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for the poorest members of the community who are very often those who are more liable to be brought before the courts.
We have made signal advances in this field, as the noble and learned Lord the Lord Chancellor has said, since it was introduced by my then right honourable friend the Attorney-General, Hartley Shawcross, way back in 1948–49. Since that time, it is undoubtedly the case that a large number of our fellow citizens, whose cases would not have been defended in the courts, have been defended, and I have little doubt that a great deal of injustice that might have occurred has been saved by reason of the provisions of the scheme. In absolute terms, it looks an awful lot of money, but in terms of its value to our society I think that the financial aspect of it is certainly not excessive.
I recollect when I made my maiden speech as Lord Chancellor in 1974, indicating how much room there still was for extension of the legal aid scheme both on the criminal side and, in particular, then, on the civil side, for I had just received a report from the Lord Chancellor's advisory committee, indicating wide areas where the absence of legal aid was not only denying to our fellow citizens knowledge of their rights, but denying the means of enforcing their rights in the courts when they became aware of them. Frankly, I hoped that my term as Lord Chancellor would be marked by major advance in this field. We did advance, but, unhappily, the advance was restricted by financial limitations.
Now we meet to discuss this matter today, at a time when the legal aid system is facing the combination of, first, the pressure of a vast increase in the number of cases coming before the courts, particularly the criminal courts; and, secondly, the increasingly high costs of legal proceedings. There is no doubt that the legal aid system is under great strain and it is therefore appropriate that this Bill should have been brought forward to us on this day, not only because of its own provisions but because it enables us to look at the situation and to see where we go from here.
The immediate occasion for the Bill coming forward is, I suppose, the transfer of responsibility for legal aid in the Crown courts, and, indeed, in magistrates' courts, from the Home Secretary to the Lord Chancellor. I venture to suspect that it is a buck which the Home Secretary passed joyfully. I shall not speak of a poisoned chalice, but it is pretty sour wine. The difficulty about it is that it leaves the Lord Chancellor helpless in one important regard. He can do nothing to improve the procedures in the courts, to eliminate wasteful procedures that are going on, or that may be shown to be going on, in the magistrates' courts or the Crown courts.
I recollect—I say this not out of boastfulness—that the last major advance we made in the legal aid field was in 1979, when, owing to the fact that as Lord Chancellor I was able to take away legal aid from undefended divorce cases, a good deal of "lolly" became available—I know that there is argument about how much there was. With the same resources, we were able to make a considerable contribution, at any rate, to the package which I introduced in 1979, which increased eligibility for legal aid and the coverage of the scheme, cut contributions and made it possible
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for more money to be made available for law centres, and for more law centres.
In passing, unless I forget, because I regard their role as of great importance in the provision of legal services to the community, what is happening to the law centres? I have had some critical messages from them. Are they being allowed to sink? If so, we shall light very hard to save them. I feel that the House would be gratified if, before the debate ends tonight, we could have some reassurance from the noble and learned Lord the Lord Chancellor relating to that matter. Not only do the law centres, in the most needful areas, contribute to the civil side but, particularly in making provision for young defendants in the criminal courts and the magistrates' courts, they arc playing a very important part indeed. Therefore, I hope we shall receive some reassurance about that.
However, that diversion to which I attach great importance has taken me away from the question: To what extent have we been giving earnest consideration to limiting the occasions when the requirement of legal aid to enable justice to be done is reduced by the elimination of wasteful procedures? One of the most wasteful matters is the cost of waiting time at the courts. The Law Society itself has drawn attention to the listing problem, particularly in the magistrates' courts, and the very considerable expense which that confers upon the public purse. I do not know whether the noble and learned Lord the Lord Chancellor is able to give us hope of any proposals emerging there.
One matter which I do not think that the House has yet considered are the recommendations of the Philips Committee which touch very importantly upon this problem. They have no doubt controversial but very important suggestions to make regarding the cost and the procedures of committal proceedings, which undoubtedly are an important element in legal aid costs. I wonder whether the noble and learned Lord the Lord Chancellor will be able to indicate what are the Government's intentions in that field.
May I also say in passing that there has been a thundering silence from the Lord Chancellor's Department about the report of the Benson Royal Commission which has also made important contributions by way of suggestions in the legal aid field. I confess that I myself felt somewhat frustrated when it was set up, way back in 1977 or thereabouts, that ideas which I and my department had about legal aid were temporarily put into cold storage. The members of the Benson Commission must feel, to say the least, a little frustrated by the substantial inaction which has followed the publication of the report. But perhaps I am spreading the net of my questions too widely for it to be reasonable to expect the noble and learned Lord the Lord Chancellor to answer them. However, I stress the importance we should attach to striving to eliminate wasteful procedures, which in turn attract the need for legal aid. It is an important factor in this field.
The provisions of the Bill have been described to us by the noble and learned Lord the Lord Chancellor lucidly—as one would expect. He has indicated, as I think is the case, that it is largely an enabling Bill and that until we see the flesh which will be put upon the skeletal framework we are not fully in a position

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fully to appraise the ultimate result of the cases. There will no doubt be some hard negotiation and discussion before the relevant orders that fall to be made are made.
So far as some of the proposals which the noble and learned Lord has mentioned are concerned, like the provision of a statutory framework for duty solicitor schemes to replace the present unco-ordinated arrangements, I certainly favour that approach. But it is important to emphasise that valuable as duty solicitor schemes have been, especially as a first aid measure, they are no substitute for full legal aid in preparing a case for trial in the normal course of events. I also think that the extension of the scope of legal aid orders in the manner which the noble and learned Lord has indicated seems to be a sensible way of avoiding duplication and of piecemeal dealing with a continuing problem. May I turn to the third important step which the learned and noble Lord mentioned, of increasing the functions of legal aid committees by enabling them to deal with the additional matters which the noble and learned Lord has mentioned are important—matters like representations by counsel in a magistrates' court or by a leader in the Crown court and dealing with amendment of legal aid orders. On their powers to deal with revocation of legal aid orders, this of course raises a very serious problem. Is there to be any appeal machinery in respect of such revocation, which could be disastrous and, if unjustified, would be a monstrous denial of justice? I hope there will be some indication as to whether revocation will in fact require a court hearing before it is finalised.
Perhaps the most important part of the Bill and the one which has already caused the most controversy and concern is the proposed new scheme designed to levy contributions for criminal legal aid. I have already had representations from the Child Poverty Action Group that the Bill's proposals will result in fewer poor families receiving representation in criminal cases. I think it would be an appalling consequence of some limited saving of finance if there were a greater proportion of unrepresented defendants appearing in the courts or of defendants forced to plead guilty, solely for financial reasons. Accordingly, when they appear we shall be looking very carefully at the details of the proposals for the levying of contributions. The position of the accused persons in a criminal case is very different from that of the civil litigant, important as his rights are when one considers the merits of bringing forward a civil case. The time factor is more pressing, more urgent, in the criminal case. That is partly why it has been left to the magistrates' court to deal with the position as best it can as quickly as it can, which I agree results in an unsatisfactory end result. But we must be careful how we proceed.
Turning to the quick means assessment, I did not know whether it is intended to be on precisely the same level of contributions. It would be deplorable if parents of children on the margin of ability to finance the defence of their children had the result of their children being unrepresented.
Therefore, all I do at this stage is to sound a note of warning that we shall examine the provisions with great care when they appear. I notice that a solicitor
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who worked well in the Lord Chancellor's Department, Mr. Cyril Glasser, has given a very critical view in the Law Society Gazette about the implications and the details of what is proposed in this field, and it may well be that when we come to the Committee stage we shall be able to examine those and other criticisms in great detail.
At this stage at any rate we on this side of the House will certainly not oppose the Second Reading of this Bill. It has elements of which we approve, but, as I have already indicated, we shall be indeed casting a very wary and watchful eye on many parts when in due course it comes back to the House.

NHS: Treatment of Overseas Visitors
3.51 p.m.
The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Elton): My Lords, with the leave of the House, I will now repeat a Statement being made in another place by my right honourable friend the Secretary of State for Social Services. The Statement is as follows:
"With permission, I should like to make a Statement about changes which the Government propose to make in the rules for use of the National Health Service by overseas visitors.
"My predecessor told the House last March of the Government's intention to make regulations to provide for charges for hospital treatment for those not ordinarily resident in the United Kingdom. The National Health Service is under pressure, with long waiting lists for some specialties in some parts of the country. It is only fair that people coming from overseas who have not contributed through taxes should be asked to pay for treatment which our own citizens would be required to pay when they are overseas. We have consulted widely on the proposals and I can now report to the House that, subject to some important modifications, we intend to implement these proposals with effect from 1st October.
"When our original proposals were announced two major fears were expressed. First, there was concern that the procedures might be complex to administer. Second, there was concern that, contrary to our intentions, the procedures used to identify chargeable patients could give rise to racial discrimination. The Government therefore decided to set up a working party representing a wide range of interests to advise us on how these difficulties might be overcome.
"I am grateful to the working party, and copies of their report have today been placed in the Vote Office. The working party found that the present rules are not being administered consistently or fairly. In particular, they thought there was a distinct risk that checks on eligibility may be being applied by many hospitals in a way which discriminates against members of ethnic minorities living here. I am satisfied that a new system can be introduced which will provide extra finance for the National Health Service, and which hospitals can administer in a way which will minimise the risk of racial discrimination. We therefore accept the

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working party's recommendation that there should be a standard procedure for checking the eligibility of all new hospital patients and guidance will be issued to hospitals on the main principles identified by the working party.
"We propose, however, some further changes in the scope of the scheme. In response to representations that the proposals would bear hardly on overseas students here for a considerable period, we have decided that all visitors—including overseas students—should become exempt from charges after they have been here for one year, instead of the three years in the earlier proposals. We also propose that people coming here to work should be fully exempt from the beginning of their stay as will some visiting dependents of people settled in this country. In other respects the scheme will be broadly the same as that on which we consulted last year. We estimate that the charges will raise some £6 million in a full year. I should emphasise that the money will be available to the district health authorities or boards to finance their expenditure on health care.
"Reciprocal agreements with other countries will of course be fully honoured. We shall lay regulations before the House in due course. The new arrangements will be publicised abroad so that visitors coming here can take out insurance before they arrive, as we do when we visit their countries.
"In making these changes we will bring our position into line with virtually every other western country. There is no reason why the British taxpayer should provide free hospital treatment to short-term visitors to this country ".
That concludes the Statement, my Lords.
3.55 p.m.
Lord Wallace of Coslany: My Lords, first of all, may I thank the noble Lord, Lord Elton, for the very comprehensive Statement that he has made. I cannot say, quite honestly, that I welcome this Statement, because the Statement indicates a major departure from the principle on which Britain's National Health Service was founded; namely, that all who fall sick within our shores should receive treatment irrespective of class, colour or creed, the parable of the Good Samaritan in practice. Speaking as one who was very much involved in the campaign to bring in the National Health Service in those days, that was the principle that activated us, in which we could set an example to the world.
I would ask the noble Lord: What evidence of abuse of the National Health Service has been produced to the working party or the Government to justify this move? The proposals will, incidentally, mainly affect nationals of poorer countries overseas; yet I understand that Common Market countries are to be exempt. I would like to ask the noble Lord, as he would expect, a number of questions. Does this affect the Republic of Ireland? How do the Government arrive at a saving of £6 million? Is this figure net or gross, bearing in mind that considerable administrative work will arise to hospitals and GPs, as all new patients—and this is a major departure—whether they are British nationals living in Britain or otherwise, will have to complete a form, and GPs in the main will be
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responsible for these forms. it would appear that considerable work will now fall on GPs in referring people to hospital and the consequent filling in of forms.
My third question is: Will people resident abroad but in receipt of United Kingdom pensions be covered? Fourthly, while I am glad that the reciprocal agreements are preserved, will the Government publicise countries where such agreements exist? I am fully aware that leaflets are available, but the average person is not aware of this. I think the time has come when tour operators, operators of package tours and so on, should compulsorily provide the excellent leaflet that the department issues.
So far as students are concerned, naturally I and all of us will appreciate the reduction to one year. But I ask: Why one year for genuine students? It is quite conceivable during that year that a student may fall ill, particularly if he comes from a tropical country to Britain. What will happen to the student in that particular period?
My next question is: What measures will be taken to recover charges when the patient is unable to pay, bearing in mind the obvious difficulties that are already being experienced by some health authorities in recovering charges at present made for private beds in the National Health Service? Will there be an initial check on ability to pay? What will happen when a patient obviously cannot manage payment? I assume that the patient will be treated whether he can afford it or not.
Finally, the noble Lord said the regulations will be placed before the House. May I assume, therefore, that these regulations will be debated fully both here and in another place?
Lord Gladwyn: My Lords, we too would like to thank the noble Lord, Lord Elton, for repeating the Statement. We naturally welcome the concession which has been made in respect of overseas students—they are considerable concessions, certainly—but we still consider that the proposed contributions to the National Health Service during the first year of these students' residence here will bear very heavily upon them, more particularly in view of the highest fees in the world which they are at present suffering. Notably, it will affect very unfavourably those coming from the poorer Commonwealth countries. It also seems rather odd to us that total exemption will be allowed not only in respect of EEC countries, which is right and proper under the Treaty of Rome, but also to those coming from eastern European countries, notably the Soviet Union, while those from deserving Commonwealth countries, such as Malaysia or Kenya, will apparently be stung. That seems to us to be paradoxical, to say the least.
In view of the circumstances, and the fact that the new system will inevitably imply a larger bureaucracy, which is not denied, and that, as I understand it, other funded students will still apparently escape, thus combining to produce savings much less than even £6 million, why should not the Government go the whole hog and exempt overseas students altogether? That would seem the natural and reasonable thing to do. Finally, may I ask what happens if a student is admitted to hospital after an accident and cannot afford to pay?
4.2 p.m.
Lord Elton: My Lords, I am not sure how grateful protocol requires me to be for the way in which noble Lords opposite have received this Statement, but I certainly take note of what they say. In reply to the noble Lord, Lord Wallace of Coslany, I would say that the National Health Service was not funded to provide free medical treatment for the entire population of the world. The noble Lord took the image of the Good Samaritan, but may I point out to him that the Good Samaritan was travelling along a road, where he met the victim; the victim did not deposit himself on the front doorstep in order to have his accident. The noble Lord asked what evidence we have of abuse. It is not easy to quantify evidence of abuse, but it is very clear, if subjective, from the mailbags of Members in another place, and indeed in letters that I myself see, that abuse does take place. Indeed, it takes place to the extent of a cost of £6 million net, and that is the gain which we expect to make in the National Health Service.
The original suggestions were, I believe, open to the criticism that they were complicated and therefore costly. That is one of the reasons why the working party was appointed. It produced a much simpler programme with two stages of identifying people eligible for exemption. The first is the universal challenge and consists only of three questions. If the answer to any of those questions is Yes, no documentary proof is asked for and that is the end of the matter. This is conducted in hospitals and not by general practitioners, as the noble Lord, Lord Wallace of Coslany, wished to be assured.
In respect of persons retired abroad, there will be exemption for charges in cases of immediate necessity, but for anything else, or thereafter, it will be a question of whether or not the person resumes residency in this country. As to the matter of students, it is a considerable concession—and most courses last three years, and some last four years—to exempt everybody after the first year. In the first year, the student, if he is a bona fide student, will have made arrangements before he comes here. He will have considered what his obligations will be and doubtless, if he is prudent, he will have taken out insurance just as your Lordships or your Lordships' children would if they went abroad to a country without reciprocal arrangements. On the matter of reciprocity, the noble Lord, Lord Gladwyn, asked why Russia was included in the reciprocal countries. I would add that I believe that the whole of the eastern bloc is included, because the whole of the eastern bloc has reciprocal arrangements. If the noble Lord were unfortunate enough to fall ill in any of those countries, he will get treatment free of charge, which is what his host would suppose was the equivalent of what the noble Lord would receive here, although I would recommend him to get home first if he can.
As to the question of recoverability, the recoverability of charges is a matter for the hospital authority; it is for them to recover those debts as it is for any prudent person to recover any debt if a person goes without paying a debt then the normal course will be pursued, and it will vary from country to country no doubt according to the conventions. I believe that I have answered all the questions which were raised. If I have not done so, I am sure noble Lords will remind me.
Lord Boyd-Carpenter: My Lords, might I ask my noble friend three questions on his most interesting Statement? First of all, will the charges be calculated fully to recover the cost of treating the individual concerned? Secondly, how does my noble friend and his right honourable friend propose to deal with the case of a person coming from a tropical country who develops a highly infectious disease which it is of great importance to us should be treated speedily, in hospital, in isolation? Is he satisfied that these arrangements will not deter that person from doing what is very much in our country's interests and getting quickly into hospital? Thirdly, will the noble Lord's right honourable friend continue to seek to negotiate reciprocal agreements with other countries that offer comparable health services? It is apparent that, if he does, he will lose a little revenue at home; but is my noble friend aware of the enormous value of these reciprocal agreements to those of our fellow countrymen who travel abroad? Will he give an assurance that his right honourable friend will still seek to negotiate reciprocal agreements when opportunity offers?
Lord Elton: My Lords, in response to my noble friend, on the question of the level of charges, they will be set at the same level as those for private treatment under the National Health Service when separate arrangements with the consultant have not been made. On the question of infectious diseases, the proposal is that all communicable diseases shall be exempt from charge. I believe that that answers the question. It might be worth adding that treatment in hospitals before formal admission—that is, treatment in accident and emergency departments—will also be free of charge.
As to reciprocity, I will certainly draw my noble friend's remarks to the attention of my right honourable friend. I have no doubt that he is already aware of the implications of this. The benefits of reciprocity will perhaps be more apparent to countries with which no such arrangements exist after the introduction of these arrangements than formerly they have been.
Lord Davies of Leek: My Lords, while thanking the noble Lord for his Statement and as someone who had privilege, when a junior Minister, of helping two or three countries to negotiate reciprocal agreements, may I ask whether the noble Minister is aware that this calculation of saving £6 million is going to create, or so it seems to me, a huge edifice of bureaucracy which in truth will not save £6 million at all for the country? Secondly, in view of the fact that more and more people are spinning around the world by jet on holidays, would he follow the advice of the noble Lord, who put it in the form of a question, to increase reciprocity agreements in many more parts of the world—particularly in South America and in the United States of America? Lastly, as a matter of history, did the noble Lord ever see that marvellous film "The Man Who Came to Dinner"? He was a good man who landed on the doorstep, and who not only fell once but who fell for the last time after he had been looked after for about 12 months; he was a good samaritan who deposited himself on his hosts' doorstep.
Lord Elton: My Lords, on the first point, I think that it might reassure your Lordships if I explained a little more what the process will be. On formal admission to the hospital a patient will first be asked, "Have you or your husband or wife lived in this country for the last 12 months? If the answer to that is, "Yes", then that is the end of the matter. The second question will be, "Are you or your wife living permanently or indefinitely in this country? "If the answer to that question is, "Yes", then that is the end of the matter. The third question will be, "Are you or your husband or wife in this country for the purpose of work?" If the answer to that question is, "Yes", then that is the end of the matter. That requires no enormous edifice of bureaucracy: it requires one intelligent and sympathetic person, and 1 am quite convinced that the National Health Service is able to produce him.
On the second point, I think that I have already replied about reciprocity to my noble friend. On the third point, it is a very long time since I saw the admirable film about the man who came to dinner. As I recall it, his accident was genuinely accidental, but if he deposited himself on purpose it was not with the intention of breaking various limbs in his body.
Lord Donaldson of Kingsbridge: My Lords, in relation to the question of students, can the noble Lord explain why people coming to work here are treated—I think, quite correctly—with exemption and students are not? Students are coming here to work and it seems to me that the Government have done so much damage already to students that they ought to be very careful about this matter. I should like to support the noble Lord, Lord Gladwyn, and the noble Lord from the Front Bench who spoke, in begging the Government to reconsider this matter.
The other point that I should like to make is simply that the main object here is to prevent abuse. Although I think that there is a lot of abuse outside the student world, I do not think that there is very much evidence of abuse within it. So the case is really quite strong. Finally, may I make the point that at last the savings which are expected to be made are not going to be snaffled by the Treasury, but are going to be given to the hospital boards. As regards that I fully congratulate the noble Lord.
Lord Elton: My Lords, on the first point, I think that I should say that no Government in this country have ever treated students as a special category under the National Health Service. Moreover, it is sometimes difficult to distinguish the bona fide student from the person who becomes a student in order to enjoy special benefits. If a person is here for 12 months only then I think that the noble Lord will see what I am driving at. As to the question of the savings remaining with the district in question, I am glad that the noble Lord shares our view.
Baroness David: My Lords, can the noble Lord give us an idea of the cost? If the overseas students were exempted for the first year as well as the later years of their course what difference would that make? Following up what the noble Lord, Lord Donaldson said, would such action be worth while for the promotion of
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good feeling?—because we know what ill-feeling has been caused by the full cost fees for overseas students. Would this not do something to make that better?
Lord Elton: My Lords, I much regret that I shall have to ask the noble Baroness to be patient with me. I shall write to her because I do not have the detailed costing. I shall hope to see that my letter reaches her quicker than my last letter.
Lord Gridley: My Lords, I should like to ask the Minister a short question. Will these regulations be brought before the House and shall we have an opportunity of looking at them and possibly debating them?
Lord Elton: My Lords, I am sorry that I did not answer that question earlier. I should have done so. The answer is, "Yes". It is a negative procedure, but it is open to members of either House to pray against them. I would expect them before the summer recess.
Lord Molloy: My Lords, is the noble Lord aware that there are many people who will regret that he has demoted the parable of the Good Samaritan in favour of some of the ethics of the Merchant of Venice, and that squeezing this couple of ounces of flesh—£6 million —will not do credit either to the Government or to the nation? On the question of reciprocity, would the noble Lord be good enough to examine the situation where people who come to our nation somehow or other—and many try to learn and understand our ways to take them back to their own countries—will not be able to have any reciprocity in their countries? Also on the question of reciprocity, I think that the wider we can spread the principle on which the National Health Service is based throughout the world, rather than devoting millions to nuclear weapons, the quicker sanity will return.
In conclusion, I should like to ask the noble Lord whether it would be possible, rather than trying to squeeze £6 million out of sick people who might be coming to this country, to tighten up on the black economy of those very wealthy people who cheat the Exchequer to the tune of something between £7 billion and £9 billion a year? A little improvement on that vile situation would, as I have said, make it totally unnecessary to elevate the principles of Shylock in favour of the principles of the Good Samaritan.
Lord Elton: My Lords, I think that the noble Lord has expressed more sentiment than question. I find it difficult to say anything except that I have not met Shylock in the pages of the New Testament and cannot follow the analogy that he seeks to make. On the question of reciprocity, I have already said once and implied once that we are in favour of it where we can achieve it. Naturally there are countries which do not have a national health service equal to ours. Indeed, what the noble Lord has said makes it clear that no country has a national health service equal to ours, and, therefore, full reciprocity around the world cannot be achieved. And where it cannot be achieved, where people are not covered by reciprocity, they need to be covered, as I do not doubt the noble Lord himself is when he travels, with an insurance policy against unfortunate eventualities. I do not think that I

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will follow the noble Lord, although every time we have exchanges across the Floor of the House he tempts me to follow him, into the area of the Budget even if I recognise the people he wishes me to pursue.
Lord Wedderburn of Charlton: My Lords, before the noble Lord finalises his thoughts as regards the matters he is going to investigate about overseas students, is he aware that it is a little alarming that there is not even a general figure to give as an estimate of the contribution to the £6 million which the charges on overseas students will provide? Secondly, is he aware that many people will hope that his right honourable friend will have had consultations with his right honourable friend in charge of higher education? Is he aware that a large number of overseas students are now a necessary condition for the survival of the university system in this country? Is he, therefore, able to give your Lordships, or able to promise to provide, the information which arose from those consultations as to the effect that these charges may have on the continuing availability of some of those higher education students? I ask that because, if I read in Hansard what I thought I heard—namely, the remark that overseas students could do what your Lordships could do; that is, insure against ill health for a year—is the Minister aware that he makes a very grave mistake, indeed, in believing that the large and welcome number of students who come to us from all over the world have that kind of financial affluence?
Lord Elton: My Lords, on the first point, it was not my intention to say that a costing did not exist. It was my intention to say that I regretted that I did not have it at my finger tips. I shall certainly give the noble Lord a copy of the letter which I send to the noble Baroness. The noble Lord is not alone in valuing overseas students at out universities. But the figures which he next asked me to reveal to him and their effects, were those for the changes in charges for tuition of overseas students, and that is the subject of a different question.
As to the matter of insurance, I can only say to the noble Lord that the need to provide for the unexpected is no less for the student than it is for anybody else. I am sure that the noble Lord will be the first to admit that it is a fairly costly business to come to this country for a course or to go to any other country for a course for two or three years, and this will not be a very considerable amount to take into the total expenditure. I do not wish to sound uncharitable to these people, but we live in the real world and I think that the Government, by reducing the qualification from three years to one year, have done something which the noble Lord might acknowledge.
Lord Wallace of Coslany: My Lords, I should like to take up one point with the noble Lord. I asked him what evidence the Government had of abuse. He replied that the evidence lies in the mail bags of Members of another place. I have been a Member of another place and so has the noble Lord, Lord Boyd-Carpenter, and many others. We all know about the abusive and semi-charging letters that arrive as regards which no evidence can be produced. It is sheer
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hearsay evidence and, on the basis of the noble Lord's answer, obviously the Government have no evidence whatever, except on hearsay, and that is no evidence.
Lord Elton: My Lords, if the clock is right, we have spent 28 minutes on this. Perhaps I may just reply to that point. If, in fact, it proves that there has been no abuse, of course there will be no gains. if there is a gain of £6 million, then there has been an abuse. We believe that there has been £6 million-worth net of abuse, and that it is worth recovering.

Legal Aid Bill [H.L.]
Second Reading debate resumed.
4.20 p.m.
Lord Hooson: My Lords, at 2.15 this afternoon one of my colleagues informed me that he intended to be in the Chamber this afternoon because he understood that I and other loyal Members of your Lordships' House were going to savage the noble and learned Lord the Lord Chancellor. When I asked him why this should be so, he told me that he understood that both branches of the profession were up in arms at the noble and learned Lord in general and in respect of this Bill in particular. I expressed a certain degree of astonishment because I was armed with the letter from the Law Society which says:
"You will see from the note that The Law Society generally welcomes the terms of the bill which relates to criminal legal aid".
I also received a manuscript letter from the Senate of the Inns of Court and the Bar, informing me that the Bar raised no questions with regard to this Bill.
I was then advised to repair to the Library to gird my loins, as it were, for the fray and to read The Times, which I did. I read the article and the leading article. I must say that though the noble and learned Lord the Lord Chancellor was put in mind of Greek mythology, I thought that it was a piece of English mythology, as it seems to me that the articles have nothing to do with the Bill before your Lordships' House today.
Indeed, the leading article in The Times refers to two omissions in the scope of legal aid; namely, that legal aid should be provided before mental health tribunals—a matter with which I entirely agree, but which is the subject matter of an amendment in my name tomorrow on the Report stage of another Bill coming before your Lordships' House. The other suggestion is that the Government should implement the provision in the Children Act 1975 to provide legal aid for parents whose children might be put in care. I believe that that should be implemented. But it has nothing to do with the Bill before your Lordships' House today.
To a degree, this Bill reflects the recommendations made to the noble and learned Lord the Lord Chancellor in January 1981 by a joint working party of the Law Society and the Senate of the Inns of Court and the Bar. Indeed, those recommendations were based on four principles, and it appears to me—and here I speak on behalf of both my party and the Social Democratic Party in welcoming the Bill—that those four principles have been met. They were that:

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"Criminal legal aid ought to be subject to a measure of control and discipline analagous to that already applied in the civil field".
Legal aid has worked very well and under control in the civil field, and I think that it is advantageous to society generally to extend control in this way.
The second principle was that:
"The funds available should be concentrated on proper preparation of cases by solicitors and counsel, which in turn will lead to more economical presentation".
That appears to be met. The third principle is that:
"Work that is not necessary for the attainment of justice need not be done and its cost should not fall on public funds".
That is a principle with which I think we would all agree. The fourth principle is that:
" Work that needs to be done should be properly remunerated. Inadequate remuneration tends to encourage incompetent work ".
Therefore, it seems to me that this Bill is much needed and fills a gap. The only unsolicited observations that I have had on the Bill have come from the Child Poverty Action Group, and the noble and learned Lord, Lord Elwyn-Jones, has already referred to the recommendations. I agree with him that their comments need to be read carefully. I received their comments only today and I have not had time to digest them properly. Any points that I wish to raise on their paper I should like to raise later, save for one point.
The Child Poverty Action Group raises the question of the legal representation of children—that is, the granting of legal aid to children—and the provisions of Clause 4(3), which reads:
"In a case where the legally assisted person has not attained the age of sixteen, the court may, instead of or in addition to making a legal aid contribution order against him, make such an order against any person who is an appropriate contributor in relation to him and whose disposable income, or disposable capital exceeds the limits referred to in subsection (1) above".
This really means that parents will be called upon to make a contribution, and the Child Poverty Action Group makes this comment:
"We are particularly concerned that parents of children who are charged with offences will be tempted not to suffer the financial penalty of a contribution and let their children be unrepresented".
I think that it would be entirely wrong for the child not to be represented legally, because the parents would be virtually disowning him or her, or at least refusing to undertake to pay any contribution. I think that the noble and learned Lord the Lord Chancellor should give the House an assurance on that particular point.
I think that the duty solicitor scheme, which is encompassed in Clause 1, is very welcome. This is really first aid and advice for the accused person. Very often the solicitor who sees the sometimes rather confused person in the precincts of a court and is able to tender advice to him, can render a very considerable service, and often does so. Of course, people tend to forget that a person may have no defence but he may be confused about the situation. Talking to a solicitor in those circumstances might save a great deal of time because very often he simply does not have a defence.
With regard to the legal aid costs, I should like to make this point to the noble and learned Lord the Lord Chancellor. It is the experience of the Bar that taxation skills have been somewhat lacking when one comes to the taxation of legal aid bills. In the old
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days, as the noble and learned Lord will remember, the clerk of assize or his associate, or the clerk of the peace, taxed the bill in what would today be a Crown court matter, and they were very well aware of the complexities of a case and did not judge the complexity of a case by its length. Many counsel and solicitors who have been rather economical in their approach have felt themselves to be penalised because so many taxation masters—who are not skilled and have never practised at the Bar and who have never actually observed the practice at the Bar—have tended to judge the complexity of a case by the length of time it has taken. More skilful advocates or more skilful solicitors will often dispose of a case in half or a quarter of the time that others might take and are consequently penalised on the question of costs. I think that this matter needs looking into.
On the listing arrangements to which the noble and learned Lord the Lord Chancellor referred, again I think that very often there is a lack of liaison between those responsible for listing and barristers' clerks and solicitors generally. In the old days much was done between the judge's clerk, or the clerk of the peace in quarter sessions, and barristers' clerks, so that they were often very much better informed than people are today as to the likely length of a case, which cases were likely to collapse or go short.
I want to raise this last point today, because most of the points that I wish to raise are largely Committee points. It has been suggested to me by a number of people that it is grossly unfair that provision should be made whereby a contribution to legal aid is required when the legal aid certificate is initially granted. That is, it is said, that people are penalised before they have been tried. They are expected to make a contribution towards their legal aid costs in anticipation of the trial. It is said that this conflicts with the principle that a man, or woman, is presumed to be innocent until proved to be guilty. Of course, it is nothing to do with that. If you are not qualified for legal aid and go to seek legal advice, almost certainly your solicitor would require a contribution. Indeed, in civil legal aid cases when an assessment is made of income and capital and the contribution is assessed, then the person so assessed is expected to make an initial contribution and to pay instalments.
It does not appear to me that there is anything wrong in principle in this Bill provided the means whereby contributions on criminal legal aid are extracted, as it were, from the beneficiary of the legal aid when the legal aid certificate is granted and before his, or her, trial. As a result of the trial of course the judge can be in a position to sort matters out and to return the contributions, if that is the appropriate case, and indeed to award costs against the prosecution if necessary. It does not appear to me that there is anything wrong in principle on this matter.
The last point—I am making two last points, I am sorry to say—is that it appears to me that from time to time it is difficult to assess the means of certain people who apply for legal aid. I often think of the case of some pornographers and their managers. The manager is often the chap who is charged. He applies for legal aid and is granted legal aid. His employers are a limited company, often with a small

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capital, and nothing is known about them, and often legal aid is granted in that kind of circumstance.
I am only giving that as an example of the difficulties sometimes encountered in assessing the means, or the true means, of the people who have offended. I wonder whether the Lord Chancellor has directed his mind to this particular problem, because the legal aid fund must lose enormously during the course of the year on cases of that kind. Having made those short points, may I say that this Bill is to be welcomed, and I am glad to hear the Lord Chancellor say that it is the first instalment of a process on which this House will be embarking over the years of improving the legal aid system generally.
4.33 p.m.
Baroness Macleod of Borve: My Lords, in view of the fact that every other speaker in this debate is a professional person who is qualified in the law, it is with a great deal of temerity that I rise shortly this afternoon. Your Lordships may, quite rightly, ask me why. It is entirely because—as the noble Lord, Lord Hooson, mentioned—that I read in The Times this morning (which was printed when it was thought it was not going to be) two articles which have no bearing on this Bill. As a humble magistrate I thought that I had better contribute a few words. That is not to say that I have not taken advice. I have asked the advice of many people throughout the country during the morning.
It is as a magistrate that I welcome and support the intentions of the Bill. I surmise that all those who have sat in a judicial capacity at whatever level would agree that every case is different. When one comes to giving legal aid not only is every defendant and his case different but one must admit that courts also vary, magistrates vary, and the clerks, though of high standard, can also vary. Therefore, I can only speak briefly of my own court, which was a busy court, and five courts sat five days a week, and sometimes on Saturdays.
The object of all magistrates' courts, and indeed all others, is, to the best of our ability, to see that justice is done. However, the courts' time is precious, and also expensive. It is in this context that I should like to pay my tribute to the duty solicitors, whose help and advice the defendants, and we as magistrates, have had in my court for many years. A defendant will come before the Bench and plead guilty. You realise quickly that he does not know what he has pleaded to, and you stand the case down for an hour or two and the duty solicitor kindly gives him advice. He comes back with him into court, and is then able to see that justice is done.
I am delighted to hear from my noble and learned friend the Lord Chancellor that 130 courts now have duty solicitors, but I would suggest that that is nowhere near enough. Other courts should have the benefit of this advice in emergencies where, if you did not have that advice, as one noble Lord has already said, justice might not be done and also justice would have to be put off and the case remanded for legal representation.
Legal aid to me has been most profitable in the juvenile courts, of which I was a chairman for many
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years. Take the case of six small burglars—and there are lots of cases around today of six small burglars. They do not all come from the same social background. Some of them can come with, and be schoolmates of, those whose parents can afford to pay and do pay, but I would hate to take a case in which a child was not represented because the parents could not afford to pay. There are many other cases like that. I shall not allude to the parents of the child who might be taken into care because, as the noble Lord, Lord Hooson, said, that is not part of this Bill.
Legal aid is costly. The idea of this committee at the magistrates' courts' level is a good one so long as it does not delay justice. It is possible that because it has to go first before a clerk as well as a magistrate that it might be delayed. I would hope not, but at the same time one has to watch not only the cost of a delay but also from the defendant's point of view he wants the case to be over with as soon as possible and to know whether he is going to be able to get legal aid.
On reading Section 1 of the 1974 Act, I wondered whether the amount of £24.50 for the disposable income was a correct and reasonable amount today. Under Clause 4 of the 1974 Act, I wonder whether the amount payable is a reasonable amount today. I am pleased that a contribution, where a contribution has to be made, will be made at the beginning of a case. Your Lordships will know that at the end of a case where the defendant has been found not guilty he is absolutely delighted, and the last thing in the world he wants to do is to pay the court the remainder of the contribution that he is supposed to pay, and it is difficult to get it out of him.
Is my noble and learned friend able to say how much the Law Society and Lord Chancellor's Department are in default in respect of the many cases where legal aid has been given and the amount that should have been paid by the defendant has not been paid? I appreciate that may be a difficult figure to provide. Like other noble Lords, I hope—certainly against The Times—that the Bill will go through, perhaps amended, speedily so that justice will be seen to be done. Legal aid provides a great service; I have seen it in operation and I commend the Bill.
4.41 p.m.
Lord Gifford: My Lords, this Bill is introduced at a time when there is unprecedented public disquiet being expressed about the workings of the legal aid scheme generally. The Law Society in their recent annual report expressed themselves in terms very unlike the normal mild tone of that body. They said, referring to the whole of legal aid, both civil and criminal:
" The continued failure to make a move in virtually, any direction in the legal aid field, even when reforms are almost universally agreed to be desirable, stultifies the legal aid scheme".
The Law Society Gazette took up the attack with an article headed "Legal aid: Five fruitless years" and, as noble Lords have said, The Times this morning has joined in, not talking (except in a small passage) about the civil scheme; talking very much about the Bill and describing it as unduly negative and unconstructive. The noble and learned Lord may not think he is at bay, but some very unlikely wolves are beginning to howl around him. I do not think they

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will be kept away for very long by the proposals in this measure, certainly not unless it receives substantial amendment in Committee. As the noble and learned Lord said, it covers four areas. Of those, three have proposals which are positive but which do not in many cases go far enough, and one is entirely retrograde.
The system of criminal legal aid—let us say this straight away—is by and large a good system; a person accused of serious crime has the right to the solicitor of his choice, and if he does not have the barrister of his choice it is rather the fault of the listing system than the system of legal aid. The system has defects, and my list is not the list which the noble and learned Lord gave. Indeed, at least two of his I thought were merits rather than defects in the legal aid system. The first defect he mentioned was that there was no form of test of merit before legal aid was granted. I hope he will not pursue that in some subsequent piece of legislation. It would be intolerable if a committee were to decide whether a person's defence has merit before that defence has been put before the court. The noble and learned Lord also suggested there was a defect in that a recipient of legal aid could freely change his solicitor. Again, it would be intolerable if there were not the same right of free choice of lawyer under the legal aid scheme as there is with any other form of professional adviser.
The two defects to which I would draw attention are both defects which can, and I hope will, be tackled in the Bill. They both occur mainly at the magistrates' courts level. The first is that there are too many people who do not apply for legal aid in the first place. They do not have a lawyer; they do not know how to go about getting a lawyer; they want to get the case over quickly; and before they realise they would have benefitted from legal representation they have pleaded guilty or have been sentenced and it is too late. That is the defect which the duty solicitor scheme is seeking to tackle.
The second defect is that when people do apply for legal aid, whether or not they receive it depends on the discretion of the court, a discretion which is exercised in extraordinarily different ways from court to court in different parts of the country. The tables were published recently in the Bulletin of the Legal Action Group and they make extraordinary reading. If you live in Reading, you are in a town where only one in 100 people are refused legal aid; if you live along the M.4 in Slough, you are in a town where 28 out of 100 people are refused legal aid; and one could go on multiplying that sort of discrepancy all over the metropolitan area and throughout the country. The difficulty with that sort of arbitrary refusal is that there is no right of appeal.
The Bill as drafted does not, I think, deal even with the first of those problems. It proposes that the duty solicitor scheme should be put into the framework of a Law Society scheme. I say at once that I welcome the introduction of duty solicitor schemes, even though the quality of service offered is patchy from court to court and scheme to scheme, and I would welcome any move to strengthen those schemes. However, what I understand the Bill does not do is provide that there shall be duty solicitor schemes in all the courts of the land. At present there are courts which refuse to allow duty solicitor schemes to be operated by the Law Society; Malborough Street will not allow duty solicitors in, nor will West London Magistrates' Court, and there
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are a number of others. If we are to tackle duty solicitor schemes by a statutory framework, we must do it properly. The noble and learned Lord has responsibility for the courts as well as for the legal profession and I do not see anywhere in the idea of a scheme run by the Law Society any solution to the defect that there are courts which will not accept duty solicitors schemes.
The second observation that must be made about the proposal as drafted is that it seeks to impose a form of control over duty solicitor schemes through the Law Society area committee—so far so good; there should be control over these schemes because they can be abused—but the only people who will be sitting on the committee which imposes that control will be the lawyers of the area committee plus, under the Bill, a magistrate and a judge's clerk. That is not a sufficiently wide or representative committee. Many lay people know about the operation of magistrates' courts—from, for instance, the probation service, citizens advice bureaux or committees of law centres—and there should be an independent lay element on any committee responsible for monitoring and controlling the quality of duty solicitor schemes. We should not leave it only to the lawyers and the court personnel. Those are therefore the amendments that one would need in order to make real progress, not just by placing duty solicitor schemes into a different kind of structural framework, but by making their coverage complete and by improving their quality.
The second topic of the Bill concerns the making of legal aid orders covering both magistrates' courts and Crown Courts. On the surface, that would seem to be a perfectly logical and sensible proposal, but there is one thing that must be thought of. The lawyers do not get paid until the end of the case, and the lawyers who do the work in the magistrates' courts on committal proceedings are either solicitors or young barristers who are struggling at a time when they have very few ways of earning a living. At the moment they can be paid at the conclusion of the committal proceedings, because the legal aid order runs out at that time. But, if the legal aid order is to run right from beginning to end of a trial that might last for many months, or even a year or two, as some do, and the lawyers, in particular the young lawyers, will be kept waiting for their money, then that needs to be looked at, possibly by way of amendment.
The third area is the part of the Bill which gives new powers to the Law Society committees to take decisions which up until now have been taken only by magistrates. For instance, one of the powers is to decide upon the revocation of legal aid orders. This is the area of the Bill in which one needs to insert power to deal with not only revoking orders, but also granting orders, at least granting orders where the court has refused legal aid and the applicant is dissatisfied. I quite agree with the noble and learned Lord when he says that there are times when it is difficult for the magistrates' court to appreciate all the circumstances; the natures of both the prosecution and the defence are not known. If a power of appeal or review is inserted in the Bill among the other powers which are given to Law Society area committees, then we could deal with what I have contended is one of the most serious defects of the legal aid scheme.
I know not how many deserving cases are refused

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legal aid unreasonably. There might be a few, there might be many. If there are many, there is certainly scope for a review. If there are a few, the provision of a review would not increase the amount of time and the costs involved. But, whatever the position, we need a system of review of refusal by magistrates of legal aid.
Finally, we come to the new provision for contribution orders. I fail to see what makes this part of the Bill at all necessary. The present system provides for the making of a legal aid order subject to an assessment of means. There can be a down payment at the beginning, if the court so decides. But the time when the contribution is really decided is at the right time, the end of the case, when the judge, or the magistrate, is in a position to see whether the accused person is guilty, whether he has been sent to prison, and whether he has other commitments, such as fines or compensation payments.
The provision under the Bill is that the accused person will have to pay for representation by instalments, month by month, up to the time when the trial takes place. Let us remember that this is a person who is presumed to be innocent, who will already be facing a very severe ordeal; the time spent waiting for trial is a most anxious period. The likely outcome of a proposal such as this is that in many cases the offer of legal aid will be refused because, in particular at a time of recession, such as now, the person is not prepared to suffer the order to pay regular instalments. That is very serious. There is a very high failure to take up offers of legal aid, even in the civil system, when a contribution is being ordered, and it would be much more serious in the criminal system.
When one looks at the details of how the proposed scheme will work, one sees that it will be a disincentive to the honest person, who will pay the instalments, while the dishonest person will see that there is a provision tucked away, in I think, Clause 6 of the Bill, which states that the order to pay the contributions will not be enforced until after the case is over. Such a person will not pay the contributions, and then, facing trial at the Old Bailey on a serious charge, when all the preparation has been carried out, will say, "Revoke my legal aid order, if you dare, and leave me unrepresented if you really think that that will be in the interests of justice".
It will be a bureaucratic nightmare. When people are acquitted, their contributions will normally be refunded, imposing a double process of collection and then refund where at present there is nothing at all. What will all this be achieving? It will be achieving the end—the noble and learned Lord said it—of receiving contributions a few months earlier than would otherwise be the case, because, if the judge orders them at the end of the case, they have to be paid; it is just that they have to be paid later than under the Bill.
In today's debate reference has been made to the Benson Committee. This proposal is no recommendation of the Benson Committee. The Benson Committee found that the system of contributions was inadequate, but it proposed a very trenchant solution.
The committee stated:
"We cannot see that any useful purpose is served by retaining contributions in the magistrates' courts. We consider, however, that they should be retained in the Crown Court. The procedure
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we recommend is that when a defendant has been convicted in the Crown Court, the judge should have a discretionary power to order him to pay a contribution towards the costs of his defence".
That is the kind of reform which would have been in accordance with fairness.
The present proposal would mean an awful lot of work for the bureaucrats, with less fairness to the individual who has to pay at one end and then receive a refund at the other, or who, if in the end he goes to prison, will have paid out money at a time when his family most needed the resources. So far as this proposal is concerned, I hope that we shall scrap the whole thing, and then concentrate on improving those proposals which I have suggested have merit but need considerable amendment.
4.58 p.m.
Lord Mishcon: My Lords, borrowing from his wealth of knowledge of Greek mythology, the noble and learned Lord the Lord Chancellor commenced a most interesting and, as usual, lucid speech by presenting the House with a fearful picture of being torn to pieces by some dogs. I was trying to envisage what kind of noble Lord would ever succeed in tearing the noble and learned Lord the Lord Chancellor to pieces, and I certainly do not want to envisage myself in that capacity. Incidentally, borrowing, if I may, from the study I have made of the noble and learned Lord's illustrious career, I found it most strange that he should refer to a lady who was bathing in modesty. I seem to remember an episode, to which I shall not refer your Lordships at any length, in which, if I may say so, the noble and learned Lord when bathing was announcing his presence with the sound of bells. But as I have said, I do not want to take on the task of baying at the heels of the noble and learned Lord, or certainly not of biting at his presence. I want to appear in another canine capacity and merely stand on my hind legs and beg for some more morsels of help in regard to legal aid.
It is perfectly true, as my noble friend Lord Gifford said, that the whole aspect of legal aid in this country, criminal and civil, has been looked upon with some criticism over recent years. It is also perfectly true—and it is only fair to say this in regard to The Times article, which was looking at the whole of legal aid—that they had before them two reports which are fairly recent. In fact, they were delivered, I believe, on 29th January of this year; and, of course, it was not just the Law Society which delivered its report, it was the Lord Chancellor's Advisory Committee on Legal Aid, who make comments on the Law Society Annual Report and add their own comments. It is fair to say that both of them were highly critical of the whole field of legal aid and spoke of what is needed in order to fill the many gaps that there are in it.
Your Lordships can find that, of course, in regard to every social field, and one has to have regard to the fact—the last Government had to have regard to it—that there is a limit to the national purse. It is quite reasonable, of course, to have that aspect in view. But one cannot help wondering—and I say this to the noble and learned Lord hoping, indeed, that he may agree with me—whether there are not many savings that could be made and much administrative tidiness which could be achieved; for example, if one got rid of the extraordinary departmental way in which we deal

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with legal aid and law reform, with various organisations looking after different aspects of it with, with respect so far as I can see, very little co-ordination in many respects.
It would be true to say that the untidiest bit of administration appears to be when the Lord Chancellor's Department—and I say this with great deference—is loaded with the expense of legal aid in magistrates' courts and juvenile courts but has not got the administration of those courts within its department. I would have thought that that was a tidying up process most devoutedly to be desired. I remember my noble friend Lord Gifford saying, in the course of his interesting and forceful speech, that there were some magistrates' courts which shut their doors to duty solicitors. That, one would have thought, would be looked after by one department which deals with the administration of legal aid in magistrates' courts and at the same time administers the magistrates' courts and their procedures. This may be a tidying up process and, indeed, a process of economy in regard to criminal legal aid which may be of use in the future.
There is no doubt about it, that a great deal of the cost of criminal legal aid is due to very serious delays in the magistrates' courts, causing a great deal of expense and inconvenience. But, having talked in terms of trying to save money in order that more can be done for criminal legal aid, I wonder whether the noble and learned Lord the Lord Chancellor will be kind enough to give his customary courteous attention to two things which have been talked about in regard to criminal legal aid and the economies which might be effected.
The first one relates to the question of bail. Anybody who has had the slightest practical experience of an appeal from the magistrates' courts on bail knows perfectly well that the following things are very likely to occur. First of all, the magistrates, when they refuse bail, very often find that when the matter goes to the Crown Court the Crown Court judge grants bail. Indeed, I was reading an article only recently—and I do not think it is in any way an exaggerated article—which talks in terms of the very appreciable numbers of cases in the Crown Court where the Crown Court judge allows bail.
My Lords, I am not talking about saving room in our prisons. That is a matter not for this debate, although it has been a matter which has concerned your Lordships more than once in recent times; but if, instead of going through the quite expensive procedure of going before a High Court judge on an appeal on bail, one went to the Crown Court judge in chambers, the cost which would be saved would be quite effective. That is one of the things that I hope the noble and learned Lord will take into account when dealing with some of the economies in relation to criminal legal aid.
The only other example I believe I would want to mention is the committal procedure; and, indeed, my noble and learned friend Lord Elwyn-Jones referred to it in the course of his, as always, helpful and excellent speech. On committal procedures, your Lordships may remember that there was, of course—and this has been referred to—a Philips Committee. Very little, if anything, has been done about the recommendations of that committee, and that, too, was
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referred to by my noble and learned friend. But there is one aspect I would refer to as an example to show that these procedures have got to be looked at so that we can afford more for legal aid in regard to the yawning gaps which exist and which have been pointed out in the two reports that I have talked about.
Your Lordships may be quite astonished to know that, even where committal is with the consent of the accused, under Section 6 of the Magistrates' Courts Act 1980 the solicitor must attend court in spite of the fact that he has no application to make to the court whatsoever, and certainly no application for bail. This is a complete waste of money and of time. If only one could find—and it should not be hard to find it—a very sensible administrative procedure where bail is not in issue and where the defendant and his advisers say that, indeed, committal must follow, surely there need be no attendance whatsoever and an administrative regulation of this kind, doing injustice to nobody, could be made.
My Lords, I have talked about economies, and I have tried to suggest a couple in regard to criminal legal aid; and now I trespass upon your Lordships' unbounded patience by saying that I do not think it is quite irrelevant, when one is talking, as my noble and learned friend said, of an aspect which is one of the foundations of our very proud system of justice, to say that this is a proper title for legal aid. Indeed, when one hears the cry of law and order—never perhaps more needed in our country—should it not be a cry for justice, law and order?—because the three things must go together.
It is a fact that when we are dealing with criminal law we are obviously dealing with the reputation and the freedom of the subject. Is it really trespassing over boundaries which infringe your Lordships' rules on a Second Reading debate on a legal aid Bill to say that there are two such important aspects? With great respect to my noble friend from the Liberal Benches, there are two aspects which impinge upon liberty and which impinge upon so much of what is important to a subject. One is the infringement of liberty of somebody detained under the Mental Health Act—a tribunal for which we on these Benches pleaded, a tribunal which is such an important tribunal—without the right of a legal representative to argue, under legal aid, for liberty. We were told by the Government that they could see that this was a proper plea but that this was not a matter that the Government could deal with; it was a matter for legal aid procedure and questions of finance had to be taken into account. My Lords, if I cannot raise it now, when can I? If I started to raise it under the Mental Health Bill or my noble friend does so under his amendment, we should be referred back to the Lord Chancellor.
I enjoy a game of football, but not when I am the football. This is how I feel in this position. What could be more important in the whole of the structure of our society than family life and the right of parents to have their own children with them? When that right is attacked by all the power of the local authority, in most cases quite rightfully, endeavouring to remove a child from the parents, are we really operating a legal aid system when the parent is not entitled to legal representation to argue his own case?
My Lords, economies may pay for these things.

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They are very vital and on a Second Reading of a very important Bill I believe that I am entitled to raise them. But, as my noble and learned friend has said, and he speaks with much more authority than I, the Opposition, for its part, favours the Second Reading of this Bill.
5.12 p.m.
The Lord Chancellor: My Lords, the points raised by noble Lords and by the noble Baroness who have taken part in this debate are so numerous and so different that I think I have got myself into an almost irreparable muddle with my papers. I think, however, that the fox has escaped the hounds on this particular hunt. Indeed, the noble Lord, Lord Hooson, whose constructive contribution I much welcomed, pointed out he thought they were mostly on a false line; so that my difficulties are to some extent reduced thereby. The noble and learned Lord, Lord Elwyn-Jones, was, I thought, extremely friendly and helpful about most of the things that he said. He knows very well that between us there are not many differences of philosophy about the application of legal aid and that I took on the system which had been developed under him and that I am doing, stage by stage, my best to improve it.
If the criticisms which were levelled in the Law Society Gazette and the Guardian newspaper are applicable at all, they are applicable to a period of five years, two and a half of which were spent under him and the rest under me; so that we both have our backs bared to the rod if there is a rod legitimately to be applied—which I personally doubt; because at the end of the day there has been no attempt to dispute the proposition with which I began, that over the last 10 years, and confining myself solely to the subject of criminal legal aid, under the system for which both parties are equally responsible, the expenditure on it has risen from £8 million in a year to £100 million in the current year.
Very few, I think, of the criticisms can be described as fair when the fact is that four successive Lord Chancellors—two of whom were me—have been presiding over a system which is the fastest-growing system of social service at present existing in the country when we have to compete against the demands (which have legitimately so much more political sex appeal) of education, health, defence, pensions and lower taxation. I do not think that the case for the hounds has been made out. To be fair to The Times, they are suffering from the loss of their legal correspondent and I hope that they find another.
The noble Lord, Lord Elwyn-Jones, asked me a number of questions. One of them was about law centres. As he remembers, he bailed out seven law centres and I have kept them on just as he preserved them. The other law centres mainly come under departments different from mine and they are currently the subject of discussion. They play a part—of course they do; and an important part—in the systems of legal aid that we operate. I should like to develop this at much greater length. I visited one of the seven—namely, the one at North Kensington, with which I believe the noble Lord, Lord Gifford, has some connection—and I was much impressed with the dedication of the young people who were serving it. But I do not think that one can deal with it on the subject of a Legal
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Aid Bill except to say that they perform a useful service. What permanent part they will play in our legal aid system I think it is a little early to say, but I shall be very sorry to see any of them lose for loss of funds. Most are funded by a source very different from my department.
I think that one must look at the Benson Commission Report, to which reference also was made in the light of the Benson Commission view (with which personally I happen to agree) that these centres by themselves have to be reviewed against the chain of citizens advice bureaux rather than in isolation as a separate subject; because the idea of law centres without an appropriate chain of what one might call advice centres generally, which are formed by the citizens advice bureaux, and providing perhaps a legally-specialised annex to them, is not one which I think I should be prepared, on the whole, to endorse. But I hope that we may have time, sometime later in this Session, and in one connection or another to revert to that.
The Philips Commission again raises a question which I cannot answer at any length and for a reason which has emerged again and again during this debate. That is, the division of ministerial responsibility between the Lord Chancellor's Department and the Home Office. The Home Office is responsible for legal procedure and the magistrates' courts. Whether this is an ideal arrangement is something about which I am more entitled to speak freely in Opposition than when I am in office. But some ex-Lord Chancellors have sometimes thought that perhaps the perfect frontier has not been reached. Changes in legal procedures have to be announced by the Home Office and carried through by the Home Office Minister. I am told that the answer on Philips is that the Government are not yet ready to announce their decision but that the report is under "active consideration". According to "Yes, Minister", that means that they have lost the file but are trying to find it. I cannot believe that this is more than a wicked satire.
As far as committal proceedings are concerned, I hope it will be possible for an amendment to be moved to the Criminal Justice Bill removing the need for solicitors to attend on uncontested committals. That deals with one of the welcome points also raised by the noble Lord, Lord Mishcon, in his speech. So far as the revocation of legal aid is concerned, it arises when a defendant requests or a solicitor withdraws from the case and the defendant's conduct is such that it is unreasonable to assign new representatives. The Committee will only revoke—and the fact that the Committee will be responsible probably gives better protection than exists at the moment—where the court is not satisfied that it is reasonable to assign new representatives. The involvement of the Committee thus increases the defendant's protection.
Regarding contributions in the context of the Child Poverty Action Group's criticisms, regulations that we propose to make will substantially increase the income levels below which no contribution can be ordered. They will thus help defendants and to that extent—though I do not hope to satisfy him in the entirety of his complaints—I would go along with the noble Lord, Lord Gifford, and others.
The provisions of Clause 4(3) regarding legal aid for children preserve the existing powers under Section

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32(2) of the 1974 Act. The court will not be obliged to take parents' means into account, and I would not expect them to do so where the parents are effectively disowning the child by refusing to co-operate. The court even then will be able to give legal aid to the child. Of course, if he was effectively disowned by the parents, he would be virtually without means.
My noble friend Lady Macleod raised a number of very welcome questions. I was particularly glad for her contribution to the debate, for she was—as she rightly said—the only legally unqualified person taking part in it. I should like to write to her about her queries. I shall see that is done. Although the noble Lord, Lord Gifford, claimed that he was one of the wolves that would not be kept at bay, he has not really thought out one or two fundamental questions about the philosophy on which legal aid is granted. The object of legal aid—I am not talking simply about the criminal but also civil legal aid, and indeed legal advice and assistance—is not to provide a free social service to everybody. It may be that we shall come to that one day. I do not think that would be desirable; but that is neither here nor there.
From its inception with the report of the Rushcliffe Committee, the philosophy of legal aid of all kinds has been an attempt to put an assisted recipient and litigant, whether in civil or criminal proceedings or non-contentious advice, in the same position as he would be if he were unassisted. This is something which should be recognised throughout the whole system which we are trying to administer. That is to say—take the ordinary civil case—if he brings an action against an impecunious defendant and is made to pay a contribution, he will not get his contribution back in a civil case. An unassisted litigant can, as the noble and learned Lord, Lord Denning, pointed out the other day, be made the subject virtually of a persecution by an impecunious plaintiff and if that impecunious plaintiff loses without means and without merits, the unassisted litigant will be put to enormous cost which he will not be able to recover unless a special order is made by the court enabling him to recover it out of the legal aid fund.
There are many aspects about litigation which are unsatisfactory, and they are not likely to be made satisfactory in the immediate future. I do not see any reason why a person who happens to come just below the eligibility limits should not be made to make a contribution which he will get back if he is acquitted.
When the noble Lord, Lord Gifford, says that it will be intolerable if any kind of merits test is applied, does he really mean that one should not inquire into the means of a person? Does he really mean that the kind of consideration that one puts to one's client when one is appearing in a criminal case, when a frivolous plea is suggested, should not equally apply to the assisted client? When he says that it would be intolerable that he should not be able to change his solicitor or barrister as often as he liked at the taxpayer's expense, does he really mean that every time a person receives unpalatable advice he can go shopping around at the taxpayers' expense to get a new representative who will be less honest and more pliable? I do not think he does. I simply give him the credit of not having looked into the matter as deeply as he will one day.
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He raised a matter which has given me both some concern and to some extent complaint. As he rightly says, there are one or two courts which will not in fact allow duty solicitor schemes to be introduced. I think that they might be wrong in refusing to do so. Those courts purport to justify their attitude by questioning whether the availability under the ordinary legal aid scheme of solicitors who practise opposite their doors is not sufficient, and they have raised questions about the competence of those who would otherwise appear as duty solicitors. I have always encouraged duty solicitors' schemes. The effect of the Bill will be to allow the Law Society to bring their influence to bear, as well. That is a good thing. I am always reluctant to use the big stick when persuasion and courtesy will achieve a like result with the goodwill of the profession concerned, and the Law Society has been of great assistance to us.
Frankly, at the moment I am not impressed by the suggestion that we should abolish contributions in magistrates' courts altogether. The revenue is not big; it is about £1 million. I suppose one would save a very small proportion of that in administration costs; but I personally follow the main philosophy which is that the assisted litigant should be put in as good a position as the unassisted litigant with due account of means.
I have already dealt in passing with some of the valuable points—not all—raised by the noble Lord, Lord Mishcon. I have told him already that we hope to abolish the need for defence solicitors to attend court on a formal committal in an amendment to the Criminal Justice Bill.
There is a waste of money caused by solicitors having to wait for their case to be called on. I am told that the waste is of the order of £8 million a year, which is a not insignificant sum. It is something with which, by means of better listing, we hope to cope. One of the aims of the Bill, as I have indicated, is to improve the listing arrangements in the Crown Court by the provisions of the Bill by getting information early enough to know what cases are likely to run on and what cases are likely to go short or break down.
I fully acknowledge the problem about an appeal from a refusal by a magistrates' court in the grant or refusal of bail. There is, of course, an appeal by civil legal aid to the High Court and that is something which is subject to a merits test; but it is not my last word in the matter. I recognise that arrangements are not entirely satisfactory. There is a case for providing a defendant who has been refused bail by a magistrates' court with an early opportunity to apply for bail to the Crown Court, but the precise form of any such arrangement would require further consideration. I understand that an amendment to the Criminal Justice Bill to provide such an avenue of application has been put down in another place. I can only say at this stage that the amendment is under consideration.
I am particularly sympathetic to the suggestion, which is quite rightly made in a rather technical matter outside the scope of this Bill, that legal aid should be available to parents in child care proceedings. This has caused me considerable concern. The cost would be about £1 million. I put it rather high on my list of priorities, but, with so many pressures on the way in which existing forms of legal aid are being constrained

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for one reason or another, I do not think I can give a positive promise with a timescale attached at this stage. But I consider the case to have been made out and I shall look upon it sympathetically as and when resources can be made available. That is the best I can say about it.
With the Mental Health Act, I seem to have lost the file—which means that the matter is under consideration—but I think I can say that there is a less formidable case here than that which I have just mentioned about child care. The belief in legal representation in regard to mental health is something about which I cannot speak from personal experience. It is certainly touching to a professional advocate to know that there is this confidence in legal representation.
The mental health tribunals, so far as I know, have a rather different function in some ways from an ordinary court although they have, quite rightly, been described for the purposes of the European Convention on Human Rights as an independent tribunal. Most courts use representation and direct their inquiries either to something which has happened already, or to the application of legal principles to a defined set of facts. The mental health tribunals do try to peer into the future. I am not myself quite sure how far either the advocate or the judicial procedure is suitable for that kind of inquiry, but I am advised that there is a case for representation before mental health tribunals and I will certainly convey to those who are responsible for them the views which have been expressed in this regard.
There is at the end of the day a general feeling as a result of this debate that this Bill will provide a genuine advance on something which has been built upon before, and I think that is the right conclusion to draw from it. I cannot promise the noble Lord, Lord Gifford, the kinds of radical reforms he asks for. Successive Governments have built on these foundations and I am afraid that so long as I am here I shall have to go on building. I do not think I can say more than that.
I am grateful to the House for the courteous way in which this Bill has been received and I hope we shall have interesting debates on Committee. Certainly I shall ask those who advise me to go through the debate and see what points I have not dealt with, and write to the noble Lords concerned, because I am perfectly sure there are aspects with which I have not dealt. I shall try to see that those defects are remedied. Having said that, I beg to move that the Bill be now read a second time.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Marriage (Step-parents and Step-children) Bill [H.L.]
5.35 p.m.
Lord Lloyd of Kilgerran: My Lords, I beg to move that this Bill be now read a second time The objective of this Bill is to enable certain courts to consider applications for leave for a marriage to take place between step-parents and their step-children, and for connected purposes. I think it is accepted that the
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present procedures for enabling step-parents to be married to their step-children are clumsy, expensive and inadequate in the social conditions in which we find ourselves.
As your Lordships know, the procedure at present is that the applications must be made through both Houses of Parliament by means of a Personal Bill. It is about 18 months ago—indeed it was on 22nd May 1980—that I had the privilege to present to your Lordships a Personal Bill on behalf of a Mr. Berry and his step-daughter, Mrs. Ward, for a dispensation of Parliament to enable them to get married. Mr. Berry and Mrs. Ward were of almost equal age, and in that case Mrs. Ward, the step-daughter, had become the step-daughter when she was a married woman and away from home.
I do not propose to go into the details of the case, but a sympathetic hearing was given to me by your Lordships and this Personal Bill, at great expense to the parties—and a great embarrassment, in view of the procedures—passed through both Houses of Parliament and therefore a dispensation was given to them under the procedures which at present are available only through Parliament. There was strong support among your Lordships for the feeling that the case of Mr. Berry and Mrs. Ward was one of the most deserving cases that could come before your Lordships. But with the support that this Personal Bill had, there echoed throughout the debate statements that this was a cumbersome and unsatisfactory procedure and should be modified somehow or other. It is my submission to your Lordships that a reference to applications of this kind should be made to our courts—the High Court, the family court or the county court—so that the judges of our country could deal with these matters.
May I remind your Lordships that divorce cases used to be the subject of Personal Bills passing through both Houses of Parliament. That was the position at the end of the last century, but now of course social progress, if that is the right word, enables the courts to deal with these matters of divorce in a far more expeditious, satisfactory and, if I may say so, just way. May I refer to what was said during the passage of the Berry-Ward Personal Bill by one or two of your Lordships? The right reverend Prelate the then Bishop of London said this at col. 1046 of Hansard for 22nd May, 1980: He was strongly in support of the Personal Bill and thought that it was a very deserving case. He said:
"… I see no reason why we should not at some appropriate time introduce legislation to make it easier, in such cases as that of Mr. Berry and Mrs. Ward, to be permitted legally to marry, without requiring recourse to such a laborious and expensive process as that of promoting a Personal Bill. I would think that they have been put to much inconvenience, anxiety and cost, in order to bring their desire for marriage before your Lordships' House".
"I should have thought that it should be possible, in such exceptional cases, for the law to provide machinery whereby such a marriage could be permitted without, necessarily, recourse to Parliament".
He went on to mention that such is the procedure in New Zealand that applications for dispensation in regard to affinity could be dealt with by the courts in New Zealand. He continued:
"… I cannot believe that it would be beyond the wit of those learned in the law to devise some way by which persons in a similar situation to that of Mr. Berry and Mrs. Ward could be

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given permission to marry, without having recourse to Parliament".
The noble and learned Lord the Lord Chancellor in a brilliant speech supported strongly the Personal Bill that I was introducing. Your Lordships may remember his brilliant account of the historical background of the development of the canon law, having regard to the marital complications of King Henry VIII. As the Lord Chancellor concluded, he said:
"… after the Reformation the power of dispensation"
with regard to the law of affinity in marriage
"which formerly existed in the Pope fell to Parliament, the Queen in Parliament, to exercise". [Col. 1059.]
He said that that was an unsatisfactory procedure.
I ask leave to quote his further words at col. 1059, when he said:
"But I never thought and do not think now that there ought not to be a cheap, easy and reasonable way of granting a dispensation more convenient than that upon which we are now currently engaged. I do not altogether think that the courts themselves would like to treat such an issue as justiciable unless very proper firm guidelines were laid down by Parliament".
I emphasise the noble and learned Lord's reference to the justiciability of such an application for dispensation of marriage, and his reference to the desirability of firm guidelines being laid down by Parliament, which, as your Lordships will see when I refer to my Bill in detail, I have introduced.
The noble and learned Lord, the Lord Chancellor, went on to say:
"But that there ought to be a power of dispensation I have no manner of doubt, and indeed there always has been.
"The only trouble is that the power of dispensation which exists"—
and he was referring there to the approach by means of a Personal Bill—
"is inconvenient, embarrassing and, as we have discovered this afternoon, somewhat time-wasting in the High Court of Parliament".
He said that, without hesitation, he was supporting my Personal Bill.
Therefore, the Bill which I am presenting to your Lordships is a simple one and not at all cumbersome. It deals with an urgent social problem which is causing real hardship and, as your Lordships may know, there are two cases before the Personal Bills Committee at the present time. It is an easy Bill to put into practice and is reasonable and just.
May I now turn to the details of the Bill? Clause 1 indicates that the court should be capable of authorising marriage. It states:
"Subject to the provisions of this Act, the court may, upon application being made to it in the prescribed form, give leave to a stepfather to marry his stepdaughter or to a stepmother to marry her stepson, notwithstanding that they stand in relation to each other within the prohibited degrees of affinity contained in Part I of the First Schedule to the Marriage Act 1949".
I should explain that the Marriage Act 1949 excludes Scotland from its ambit. Therefore, the Bill with which I am dealing does not apply to Scotland, as is made clear in the latter part of it. When I put this Bill forward, I sent it informally to the Lord Chancellor and his comment was that Scotland should not come within the ambit of this present Bill.
Clause 2 is an attempt to give guidelines or to set conditions regarding the leave to marry. It reads:
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"The court shall not grant leave under section 1 of this Act unless it is satisfied that:—
(i) neither party to the intended marriage has by his or her conduct caused or contributed to the cause of the dissolution of any previous marriage of the other party".
Those are simple words. The court would be able to judge whether it was right and proper, in all the circumstances of the parties and their past position in regard to the previous marriage. The clause continues:
(ii) at no time prior to the application under section 1 of this Act the parties to the intended marriage have lived together in a family during the minority of the stepchild".
It has been pointed out to me that, perhaps, that condition is too exacting, but that may be a Committee point to be dealt with later. The third guideline is:
(iii) the intended marriage will be for the welfare of the parties thereto".
Clause 3 expands what is meant by "welfare of the parties" and is a further guideline for the court. It sets out the circumstances to be considered by the court and states:
"In deciding whether or not the intended marriage will be for the welfare of the parties thereto the court shall have regard to all the circumstances of the case and in particular:—"
There then follow four fairly obvious directions tothe court:—
"(i) the ages of each of the parties to the intended marriage;
(ii) the income, earning capacity, property and other financial resources which each of the parties to the intended marriage has or is likely to have after the said marriage".
Again, that is an obvious safeguard which the court has to consider. The clause continues:
(iii) the financial needs, obligations and responsibilities which each of the parties to the intended marriage has or is likely to have after the said marriage; and
(iv) the physical or mental disability of either party to the intended marriage".
It may be felt that to impose guidelines is too comprehensive, but in exercising its discretion the court must necessarily take into account most of the circumstances which I have set out.
Clause 4 relates to which court is applicable for such an application to be made before it. Subsection (1) says:
"An application for leave under Section 1 of this Act may be made to the Family Division of the High Court or to any County Court within the jurisdiction of which either party to the intended marriage resides".
Subsection (2) of Clause 4 says:
"The Lord Chancellor shall make rules prescribing all matters of procedure in relation to an application under section 1 of this Act and such rules may provide for the application to be determined otherwise than in open court".
In my view, the phrase "otherwise than in open court" is essential. Your Lordships may consider that in order to make the procedure cheaper and less embarrassing to the parties some other procedures ought to be adopted. For instance, it might be more satisfactory if the matters to be considered were dealt with by a judge in chambers. The general position which subsection (2) of Clause 4 attempts to set out is that the Lord Chancellor will be making rules prescribing all matters of procedure.
Clause 5 is a short clause dealing with interpretation and does not require further explanation. It says:
"In this Act, the expressions 'stepson' and 'stepdaughter' shall include children born out of wedlock".

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Clause 6(1) says that the short title of the Bill shall be the Marriage (Step-parents and Stepchildren) Act 1982 and it goes on to say in subsection (2):
"This Act shall not apply to Scotland or Northern Ireland".
This Bill offers a much simpler, much easier, less embarrassing, less cumbersome and more just procedure to enable people who find themselves in the position of step-parent and step-children, in conditions which cause considerable hardship to them, to put their case to the courts instead of having to put it forward in a Personal Bill. Perhaps I ought to declare that I have no interest at all in this matter. In the Berry v. Ward case, I did not see either of the parties. Apart from a letter of thanks from Mr. Berry, I have had no communication at all with them.
As I mentioned the right reverend Prelate who is to speak after me, perhaps I ought now to disclose an interest: that I am a Fellow of Selwyn College, Cambridge, which is an ecclesiastical foundation and that the main draftsman of the Bill, Douglas Day, a barrister of Lincoln's Inn, is also a member of Selwyn College, Cambridge. However, having had the experience of putting before your Lordships a Personal Bill in the Berry v. Ward case, I felt that there was a factor relating to social matters which ought to be dealt with and that people who are in the position of step-parents or step-children should not be put into the embarrassing situation and to the expense of having to mount a Personal Bill before the two Houses. I beg to move that this Bill be now read a second time.
Moved, That the Bill be now read a second time.— (Lord Lloyd of Kilgerran.)
5.54 p.m.
Lord Mishcon: My Lords, when one adds the able advocacy of a leading member of the Bar to the natural persuasiveness of a Welshman, one has indeed a formidable proponent of any cause. I am sure that the House will admire, as I certainly did, the very lucid way in which the noble Lord, Lord Lloyd of Kilgerran, moved the Second Reading of this Bill. It is not the first time that the noble Lord has used his advocacy in a similar cause. As he rightly reminded us, he was a very eloquent proponent in 1980 of the Edward Berry and Doris Eileen Ward Marriage Enabling Bill, which then became an Act.
This House has heard on several occasions arguments regarding marriages of affinity and it has always been a matter of private conscience, as it is on this occasion. Therefore anything that I say is, of course, a personal comment—possibly worthless as a result of that—and in no way binds any of my noble friends. However, when the Marriage Enabling Bill came before your Lordships' House and achieved a Second Reading but fell, if I may use that phrase, at the third fence, I remember so well my noble friend Lord Boston of Faversham using these words:
"… many of us—perhaps all of us—also have sympathy for the view that the relationship of husband and wife is such, is so close, and ties between their two families are so close, that that itself needs to be protected, because the relationships formed are such special ones. Some would not be able personally to contemplate the marriage of step-parent and stepchild in any circumstances. I confess that I am in the unfortunate position of being able—as I dare say we all are—to see both sides of this argument and to sympathise, to some extent, with both of them".
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I am quoting from the Second Reading of the Marriage Enabling Bill at col. 1134 of Hansard on 25th February 1981.
I imagine that many of us, if not most of us, will have precisely the same sort of feeling. Many of us, if not most of us, would take the view, as did the noble and learned Lord the Lord Chancellor on a previous occasion, that this procedure of a Private Bill dealing with the private circumstances of two individuals is an unfortunate, costly, delaying way of dealing with a problem. Personally, I can only say that I believe that this is either a matter which one deals with by legislation, thus enabling marriages of this kind to take place (and that would be contrary to the consciences and beliefs of many Members of your Lordships' House) or a matter where unfortunately one has to admit there is no alternative practical procedure.
The reason I say that is this, and I say it with the greatest of deference to the noble Lord, Lord Lloyd of Kilgerran: to ask the Family Division—indeed, to ask any court—to decide the matters which are contained in this Bill is to put upon our judiciary not only a most unusual task but, in my respectful view, an impossible task. We are accustomed in our courts to an adversarial position where two proponents of a cause argue before a judge on a matter which is at issue, and he then comes to a decision. There are rare exceptions to that rule. May I ask your Lordships to imagine what a judge of the Family Division would be expected to do if this Bill ever became law. Immediately one sees insuperable difficulties. I would refer your Lordships merely to Clause 2(i) of this Bill. The court has to be satisfied that
"neither party to the intended marriage has by his or her conduct caused or contributed to the cause of the dissolution of any previous marriage of the other party".
That presumably means that one has to give notice to the spouse who was concerned in any previous marriage; that one would have to hear what that spouse had to say about the breakdown of that marriage and the cause of it; that one would have to decide that dispute; and that one would be doing it contrary to the whole spirit with which the Family Division now operates as a result of what many people think is the enlightened legislation on our divorce laws.
Some people feel that the word, "enlightened", is a wrong description to give the evolution of our divorce laws, but whether you take one view or another is completely contrary to it, because it means going into the question of who is to blame for the breakdown of a previous marriage between one of those parties. The whole essence of our present divorce laws is that blame is irrelevant; the only consideration is, has the marriage irrevocably broken down? In regard to decrees and matters of that kind, the courts are not interested in apportioning blame.
The next matter which the courts would have to decide is in Clause 2(ii):
"At no time prior to the application under Section 1 of this Act the parties to the intended marriage have lived together in a family during the minority of the stepchild;".
That again is an odd way—and it is mandatory—of deciding justice between two parties. Does it mean that if the stepdaughter, for example, was 17½ years of age when the stepfather came into the family, the marriage is absolutely and completely barred whatever

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the merits, whatever the social consequences, whatever the heartbreaks? But if when he walked into the family home the child was 18 years and one day old, some six months later, then that is a condition which is satisfied under this Bill and therefore the marriage can be sanctified, if I may use that phrase? Then the Bill states:
"(iii) the intended marriage will be for the welfare of the parties thereto".
That is a situation which turns the judge, I have no doubt, into a prophet and in the Family Division of all divisions, it might make him a little sceptical in having to decide that a certain marriage was for the welfare of the parties—but that is the least important of the points I have to raise in regard to the difficulties of throwing this matter into the hands of the courts.
If your Lordships will turn to the second page of the Bill you will see that under Clause 3, the circumstances which have to be considered by the court include, presumably under this Bill, a whole range of investigations as to the financial circumstances and the possibilities of the parties. The conclusion which I personally reach and which I humbly put to your Lordships is that whatever be the rights and wrongs of our present procedure—which we all admit is cumbersome, expensive and embarrassing—and whatever may be the demerits of that system, it cannot in my view be right to substitute for that a Bill which throws the burden upon the Family Division of the High Court, on the county court or any other court and makes the situation of any judge which has to try it completely impossible. In any event, as I have tried to say, it is inconsistent with our thinking on the way in which the Family Division operates.
6.4 p.m.
The Lord Bishop of Hereford: My Lords, I should like to associate myself with the intentions of the noble Lord, Lord Lloyd of Kilgerran, in re-introducing this Bill. Your Lordships will remember that when this House was considering the Bill introduced by the noble Baroness, Lady Wootton of Abinger, the Marriage Enabling Bill, the bishops made it clear that their objection to that Bill was that by removing all constraints on marriage based on affinity, it proposed a solution which was too sweeping and which would be damaging in its consequences in eroding the delicate network of relationships within the family.
The bishops accepted that cases could arise where it would be right for a stepfather to marry his stepdaughter but the problem was and remains to find some criteria which could be applied and some means of applying them. The right reverend Prelate the Bishop of Durham, in referring to some hard cases during the Third Reading of the Bill, made it clear that the bishops were not unsympathetic towards such cases. What they opposed was the wholesale sweeping away of the law in the manner which was then proposed. The question now before this House is whether what is proposed in this Bill provides satisfactory criteria and, if so, whether this method of proceeding would be workable.
On the first question, I believe that the wording of Clauses 2 and 3 of the Bill need careful examination and some amendment at Committee stage if the Bill is given a Second Reading. Your Lordships will
790
remember that, at the Committee stage of the previous Bill, an amendment was agreed which provided for a minimum age of 21 for both parties for such marriages. A clause was also included which provided that no clergyman of the Church of England or Church of Wales should be compelled to solemnise such marriages or to permit them in the church or chapel of which he was the Minister. Some other amendments were also proposed but rejected and it would be desirable for some of these to be looked at again, or so I believe.
The more difficult question is whether the means proposed in this Bill—that is, adjudication by the courts—is workable. This is a matter on which legal opinion seems to be divided and the issue would seem to be one to which we shall have to listen with care to the noble and learned Lords. I would remind your Lordships of the words used by the right reverend Prelate the Bishop of Durham in the Third Reading debate of the previous Bill:
"If other countries can retain laws prohibiting marriage within the affinities and yet allow it in certain circumstances, why cannot this country?".
Whether the present Bill should progress would seem to depend on whether a satisfactory answer can be given to this question. If the view prevails that this Bill does not provide a way forward that is workable, the Archbishop of Canterbury has authorised me to say that he intends to set up a committee to advise him on this matter in consultation with the other Churches. What seems to be needed is a thorough, careful study of the matter in which theological, sociological and legal interests could be represented and in which the experience of other countries could be taken into account, with the aim of seeing whether some alternative to the present Personal Bill procedure can be devised. This will take time and resources and it may be that Her Majesty's Government will feel that they themselves should take some initiative in this direction; that is something to which the Ministers must give their own attention, but I mention the intention of the Archbishop of Canterbury to set up this committee since it shows that the Church recognises that there is a problem which needs some solution, and that solution needs to be found. What we are looking for is a means by which, without sweeping away the present law, cases can be looked at and adjudicated against some reasonable criteria. If the present Bill is judged not to provide a workable answer, the setting up of such a committee might be a helpful next step.
6.9 p.m.
The Parliamentary Under-Secretary of State, Home Office (Lord Belstead): My Lords, in view of the sponsorship by the noble Lord, Lord Lloyd of Kilgerran, of the Personal Bill two years ago, to which the noble Lord made reference, it comes as no surprise that the noble Lord is promoting this Bill to enable the courts to relax in individual cases and subject to certain conditions the general prohibition of the marriage of step-parents with step-children. Incidentally, this Bill does not deal with the case of step-grandparents or of sons- and daughters-in-law, a matter to which in his very persuasive speech the noble Lord, Lord Lloyd did not refer. The point to which the noble Lord most certainly did refer, and which of course has elicited

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sympathy from all speakers is that the procedure of a Personal Bill is very cumbersome, very expensive, and in the view of many people, too public in character to be suitable for the determination of the appropriateness of a particular marriage, and it is with this in view that the noble Lord has brought forward his Bill this evening.
In considering the Bill, I think the House will wish once again to have regard to the widely expressed desire to preserve the stability and integrity of the family and to discourage the development of inappropriate personal relationships within a family, in particular where people of different generations may be involved, though the way in which these considerations should influence the content of the law is a matter of judgment. However, I know that probably the whole House, certainly the Government, are indeed grateful to the right reverend Prelate the Bishop of Hereford for telling your Lordships of the initiative to be taken by the most reverend Primate the Archbishop of Canterbury in deciding to set up a committee, in consultation with other Churches, to examine possible ways in which dispensations from the general law on prohibited degrees of affinity could be given in deserving individual cases. My right honourable friend the Home Secretary will await with interest the fruits of that committee's work.
I should like to acknowledge that the approach of the noble Lord, Lord Lloyd, embodied in this Bill is to seek to relieve hardship in individual cases. And it is not unprecedented; the House may be interested to know that there is a small number of countries, including Denmark. France, West Germany, Norway and New Zealand, in which the law makes provision for the granting of dispensation to marry within degrees of affinity under the authority of the state. But, with the sole exception of New Zealand, the countries concerned have, it would be fair to say, systems of jurisprudence rather different from our own common law. I believe that under the New Zealand legislation, which is of quite recent origin, there have been only three applications, and I regret that information about the working of that legislation is not readily available.
We are indebted to the noble Lord for explaining very clearly why he wishes to provide a dispensation from the rigorous application of the law in individual cases. But there are some substantial difficulties in developing an appropriate procedure for dispensation as an alternative to a Personal Bill. Perhaps the main difficulty is that an application for permission to marry would give rise to no adversarial contest between parties on the basis of which the court could reach a determination. There would, I think, be difficulties about the obtaining and the adducing of evidence and the manner of testing its validity. In particular, Clause 2 reintroduces the concept of the matrimonial offence, which Parliament abolished as long ago as 1969 in the Divorce Reform Act, which freed the courts of the task of apportioning blame judicially between the parties. In the circum stances of an application to marry another person, perhaps many years later, it would be very difficult for the court to allocate blame for the matrimonial breakdown in the way which Clause 2 of this Bill would require.
The noble Lord, Lord Mishcon, felt that Clauses 2
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and 3 lay an impossible task upon the court. Certainly the House may remember that very much the same issues were debated on an amendment in the name of the noble Lady, Lady Saltoun, during Lady Wootton of Abinger's Bill last year, and in fact the House rejected that particular amendment. Clause 2 also contains a provision precluding the granting of leave to marry where the parties to the intended marriage lived together in a family during the minority of the stepchild. As I understand it, that, rather surprisingly, would place an absolute bar for all time between persons who had ever had a close relationship within a family unit, even in the distant past, and it would remove a right which it is possible for those who come to Parliament for a Personal Bill to obtain at the present time.
There is just one further difficulty. The Bill does not make provision for Scotland, and this was a matter which the noble Lord specifically mentioned, saying that he had asked the Lord Chancellor about it and the Lord Chancellor had said it was a good idea to take Scotland out. I think, if I may say so—and I have not had the opportunity to consult my noble and learned friend—that the Lord Chancellor's comment about the Scottish application was directed to the drafting of Clause 1 of the Bill, which refers to the Marriage Act 1949 and covers only England and Wales. But, of course, there is a Scottish Marriage Act similar in substance to the 1949 Act. Scottish law on stepparents' marriage is the same as the law in England and Wales. Obviously Scottish law is a matter for Scotland, but I would ask the noble Lord, Lord Lloyd, to consider seriously the proposal in this Bill which would create different laws about the capacity to marry on either side of the Border.
My Lords, for these reasons, while certainly the Government are not unsympathetic to the hardship which the present law may in a limited number of cases impose on individual couples, we do feel constrained to advise your Lordships that the proposed arrangements in this Bill for the grant of leave to marry by courts of law would be exceedingly difficult to put into practice. The noble Lord has explained very clearly and persuasively his concern on this subject. But, in the light of the consideration which is to be initiated by the most reverend Primate the Archbishop of Canterbury, I do wonder whether the noble Lord, Lord Lloyd, would perhaps like to consider the position of this Bill at the present time, which I am bound to say does not, I think, provide a satisfactory foundation for a change in the law on this difficult subject.
6.18 p.m.
Lord Lloyd of Kilgerran: My Lords, may I say how grateful I am to the noble Lords who have participated in this very interesting and very important debate in a social context. I am very grateful for the speech of the right reverend Prelate the Bishop of Hereford. He indicated that he and his colleagues wished to be associated with me in the general theme which my Bill puts forward. Most noble Lords who have spoken agree that the present procedures are unsatisfactory for hard cases, and it is only the hard cases that come up to this House.
My Lords, the noble Lord, Lord Mishcon, has disappointed me. His objection was—I have his words—that whatever be the rights and wrongs of the

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present process, that is the Personal Bill, it cannot be right to substitute a procedure which throws the burden on the court and makes the position of the judge impossible. If this were another forum and I was in that forum with the noble Lord, Lord Mishcon, I might be using different words from those which I propose to use now, but I am very disappointed that the noble Lord, Lord Mishcon, has not got confidence in the judges of this country to deal with albeit difficult questions relating to the personal habits, the personal arrangements, of the parties.
Lord Mishcon: My Lords, I know that the noble Lord, as always, will courteously give way when he mentions the name of one of your Lordships' House and criticises what he says. Nothing that I said was ever meant to cast an aspersion upon the ability of Her Majesty's judges to judge what was appropriate before them. My point was that this was not an appropriate matter for such a judge to judge.
Lord Lloyd of Kilgerran: My Lords, I am very much obliged to the noble Lord for that very helpful statement in the course of my speech. But what does he mean when he says that my Bill makes the position of a judge impossible? Indeed, he supported that by saying that one of the reasons why it would make it impossible is that I am turning the judge into a prophet. I am sure that the noble Lord, Lord Belstead, and the noble Lord, Lord Mishcon, realise that in many Acts of Parliament the words, "in the public interest", appear and the judge has to decide whether the matters before him are in the public interest. I have heard many judges in my experience deplore the fact that they have got to consider the public interest, but that is commonly the position of our great judges in this country. They have to go into the future; they have to consider the public interest. And what is that, but looking into the future?
In my view, a court dealing with these family matters finds them no more difficult than many of the other hard tasks that it has to deal with. Let us consider the hard tasks that courts have to deal with involving the guardianship of children. That is a jurisdiction which they carry out extremely well and justly, and they have to look into the future and into the welfare of the parties concerned. I hasten to say that I have no real experience of the family court, but I am not unfamiliar with some of the judges who have acted in the family courts. I heard one judge say that dealing with matters of this kind is nowhere near as difficult as dealing with matters involving intellectual property, patents, trade-marks and know-how like that. It would seem to me that the points which were raised by Mr. Mishcon are directed to Clause 2 subsection (i), (ii) and (iii).
Lord Mishcon: My Lords, I think that the noble Lord may quarrel with me, but to rob me of my noble status is really too much!
Lord Lloyd of Kilgerran: My Lords, again, I must apologise to the noble Lord, Lord Mishcon, but, as I indicated, I would have behaved differently if we were in a different forum. I am sure that the noble Lord will forgive me for that mistake. Nevertheless, taking the matter seriously, as regards the general theme of the Bill, it would seem to me to be accepted that some other
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procedure is necessary. Apart from the noble Lord, Lord Mishcon, it seems to me that it is agreed that the courts could deal with applications of this kind although the task may be a very difficult one. However, I am sure that the judges would not shudder from dealing with difficult tasks of this kind.
The points of detail raised by the noble Lord, Lord Mishcon, in so far as Clause 2 is concerned seem to me to be matters which could be raised and dealt with in Committee. The noble and learned Lord the Lord Chancellor, from whose speech of 22nd May 1980 I quoted, indicated that, in order that this matter should be justiciable—to use his words—there should be guidelines set down by Parliament to assist the court. Therefore, the only thing that prevents this Bill going forward at the moment is the anxiety about whether Parliament can put down adequate guidelines to assist the courts in this difficult matter. That is a matter for the Committee stage and, therefore, I commend this small Bill to your Lordships.
6.25 p.m.
On Question, Whether the Bill shall be now read a second time?
Their Lordships divided: Contents, 47; Not-Contents, 32.

DIVISION NO. 1

CONTENTS

Ailesbury, M.

Houghton of Sowerby, L.

Amherst, E.

Jacques, L.

Ardwick, L.

Jeger, B.

Auckland, L.

Lloyd of Kilgerran, L. [Teller]

Avebury, L.

McNair, L.

Aylestone, L.

Melchett, L.

Bacon, B.

Mountevans, L.

Beaumont of Whitley, L.

Noel-Baker, L.

Brooks of Tremorfa, L.

Phillips, B.

Bruce of Donington, L.

Ponsonby of Shulbrede, L.

Burton of Coventry, B.

Rochester, L.

Cledwyn of Penrhos, L.

Seear, B.

Collison, L.

Sempill, Ly.

Cork and Orrery, E.

Spens, L.

Craigavon, V.

Stewart of Fulham, L.

David, B.

Strathcarron, L.

Davies of Leek, L.

Taylor of Mansfield, L.

Evans of Claughton, L.

Underhill, L.

Ewart-Biggs, B.

Wade, L.

Fortescue, E.

Whaddon, L.

Gainford, L.

White, B.

Gosford, E.

Wilson of Radcliffe, L.

Hampton, L. [Teller.]

Winstanley, L.

Hooson, L.

NOT-CONTENTS

Bathurst, E.

Lauderdale, E.

Boyd-Carpenter, L.

Loudoun, C.

Colwyn, L.

Marley, L.

Dundee, E.

Mishcon, L.

Eccles, V.

Mottistone, L.

Eldon, E.

Nugent of Guildford, L.

Ferrers, E.

Orkney, E.

Fraser of Kilmorack, L.

Richardson, L.

Grimston of Westbury, L.

Rochester, Bp.

Harmar-Nicholls, L.

St. Davids, V.

Harvington, L. [Teller.]

Seebohm, L.

Hemphill, L.

Stone, L.

Hereford, Bp. [Teller.]

Strathspey, L.

Hylton-Foster, B.

Swinfen, L.

Kinloss, Ly.

Terrington, L.

Lane-Fox, B.

Thurlow, L.

Resolved in the affirmative, and Motion for Second Reading agreed to accordingly: Bill read a second time, and committed to a Committee of the Whole House.

Constitutional Referendum Bill [H.L.]
6.33 p.m.
Lord Alport: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Alport.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD NUGENT OF GUILDFORD in the Chair.]
Clause 1 [Bills to abolish Second Chamber subject to referendum]:
Viscount Eccles Viscount Eccles moved Amendment No. 1:
Page 1, line 18, leave out ("Commons") and insert ("Lords").
The noble Viscount said: The purpose of this Bill is to defend and, if possible, entrench two-Chamber government. That is what it is all about. But in Clause 1 we have one-Chamber government. Clause 1 says that if an abolition Bill has gone through another place—and I can imagine the kind of debate that there would be—and finally receives its Third Reading, at that point the referendum machinery shall be put into operation. In other words, your Lordships will have no chance to debate this Bill before the referendum machinery is brought into operation.
That cannot be in the proper parliamentary tradition. We are expressing our wish for two-Chamber government and here, in the very first clause, we are not to have it. Of course it is necessary for the people of this country—if they are to be asked in a referendum whether or not they want a Second Chamber, and the much more difficult question about our powers: whether they want them diminished—to hear what your Lordships have to say about that. It is extraordinary that we are not to have one single word of debate.
If we insert the word "Lords" instead of the word "Commons", it raises certain complexities of procedure. It is certain that an abolition Bill would start along the corridor in the Commons. It would then come to us and we might throw it out, in which case, of course, the referendum procedure would not work. Therefore, what must happen—and I do not, myself, believe that there is any chance it would happen, but let us suppose that it did—is that we should have the Bill here: we should have to speak to it exactly as we felt right, and I have not the slightest doubt that we should say some very hard things about those who wished to abolish this Chamber.
We would impress the public by our arguments. As we have two excellent Chief Whips, of course, the Bill would have to go through because, if we did not give it a Third Reading, it would go back to the Commons, having been thrown out by this House, and then the other procedure—which would only he a delaying procedure—would come into operation. However, we are quite good enough politicians to arrange that. The point of this amendment is that we must not allow a Bill to go through which cuts us out of debate on a great constitutional issue. I beg to move.
Lord Alport: It might be for the advantage of your Lordships—unless my noble friend would care to intervene at this point—to give my comments on the views of my noble friend Lord Eccles. On Second Reading my noble friend Lord Boyd-Carpenter advanced the argument—which has now been repeated by my noble friend Lord Eccles—that this House should have a full opportunity of debating the terms of any Bill coming from the House of Commons and, as he has argued, that it should go through all its stages to Third Reading in this House before a referendum operates.
The principal object of making the holding of a referendum a requirement after Third Reading in the House of Commons, was to ensure that there should be no constitutional confrontation between this House and the other place. If their Bill proposing to abolish the House of Lords or to emasculate its powers as a Second Chamber were to be considered on Second Reading here, it could either be rejected—with the result, as my noble friend Lord Eccles has indicated, that the Parliament Act would operate, and thus the necessity for holding any referendum would be avoided—or, if it were given a Second Reading, it would be assumed that the House of Lords had endorsed the principle of the Bill. If, subsequently, it went through the remaining stages, with amendments, the final form of the Third Reading would be approved by this House, and the referendum would be on whether the House of Lords' version or the House of Commons' original was acceptable to the majority of the electorate.
As a result, there would be a direct confrontation between this House and the House of Commons, probably, as my noble friend has indicated, recently elected, and this House would be politically in a very disadvantageous position. As I said at Second Reading. the object of this Bill is to prevent the "Peers against the people syndrome which would give powerful ammunition to those who wished to see a unicameral parliament in Britain. I do not of course wish to impute to my noble friends any intention deliberately to move this amendment as a wrecking amendment, but I regard it as having, to all intents and purposes, that effect.
They have been very frank at Second Reading debates in voicing their opposition to this Bill, but on both occasions the principle of the Bill was endorsed by your Lordships without a Division. I was perfectly prepared on both occasions to accept any challenge to that principle in the Division Lobbies, but from such knowledge as I have of the procedures and customs of this House, particularly on a Private Member's Bill, it is not our normal practice to seek in Committee, or subsequently, to press amendments to a Division which strike at the heart of a Bill which has been accepted by the House on Second Reading without a Division.
At the same time I can understand the argument that my noble friend has put forward that before the issue of the abolition of the second Chamber is committed to the judgment of the British electorate, this House in its corporate capacity should have the opportunity of expressing its views on the Floor of this House in general debate. This, I suggest, could be done with the maximum effect by means of full debate on a comprehensive Motion between the Bill having its Third

797
Reading in the House of Commons and the referendum being held, which would not be less than three months after the order in council to hold the referendum had been promulgated. This would avoid the procedural hazards which my noble friends' amendment would produce. It would avoid any confrontation between the two Houses. It would enable your Lordships in dignified and measured terms to state the case for the continuance of bicameral parliament, or of a second Chamber with adequate powers.
My object in introducing this Bill in two successive Sessions was initially to ventilate a proposal which would, so I believed at any rate, protect our parliamentary constitution from being reduced to an elective dictatorship by some transient political aberration; to prevent that elective dictatorship from becoming permanent, by ensuring that a second chamber retains the major responsibility for maintaining under the Parliament Act 1911 the five years rule; and lastly to safeguard the historic balance in the constitution of the Crown, the second Chamber, and the House of Commons.
Your Lordships may now think that this is rather a remote possibility. It was not, as my noble friend Lord Eccles indicated in his speech on Second Reading last year, a remote possibility, and it may not seem to be so far fetched in two years' time. Of course if it is a decision of the electorate of Britain that they wish to give the elected House all powers to rule this country without the constitutional safeguards which at present exist and are exercised by this House, then they should, in my submission, be given a full opportunity to say so. But, in making that decision, it should be made, I maintain, without this House becoming involved in a referendum campaign and having to justify whatever may be its composition and constitutional powers of that time.
This Bill puts, and is intended to put, the onus of proof for the abolition of the second Chamber, or the emasculation of its powers, on the House of Commons, which is where it should be, and then to leave it to the nation to decide. If my noble friends' amendment is accepted the situation is completely changed. Either it becomes a direct confrontation between the Houses if the abolition Bill is rejected on Second Reading, or if it is carried through all its stages to Third Reading in this House the issue to be decided in the referendum will be whether the electorate will support the House of Lords as against the House of Commons.
The real issue will then be overlaid by political partisanship, all the emotive threat of the cry, "Peers against the People", and your Lordships' voices in justification of the consitutional proprieties, which you will have endeavoured to maintain throughout the passage of the Bill through this House, will be lost in the general hubbub of the ensuing controversy. Your Lordships would indeed be forced into the position of having to justify the continuance of a second Chamber, however composed, rather than that the House of Commons should justify to public opinion its proposed abolition or, as the case may be, the emasculation of its powers; or to prevent the permanence of an elective dictatorship, or to continue the essential role which this House plays as a revising and debating chamber.
Therefore, as I say, this amendment is tantamount to a wrecking amendment. I have tried to see if there
798
is any way in which I could suggest a compromise with my noble friends, but I am afraid I have not been able to do so. In these circumstances I hope my noble friends will withdraw their amendment, or if they feel unable to do so that it will be rejected by your Lordships in the Lobbies.
6.46 p.m.
Lord Denham: I think it might be useful if I intervene at this stage. Perhaps before I speak about this particular amendment it would be helpful to make a couple of general remarks about the Government's role in this Committee stage as a whole. As your Lordships will recall, my noble friend the Leader of the House made a full reply for the Government at Second Reading last December. She made several more detailed points, if only to stress the very real difficulties which arise when an attempt is made to superimpose a referendum procedure during the passage of a Bill through Parliament.
She then went on to explain that the Government did not themselves propose to pursue any form of protection or entrenchment legislation during the present Parliament. This remains the position today, and my noble friend Lord Alport will, I am sure, understand that, and that given this position we cannot undertake to assist him with drafting advice or seek to perfect the Bill in Committee. Having said that, however, I have come here equipped with comments on the amendments, and I at least hope that these will be of some interest and help to your Lordships today.
Let me say straight away that my noble friend Lord Eccles' amendment is intended to meet a criticism of the Bill which my noble friend the Leader too made at Second Reading: that as drafted the Bill denies this House any opportunity to debate a Bill before the referendum takes place, and therefore denies the electorate the chance of hearing the views of the one body of people who might, in the circumstances, know what they are talking about. As she said then, there can he few Bills on which this House would be more entitled to express a view than on a Bill to abolish, or restrict the powers of this House.
My noble friend Lord Alport said that he had drafted it in this way in order to avoid any direct confrontation with another place. With very great respect to my noble friend, it is difficult to imagine that a Bill to abolish this House could pass, or develop, without some slight tension between the Houses. This is not a wrecking amendment, and if I may presume to make a suggestion to correct my noble friend on procedural grounds, I cannot accept that it is in any way improper for this House, having given a Bill a Second Reading, to reject or to pass an amendment to the Bill, as I think my noble friend was suggesting.
I think that the amendment as drafted does not quite achieve what my noble friend hopes that it does. His hope was that it would make it necessary for the referendum to take place after the Second Reading in this House. In point of fact, the Bill as drafted makes it necessary that the referendum takes place before the Second Reading in this House.
Lord Boyd-Carpenter: Before the Third Reading.
Lord Denham: Before the Third Reading in this

799
House. The Bill as drafted makes it necessary for the referendum to take place before the Third Reading in another place, and therefore before the Second Reading in this House. The amendment as drafted only makes it necessary for the referendum to take place before the Third Reading in this House. The Government of the day, had they such a mind, could in fact hold the referendum before the Second Reading in this House. That would comply with the terms of the Bill were my noble friend's amendment accepted.
Lord Alport: It says it shall not proceed beyond Third Reading in the House of Commons, which means the House of Commons will have taken it to Third Reading.
Lord Denham: Before or after Third Reading, the fact is that it would be before Second Reading in this House. That is a slight defect of the amendment, but nevertheless I must say, speaking personally, that I prefer the Bill with the amendment than as it stands.
6.51 p.m.
Lord Stewart of Fulham: I confess to no great enthusiasm for the Bill, but we must recognise that at this stage it has received a Second Reading; so my attitude towards the question whether we should have the words "Lords" or "Commons" in line 18 may be described as one of malevolent neutrality. I find some real difficulty here and I did not find the Government's exposition entirely helpful. It says the Bill shall not proceed beyond Third Reading in the House of Commons or, if the amendment were accepted, beyond Third Reading in the House of Lords. There would be a Third Reading then, in whichever House it is, in either case; it would be after the Third Reading that the referendum would step in.
Lord Denham: Not necessarily.
Lord Stewart of Fulham: That is how, to a layman, the Bill reads. It cannot be denied that it would be perfectly legal and proper for the Bill to go ahead so far as Third Reading in either the Commons or Lords, wherever it turns out to be, before the referendum.
Lord Denham: My advice is that the amendment as drafted, if included in the Bill, would make it possible for a Government to hold the referendum before Third Reading in this House, before even Second Reading in this House; it says that the Bill will not proceed beyond Third Reading without having had a referendum. It does not say at what stage that referendum must take place. It could take place even before Second Reading in this House. It is a minor defect which possibly could be put right with drafting.
Lord Stewart of Fulham: I follow that, and it means that the referendum could be stepped in at almost any point, provided it comes immediately after Third Reading, that being the latest point. If so, then the whole argument to which we have been listening—whether it should be the Commons or Lords—has to be thought out on different assumptions than those
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made by the noble Viscount, Lord Eccles, and the noble Lord, Lord Alport.
Something else worries me. The noble Viscount took it for granted that the Bill would be bound to start in the Commons. I wonder if he is right? I agree that a Bill to abolish this House is not very likely to start in this House, but, rather significantly, the Bill refers to Bills to diminish the power of this House and it does not say, as one amendment suggests, "diminish substantially": the smallest limitation on the powers of this House would bring such a Bill within the ambit of the referendum position. I do not find it absolutely impossible to envisage circumstances in which a Bill to make a very minor alteration in the powers of this House might actually initiate in this House. I agree it is very unlikely, but we have learnt on many occasions that it is wise when drafting Acts of Parliament to be quite certain what we mean.
As I understand it, the noble Viscount wants to be sure that this House debates and votes on such a Bill before it goes to referendum, while the noble Lord, Lord Alport, does not want that to happen. I am suggesting that in trying to get their objectives by using the words "Commons" and "Lords", neither of them can be quite certain that their objective will be achieved. If the Bill starts in this House then, as the Bill now stands, we shall certainly have a debate in this House before the referendum comes along. If we alter it as the noble Viscount suggests, we should then have a situation in which the referendum would come along after this House had pronounced but before the Commons had pronounced; because it could not proceed beyond Third Reading in the Lords without a referendum; and if the Bill had begun in the Lords, then the moment it had got its Third Reading in the Lords, one would have to step in with the referendum before it had ever begun in the Commons, and I do not think the Commons or the general public would like that.
It should not be too difficult to alter the wording so as to make sure that whichever way we decide—whether with the noble Lord, Lord Alport, or the noble Viscount, Lord Eccles—having decided which of their two solutions we want, we at least word the measure to make sure we get it, but at present 1 do not think we shall.
6.56 p.m.
Lord Boyd-Carpenter: The Committee is indebted to the noble Lord, Lord Stewart, for clarifying two important aspects both of the Bill and of the amendment. On his first point, I agree with him that the Bill as it stands would bring in the referendum procedure even for a trifling reduction in our powers, and that is ridiculous. It is however a defect of the Bill and not, I suggest, a defect of the amendment. We then come to the more substantial point Lord Stewart made on the amendment. I agree with what he said as to the effect of the amendment, if accepted, in a situation in which the abolition or enfeeblement measure originated in this House. I think we can dismiss as a hypothesis about which we need not bother the concept of an abolition measure proceeding very far here; it is extremely unlikely that it would pass Second Reading, except in the situation in which Mr. Wedgwood Benn had carried out his plan to create 1,000 Peers, and if that were to

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happen then any safeguards of this sort would be wholly irrelevant and lost in the general confusion.
In the case of a Bill dealing with powers, if the amendment were accepted, we should—whether the Bill originated in the Commons or the Lords—have a good chance of securing the important point to which my noble friend Lord Eccles attached great importance; that this House had an opportunity to debate the matter before it went to the people. Unless the Government of the day took the extreme step, where the Bill originated in this House, of taking the referendum right away—which would be a step so outrageous that I suggest the Government would prejudice their own case fatally with a fairminded electorate—then, if it is taken after Third Reading here, this House will have had an opportunity to debate it, and therefore the object will have been secured in that the point of view of this House will have been able to be put before the people, and that is a very important aspect of the matter.
If we move in this direction, further polishing the amendment at a later stage to deal specifically with the Bill initiating in this House is a matter well worth considering. But I suggest the Committee would be well advised to accept my noble friend's amendment, particularly in view of the attitude adopted by my noble friend Lord Alport, who does not want—he is perfectly plain about it—this House to have an opportunity to debate the matter before the electorate votes in the referendum. He is perfectly frank about that. He said, I thought with a touch of naivety, that he was anxious to avoid a confrontation between the two Houses. But if the majority in one House seeks to abolish another House, I should have thought the risk of confrontation was pretty high.
Lord Jacques: As I understand it, the noble Lord, Lord Alport, did not want a confrontation, but he did want the issue discussed in this House, and he said that it could be discussed on a Motion.
Lord Boyd-Carpenter: My noble friend said that the issue could be discussed on a Motion. He did not wish us to discuss the Bill. With great respect to the noble Lord, Lord Jacques, who has considerable experience, not least as one of our deputy chairmen, there is all the difference in the world between debating a Bill stage by stage, with the general principles on Second Reading, the details in Committee, and some further details on Report, and taking a one-day general debate. That applies not least from the practical point of view, in that the media are given an opportunity several times to put forward to the people the views expressed in this House. That is why, if we are to have this procedure, I attach great importance to the point that we should secure, as the amendment, even in its present form, secures, that this House has the opportunity to discuss the matter before it goes to referendum.
Finally, my noble friend Lord Alport said, rather astonishingly, that he regarded this amendment as a wrecking amendment. As I indicated, he was not prepared even to consider it in another form. I really fail to understand why he should take that view, for, after all, the amendment accepts for this purpose what, as understand it, was the main principle of his Bill and what he indeed told us on Second Reading was the
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main principle of his Bill—that there should be a referendum before this House was abolished or seriously weakened. Moreover those of your Lordships who recall the Scottish and Welsh devolution Bills, will remember that the referendum under those Bills was to be held at an even later stage than our amendment suggests; it was to be held after all stages in both Houses had been concluded. Therefore, the fact that we do not agree with my noble friend Lord Alport on the crucial question of the timing of the referendum does not make it a reasonable charge for him to say that this is in any sense a wrecking amendment. Indeed, I would go further. It indicates that we are trying to put the Bill into a more practicable form.
There is one further point which I think bears on this question. In quite a purple passage my noble friend said that the onus should be on the House of Commons to put the case to the people. In any law court that I have known if the onus of proof in a criminal case is on the prosecution, it is at least the normal practice to allow the defence to be heard before the jury considers the verdict.
7.3 p.m.
Lord Wade: I wonder whether I may join in the debate from this end of the Chamber. At the beginning of a Committee stage of a Bill of this importance it is not unusual to go a little wider than the actual wording of the first amendment, and I think it helpful to have a somewhat general discussion of this nature. If I am at fault in that respect, I hope that I shall be forgiven, but I think most noble Lords realise that this happens on the first amendment, and I am only trying to be helpful.
First, I would congratulate the noble Lord, Lord Alport, upon having secured a Second Reading. He has devoted a great deal of time to producing the Bill, and he has now enabled your Lordships to study it in detail, for which we are thankful to him. I know something of the hazards of Private Members' Bills, and I hope that he will be successful in enabling these discussions to take place. I express my personal regret that I was unable to be here at the Second Reading. On the occasion of the Second Reading the noble Lord, Lord Alport, was good enough to mention my apologies. I was snowed up. From the very moment I said that I should like to attend the Second Reading the snow continued without ceasing, so I was unable to be here.
Perhaps I may make my own position clear. First, believe that there is real value in a second Chamber. Obviously there is a case for a reform of the second Chamber, and I think that that will come. But there is real value in a second Chamber. Secondly, I think that there are serious dangers to the parliamentary system in single-Chamber government. I do not think that it would be to our advantage to have single-Chamber government, and I think it might well lead to a one-party state—a point that was mentioned on Second Reading.
I have some doubts about a referendum as a procedure in general terms. I think that it is contrary to our traditions, but there are occasions when it is appropriate, in particular where a constitutional issue is involved—
The Chancellor of the Duchy of Lancaster (Baroness Young): It is very important that the noble Lord, Lord Wade, should make his points, but we are on the Committee stage of the Bill and I would ask him to direct his points to the particular amendment that we are debating, which is the one that has been moved by the noble Viscount, Lord Eccles.
Lord Wade: I entirely agree. The purpose of the first amendment is whether or not the word "Commons" should be replaced by "Lords" , but I think that before the Committee stage gets under way one must have some indication of the background. However, I have dealt with that and noble Lords have been been kind enough to listen to what I had to say.
The difficulty as I see it is this. First, one must be sure, as sure as one can be, that the other place, that Parliament, which consists of two Houses—the other place and the second Chamber—is in favour of a referendum. I am very doubtful as to whether one can devise legislation that would clearly spell out when a referendum should take place. That is the first point that we have to consider.
Assuming that there is to be a referendum, the important question is: at what stage should the referendum take place? It seemed to me that that is part of the issue which has been raised by the noble Viscount, Lord Eccles. The difficulty I see is that, if there is to be a referendum on a general principle which is understood by the electors to whom the question is put as a general principle, it can be either before the Bill is introduced or after both Houses have had the opportunity of considering it. Personally I am not in favour of introducing a referendum halfway through the parliamentary stages, for one very good reason—and I sincerely hope that the Government Front Bench will accept that this is relevant to the amendment. The point I am getting at is as follows. The voters are to be asked to answer a question. I am not going to discuss the two questions in the schedule; I have doubts about them. When the question is put, the persons answering it know precisely what it is they are being asked. Assuming that the Bill goes to both Houses of Parliament—and of course that includes the normal procedure whereby amendments may be made during the passage of the Bill in the second Chamber—then the electors who have the opportunity of giving an answer to the question on a referendum must know what it is they are answering.
So far as I can see—and I have endeavoured to study this Bill very carefully—the referendum should either be on a principle before the Bill passes through Parliament, subject to a referendum, or after both Houses of Parliament have had the opportunity to express an opinion and, if necessary, to amend it. I do not see how any electors to whom a question is put could decide yes or no about a Bill which might still be amended in one or other of the Chambers, which in all probability would be the second Chamber.
The difficulty about the amendment before us is precisely that. As I see it, it does not take adequate account of the possibility of amendments being made in both Houses. It also raises the question as to whether it is one which requires a referendum in accordance with the terms of the Bill. But I see the point put by the Government Front Bench about the
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Lords and the Commons. I agree that if there is to be parliamentary procedure at all on a Bill both Houses of Parliament should have an opportunity to express an opinion and make amendments. But those to whom the question is put must know what the question is, and until you know precisely what the question is I think the referendum, I will not say will be of little value but it cannot achieve its desired object, and it could lead to further trouble afterwards.
I therefore hope, without my going into it in much greater detail—I could take it clause by clause of the Bill—the noble Viscount and the noble Lord who have moved this amendment will see the point that if you wish the House of Lords (or call it the second Chamber) and the lower House to discuss and, if necessary, amend a Bill and then have a referendum, the electorate must be in a position to know what the question is that they are being asked to answer. Under those circumstances, I hope the noble Viscount and the noble Lord will see fit to withdraw this amendment. I agree with the arguments about both Houses, but I hope they will see fit to withdraw this amendment because I can see all kinds of difficulties arising from this Bill if it is amended in the way that the noble Lord, Lord Boyd-Carpenter, wishes us to amend.
Under those circumstances, my view would be that it would be advisable and helpful to withdraw this amendment and to proceed to discussion of the other parts of the Bill without giving a final answer on the point which has been raised; namely, whether both Houses of Parliament should have the opportunity to express their views on a Bill which leads to a referendum.
Viscount Eccles: I think I can help the noble Lord, Lord Wade, because that is exactly what I put the amendment down to do—to give your Lordships' House, as well as the other place, a chance to debate the Bill. Noble Lords will see that if we leave it simply at the Commons then the referendum would take place without any debate in your Lordships' House. So the noble Lord is on my side. He must be all the more on my side because the noble Lord, Lord Stewart of Fulham, overlooked the fact that his rather amusing little proposition about a Bill starting in your Lordships' House has no effect, because if he looks at the provisions of this Bill he will see that even if a Bill did start in your Lordships' House the referendum could not be held without a certificate from the Speaker. The Speaker is not going to give his certificate until the Bill has been debated in the Commons; so the point raised by the noble Lord, Lord Stewart, really does not arise.
Lord Stewart of Fulham: With great respect, I think it does. In the event—and I agree it is very unlikely—of the Bill starting in your Lordships' House, it cannot go to the Commons and the Speaker could not give his certificate. It could not go to the Commons because you have got to have the referendum before it goes beyond the Third Reading in this House. So it starts here and it is only your Lordships' House which has any word about it.
Viscount Eccles: I really think the noble Lord is wrong. You cannot have a referendum until the

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Speaker has given his certificate, and therefore the Bill would go from your Lordships' House to the other place without a referendum because the conditions would not have been fulfilled.
I want to say very little, except that the idea that this is a wrecking amendment never entered my head. The idea that one would avoid a confrontation of a kind which would be bad for the national interest, bad for our Parliamentary institutions, if both Houses debated this Bill really does not seem to me to make sense. The confrontation will come anyway if there is an abolition Bill. I merely want to see that the Bill is examined in detail and your Lordships' views on this matter are given in detail, which would give those people who are on our side far more ammunition. Therefore, so far as I am concerned, I would ask the Committee to divide on this amendment.
Lord Alport: If I am allowed to have a final word on this matter, I should like to say this. I think a great deal of our discussion so far during this Committee stage on this amendment has not really faced the realities of the political situation in which Parliament and the country would find itself at a future date. My own personal view is a very simple one, and I think it is held by a number of others. It is that the real issue that is going to face your Lordships' House in due course is not one of amending its powers, really, although we have included that in the Bill, but is a question of abolition and a straight, flat question that your Lordships' House, the second Chamber, be abolished.
If my noble friends' amendment is accepted, as I have already said, then it means that, in the event of a Bill coming to your Lordships' House to abolish this place, the assumption that I made in drafting this Bill is that it would be defeated here. But if the Bill was introduced into the House of Commons, passed through its stages there and came to your Lordships' House, and then on Second Reading was defeated here, as it would be, frankly, then the Parliament Act would operate and there would be no referendum.
Therefore I have said to my noble friends that, although I do not think they intended it, the practical effect of their amendment is to wreck the main object of this Bill. For anybody to suppose that your Lordships' debate on the Committee stage is going to have a powerful effect in the emotional circumstances which are likely to exist when an issue of this sort comes before Parliament and before the country, is giving credit to your Lordships for something which I do not think anybody outside your Lordships' House would really accept.
My noble friends are really talking about a situation which I regret to say does not in this present day exist. Therefore I say, without any disrespect to my noble friends, that this amendment in fact cuts out the heart and the object of this Bill. The object of this Bill, as I tried to make clear to your Lordships earlier, is to ensure what I believe to be a vitally important part of our constitution; that is, the continuance of a second Chamber with adequate powers. The issue when the time comes will not be whether our powers are reduced, but whether or not a second Chamber itself will exist. Therefore, I am afraid that I must
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oppose this amendment and, as my noble friend Lord Eccles has said that he will not withdraw it, let us see what happens when we divide in the Lobbies.
Lord Boyd-Carpenter: It is normal practice in this House for those supporting an amendment to have the last word; and I thought that my noble friend Lord Eccles had been exercising that right when he waited before he rose for my noble friend Lord Alport to rise. As that turned out to be a misapprehension, I will not detain the Committee for long. But I cannot allow my noble friend Lord Alport to get away with the reiteration of his obsession that this amendment is a wrecking amendment. Take the situation which he adumbrated. An abolition Bill comes to this House. It would then, having passed the Commons, if this amendment is in force, be open to this House either to throw it out on Second Reading or, if they decided to show greater wisdom than to ask for its destruction under the Parliament Act, for this House not to throw it out on Second Reading but, having that confidence in the people about which my noble friend Lord Alport spoke so eloquently on Second Reading, to let it go to the later stages in order to get the advantage of a referendum which as my noble friend obviously thinks—for this is the purpose of his Bill—would result in the salvation of this House.
Therefore, I say that, so far from this being a wrecking amendment, it is an amendment which seeks to make better sense of the referendum proposal and, if I may repeat it once more, to save this House from being condemned unheard.
7.23 p.m.
On Question, Whether the said Amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 48; Not-Contents, 11.

DIVISION NO. 2

CONTENTS

Avon, E.

Jenkins of Putney, L.

Aylestone, L.

Kennet, L.

Banks, L.

Kinloss, Ly.

Bathurst, E.

Long, V.

Boyd-Carpenter, L. [Teller.]

Loudoun, C.

Broadbridge, L.

Lyell, L.

Brockway, L.

McGregor of Durris, L.

Brougham and Vaux, L.

McNain, L.

Burton of Coventry, B.

Marley, L.

Caccia, L.

Melchett, L.

Campbell of Alloway, L. [Teller.]

Monk, Bretton, L.

Mottistone, L.

Cathcart, E.

Napier and Ettrick, L.

Cork and Orrery, E.

Orkney, E.

Craigavon, V.

Rochester, L.

Denham, L.

Sandys, L.

Eccles, V.

Sherfield, L.

Evans of Claughton, L.

Stamp, L.

Ferrers, E.

Strathcarron, L.

Fortescue, E.

Terrington, L.

Hampton, L.

Wade, L.

Harmar-Nicholls, L.

Winstanley, L.

Hooson, L.

Winterbottom, L.

Houghton of Sowerby, L.

Young, B.

Hylton-Foster, B.

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NOT-CONTENTS

Alport, L. [Teller.]

Noel-Baker, L.

Ardwick, L.

Ross of Marnock, L.

Bacon, B.

Thurlow, L.

Greenwood of Rossendale, L.

Underhill, L.

Jacques, L. [Teller.]

Wells-Pestell, L.

Jeger, B.

Resolved in the affirmative, and amendment agreed to accordingly.
7.30 p.m.
Lord Alport: It was my promise on Second Reading that I would not take up the time of your Lordships unnecessarily over this Bill. In these circumstances, since, as the mover of this Bill, my view is that the heart of the Bill has now been taken out, I beg to move that the House be now resumed.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

A.34: Proposed Whitway Diversion
7.31 p.m.
Lord Melchettrose to ask Her Majesty's Government whether they will now reconsider their decision not to hold a public inquiry into the proposed diversion of the A.34 at Whitway.
The noble Lord said: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. I have taken the step of asking an Unstarred Question about this particular road proposal because it seems to me that in this case the department have behaved illegally in the terms of the legal advice which they themselves have been given and published, and also in terms of the court cases which have been held on the subject of when public inquiries may be dispensed with and when they may not be dispensed with.
It also seems to me that the department have not only behaved illegally but in an altogether not straightforward way. They have suppressed certain alternatives which have been put forward by the public. They have even gone so far as to manage to lose the map of one alternative route that was put to them. It seems to me that they have done all this with the specific intention of avoiding a public inquiry into this proposal.
May I briefly set out the background to this case and go on, as I believe I can, to substantiate those serious charges against the department? The proposed road is part of the A.34, and the proposal is to make a dual carriageway on part of the A.34—one of the few parts of that main road which is not currently dual carriageway—and it is no part of the objectors case that a dual carriageway is not needed. Therefore it is not my intention to go into any arguments about the volume of traffic on this particular road and whether or not there is a case for road widening. There may be some argument about that and it may be something worth considering at a public inquiry; but it is not part of my case this evening.
In November 1979 the department set out a shortened period of public consultation and only one route was offered by the department. In July 1980 orders were
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published for that route. In March 1981 those orders were withdrawn and new orders were published. In November 1981, at the end of last year, the Minister announced that he would not be holding a public inquiry into the proposal; Ministers would make a decision in the light of the evidence that they already had.
This is a local issue but nevertheless a number of substantial objectors have their objections still outstanding. They include objections from the Ramblers Association, the organisation called Save Britain's Heritage, the Garden History Society and Transport 2000. There have also been 60 individual letters of objection and a petition with 165 signatures. As I understand it, all those objections remain outstanding.
In the normal course of events, the department would have a public inquiry into a proposal of this kind. There does not seem to be any doubt whatsoever about that. The Highways Act, 1980 (which is a consolidation Act) in Schedule I paragraph 7(2) sets out the grounds on which a public inquiry may be dispensed with. This is only the case in unusual and exceptional circumstances. The paragraph says that where there are no statutory objectors—that is, landowners and other people with particular interests mentioned in the Highway Act; and there are none of those in this case for reasons to which I shall refer—the Minister may, if he is satisfied that in the circumstances of the case the holding of an inquiry under the paragraph is unnecessary, dispense with such an inquiry.
That, on the face of it, gives very wide powers to the Minister. Nevertheless, the Minister has to satisfy a strict test. He has to satisfy the test that the inquiry is actually unnecessary and he has to be satisfied in the particular circumstances of the case. There was one time when the department was taken to court, in the case of Shorman v. The Secretary of State, in 1976. I do not think that it is much of a coincidence that it happens to be the same regional officials of the Department of Transport who were concerned in that case as are concerned in the A.34 case, which we are discussing this evening.
The Department failed to hold an inquiry. There were only three unwithdrawn objections then, an incomparably smaller number than in the case of the A.34 improvement. The judge held that it was all right to dispense with an inquiry. But in the course of making that decision, the judge made it quite clear that he had upheld the department's decision because there was no appreciable public demand for an inquiry and the department had material which was sufficient on which it could reasonably come to a decision.
It would be going well beyond the bounds of reason to suggest that the same criteria applied in this case. There are not three unwithdrawn objections but well over 150 unwithdrawn objections, including some from major organisations. The idea that there is no appreciable public demand is ridiculous. There have been repeated reports in the press of the anxiety to which this proposal gives rise, and a number of complicated matters remain to be looked at in public and have not yet been looked at.
Therefore it seems quite clear from the case law on the subject that the department are acting illegally in not holding a public inquiry. But it is not necessary to

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rely on case law because, luckily for objectors—although, maybe, not so luckily for the department—I have in my hand a copy of the Highways Manual which is a document which the department make available for their own officials but not for the general public. This sets out the grounds on which in generla terms the department's legal advice is that a public inquiry can be dispensed with.
This is the department's advice to their officials. The edition I have was updated in April 1981. Therefore it clearly takes account of the most recent legislation, the Highways Act, 1980. In discussing when public inquiries may be dispensed with the Highways Manual, at paragraph 31, says:
"The effect of legal advice is that where there are unwithdrawn objections normally an inquiry should be held; and that an inquiry may be dispensed with only when the unwithdrawn objections are few in number and a public inquiry would be unlikely to reveal any information about the grounds of objection which is not already known and none of them raises an issue of substance or a matter of general public importance the arguments about either of which ought to be developed publicly before an independent person".
That is the department's general legal advice about when public inquiries into trunk road proposals may be dispensed with.
It seems to me that it would be perfectly clear to the most casual observer that in this case none of these three conditions is met. The department have admitted in a letter that there are still substantial objections outstanding. It is clear that the first of these three limbs on which a public inquiry has to be held still stands. The unwithdrawn objections are not few in number. That by itself, according to the department's own general legal advice, means that a public inquiry has to be held, and it is therefore clear that the department are acting illegally.
However, there are two other grounds on which a public inquiry could be dispensed with—again, neither of which apply here. There is the point that the objections do not raise issues of substance or matters of general public importance. It is clear from the publicity this case has received in The Times, in Country Life and in a number of other publications, that it does raise issues of general public importance. The department's proposal would drive a dual carriageway through an ancient park designed by Capability Brown, through an area of the park to which the public have recently been given access. It would affect an area of outstanding natural beauty, and that in itself seems sufficient to give rise to matters of public importance. It will also affect other beauty spots, and I will come to those in a minute.
The third ground on which a public inquiry has to be held unless it does not apply is in a case where an inquiry would be unlikely to reveal any information about the grounds for objection not already known. It seems to me from what the department said and the Minister has said in his press release, that this is the basis on which the Government are suggesting that a public inquiry is not needed. As I said, from the case law and their own legal advice, if two out of three of the grounds for dispensing with a public inquiry do not apply, it seems perfectly clear that a public inquiry should be held.
However, let us consider in a little more detail the third point, that there are no issues which could be
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developed and illuminated by a public inquiry, because as I say, clearly that seems to be the Government's argument for not having one. The main issue which should be developed at a public inquiry concerns the question of an alternative route. The objectors have put forward more than one over the period in which this matter has been considered. The first objective of the alternative is that it avoids spoiling the view from Beacon Hill. One of the Government's allegations is that all the objections simply relate to one point; that is, that the road would go through a corner of Highclere Park. That is just straightforwardly untrue, and, from their discussions with the objectors, I believe that the officials concerned know it to be untrue. The alternative route, as I say, has the advantage that it would avoid spoiling the view from Beacon Hill. Beacon Hill is a local beauty spot visited by 200,000 people per annum, according to the county council. It is in the North Wessex Downs area of outstanding natural beauty and has an Iron Age hill fort on top.
It may be of interest that in a book called The Hampshire Heritage, published by Hampshire County Council, Beacon Hill is the only view of the Hampshire countryside which appears. All the other illustrations, relate to buildings and so on. The one view of the countryside which the county council thought fit to put in a booklet describing the heritage of Hampshire is the view of Beacon Hill—a view which, if the department's proposals are accepted by the Government, would have a large flyover bang in the middle of it. The idea that it is only Highclere Park which is affected is nonsense.
The objectors' alternative route had a number of other advantages as well as that it avoided cutting into Highclere Park. At the north end of the scheme the alternative is a great deal safer. Instead of the dual carriageway, under the department's proposals, narrowing into a single carriageway on a long, straight stretch of road with numerous turn-offs to private dwellings, the objectors would have a roundabout. There would be less loss of farmland under the alternative scheme than under the department's scheme—something with which I hope he noble Earl, given our discussions over the Wildlife and Countryside Act, would have sympathy. The alternative route is also shorter, simpler and there-fore cheaper.
That was put forward in October 1980, and the Garden History Society put forward a second alternative in April 1981. The alternative has quite simply been suppressed by the department. There were two public exhibitions held by the Department of Transport at which they refused to allow any mention of an alternative route to be made. Incidentally, they did not even allow the department's own alternatives to be on display, let alone the schemes of the objectors. This means that the one major local expression of opinion in favour of the route—that of a petition with 404 names to it—is entirely discredited. It states clearly that the people signing it have considered the alternative routes and favour the department's preferred option. But as the department have admitted that no alternative routes have been made available to the public at any stage, it seems to me that the petition is not worth the paper the people signed their names on, and it would be quite wrong for the Government to place on it any weight whatsoever.

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The grounds of the objections are not simply that there is a better alternative route, though that is undoubtedly the main thing that should be examined at a public inquiry. I have mentioned Highclere Park. There is now limited access to the park for the first time in 200 years. Access is allowed in the park to a temple which has been recently renovated at public expense. The department did not mention in their summary of comments that the public now have access to the park. This was another issue which has been suppressed in this unhappy and discreditable saga of actions by the department's officials. They produced a summary of objections without mentioning that the one area of the park which would be affected by this road was one to which public access has just been granted. As I have said, the park was designed by Capability Brown, who took the trouble to move this road outside the park; and the department, now that the public have just been given access to the park, are putting the road back in again. This access to which I have referred was arranged by the Historic Buildings Council and Hampshire County Council and has been available since Easter last year.
The third ground of objection, apart from the fact that there is a better alternative route on offer from the objectors, and that Highclere Park is affected and need not be, is the effect on Beacon Hill. There are 200,000 visitors per annum and when you come down the hill the route leads directly to where this new road would be. The existing main road more or less follows the line, but because it is in something of a cutting it is virtually invisible from Beacon Hill. I have seen photographs which show this quite clearly. Under the department's proposals, as I have said, there would be a large flyover at the base of the hill clearly visible to the 200,000 visitors who go up the hill to look at the iron age fort and also at this remarkable view of Hampshire—an area of outstanding natural beauty which the county council are so proud of. Those visitors would look down at the department's new dual carriageway and its vast flyover.
There is a fourth point which I should like to make, which is that the Landscape Advisory Committee have come out in favour of the department's route. I suspect that this may be something which the noble Earl will have been briefed to use in defence of the department's route—and, if not, he should have been, and anyhow I will raise the point for him. The Landscape Advisory Committee's only examination of the site was in March 1978. They looked at a proposal without a flyover at the bottom of Beacon Hill and at that stage the temple in Highclere Park, to which the public now have access, was not restored. It was referred to in the committee's remarks in rather uncharitable terms, but since that time £20,000 of public money has been spent on the temple. It has been restored and is available to the public and a flyover has been put in at the bottom of Beacon Hill, which, as I have said, will dramatically ruin the view from the hill in an area of outstanding natural beauty. I would therefore suggest that the department, among the other things which should be examined at a public inquiry, could ask the Landscape Advisory Committee to reassess the proposals in view, first of all, of the major change in them and, secondly, of the major change in the circumstances of Highclere
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Park and the buildings which would be affected by the proposal.
I realise that to suggest that a department is deliberately suppressing an alternative route and deliberately avoiding the discussion of alternatives in order to avoid a public inquiry are very serious charges to make, but I can assure the noble Earl that I do not make thorn at all lightly. I do not make very much of it, but it seems to me symptomatic of the appalling behaviour by the department's officials in this case that they manage, as The Times reported last week, actually to lose the one map they apparently had of the objectors' alternative route. Apparently, they have had to write to the objectors—this is according to The Times—apologising for the fact that they have lost the map and asking for another copy. That does not seem to me to be the behaviour of a group of officials who are particularly interested in studying the alternative route, and it certainly gives no grounds whatsoever to the objectors for having any confidence in the idea that the officials will be able, in secret, to put the objectors' route fairly as an alternative to the department's preferred option—because that, at the moment, is what will happen.
It has not gone beyond my notice that, because of the rather unexpected collapse of previous business, the noble Earl has not had the benefit of advice for most of the period in which I have been speaking. In any event I know for myself, from coming to answer Unstarred Questions of this kind, that the brief is written and the noble Earl has his advice and is not very likely to be able substantially to change what he has to say. But, I suggest to him, in all seriousness, that there is a real scandal involved here; that the department has behaved badly; that it is clear that, if it is taken to court, its actions will not be defensible, both on the grounds of the reported case and on the grounds of the department's own legal advice. But maybe that would be a difficult point for the noble Earl or his advisers to accept, so may I put another one to him?
Putting an exceptionally charitable light on the matter, it seems to me that the department's officials have misdirected themselves in suggesting, as they clearly have, to Ministers so far, that there is only one ground for objection to this route; that is, the damage to Highclere Park. It is fair to say that, if the department's officials had simply read the publicity which this case has attracted, that is the impression which they would have gained; that the objectors were objecting solely on the grounds of damage to Highclere Park. The letters which I have seen, and the press statement by the Minister, seemed to be clearly based on that premise—that there is only one point at issue; whether the road should go through the corner of Highclere Park or not.
As I have tried to make clear, that is not at all the case. There are a number of other grounds for the objection, not least the effect on Beacon Hill and the numerous advantages, which I have listed of the alternative proposal. It seems to me that it would be wise for the department to have the opportunity to study what I have said, particularly as they were not present when I said it, and see whether it would be worth while having a public inquiry to look at these various other issues, which it seems clear from all their public comments, and from meetings which they have had with

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the objectors that the department has not taken into consideration so far.
So I ask the noble Earl by all means to answer in his own way the various points that I have made, but at least to say at the end of his remarks that he will ask his officials to study what I have said, to look at this point about there being a number of other issues, apart from the damage to Highclere Park, which it might be sensible to look at at a public inquiry, and to delay making a final response to my question until that has been done, and he can write to me after these various points have been carefully considered.
7.53 p m.
Lord Underhill: My Lords, I am certain that my noble friend has made a very effective case to which the Government really must give answers. I want to avoid repeating what my noble friend has said on a number of points, but it is clear that his reference to alternative routes is very important. I understand that a copy of the preliminary report, which was issued by the department in February 1980, made clear that the public consultation was very limited, in so far as it requested views on only one route which it described as the western route. The department's document stated that, overall, that is the best solution. That must imply that other solutions were considered; in other words, other alternative routes. That is reinforced by the department's statement going on to say that the western route is also the least damaging agriculturally. A proposal cannot be the least damaging, unless other alternatives have been considered. Therefore, that would appear to justify what my noble friend has said about alternative routes.
The official departmental document, a press notice, stated as recently as 30th November 1981 that the Secretaries of State for the Environment and Transport had decided not to hold a public inquiry. The document mainly comprised a statement by Mr. Kenneth Clarke, the Under-Secretary of State. He said that they had received an "appreciable number of objections". Those were his words, not mine. But he seemed to dismiss these objections by stating that these are,
"mainly from groups and individuals outside the immediate area, but who are concerned about the effects which they believe the new road would have on the historical Highclere Park".
It is clear from what my noble friend has said that the objections, serious as they were, went far beyond Highclere Park. But whether they are confined to Highclere Park or go beyond it, it appears that they are sufficiently important to justify the holding of an inquiry.
Surely, it is not sufficient for the Under-Secretary of State to comment that,
"The Secretaries of State will take into account the views of the objectors about the historic and intrinsic value of the park".
That could be said about almost any scheme, to justify not holding an inquiry. It can always be said that the Secretaries of State will take these matters into consideration, and that there is therefore no need for a public inquiry. So the whole public inquiry procedure could be brought into disrepute. I suggest that it is rather an "I know best" attitude.
The number of protests, in the form of letters and signatures to the petition, has been agreed by the
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noble Earl, Lord Avon, because he gave these figures in his reply to a Question and to supplementary questions in this House on 1st February. My noble friend made reference to the Highways Manual, and the fact that the number of outstanding objections is not few appears not to be countered by the figures given by the noble Earl on 1st February.
The questions which have to be answered by the Minister are: Is it correct that the objectors themselves put forward an alternative route, with good justification for that route? Is it correct that no choice of routes whatever has been put to the public? Is it correct that no alternative routes, or choice of routes, was mentioned, either at the first consultation or at the public exhibition which was subsequently held? Is it correct that no alternative routes were put to the district council or to the parish councils concerned? These would appear to be very important questions. Is it correct that, as my noble friend has said, the petition supporting the scheme referred to various possible routes having been considered? If that is correct, what were the alternative possible routes? Who gave them details of possible alternative routes, which apparently were not given to the public or to the councils concerned?
My noble friend asked, in referring to the Highways Manual, whether or not the objections raised issues of public importance. It would surely appear from what he said that the question of Highclere Park itself is of public importance. The question of which scheme does the least damage to agricultural land is of general public importance. The interference with scenic views from other spots is also a question of national importance and that, and other matters, are issues which a public inquiry should cover.
I make it absolutely clear that I am not arguing for or against the proposed scheme. I am arguing only on the question that there appears to be sufficient justification for a public inquiry to have been held in this case. I recall that on 1st February, when answering questions in this House on this matter, the noble Earl seemed to agree with his noble friend Lord Boyd-Carpenter. who referred to the cost of public inquiries, and said that to resort to such inquiries was the easiest way out for the Minister, so as to avoid taking responsibility for decisions.
I hope that will not be the attitude taken tonight by the noble Earl, for it would be a reflection upon the provision in numerous Acts of Parliament for public inquiries to ensure that all the facts are uncovered, that all possible alternatives are looked at and, frankly, to avoid the possibility of bureaucratic control. It would appear that in this case there is every possible reason for a public inquiry. I know that it is often difficult for Ministers to retrace their steps, but it would appear in this case that they should take heed of these various points. Apart from looking into the facts of the matter, a public inquiry is surely there to allay public concern. As there has been so much public concern voiced about this matter, I believe that the Government ought to take a look at it and see that a public inquiry is held. I support my noble friend.
8.1 p.m.
The Earl of Avon: My Lords, I am impressed but of course not surprised by the determination with which

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the noble Lord, Lord Melchett, has pursued this matter and by his customary skill in presenting his case. Before I reply in some detail to his question, I think it would be helpful if I said a few words about the scheme itself. It may help to put matters in perspective from the Government's point of view, as we see it.
As we have heard, the A.34 forms part of the trunk road between Southampton and the Midlands. It carries a high proportion—between two and three times the average—of heavy goods vehicles. I stress that point because there has been some comment that this is not so. About five miles south of Newbury the A.34 passes through the small community of Whitway in Hampshire. The road through the village is very narrow and the amount of traffic, in particular the heavy lorries, makes life unpleasant for the local residents as they go about their daily business.
The Department of Transport has recognised for some while that something must be done to improve the conditions at Whitway, both for residents and for drivers. An improvement along the line of the existing road was ruled out because this would not have provided any relief for Whitway. Indeed, it would have affected the village even more severely than the present road. This left a by-pass as the only acceptable solution. Three alternative routes were investigated: one passing to the west of Whitway and the A.34, one to the east and a third route also passing to the east of the village which was in part a combination of the other two routes.
The western alternative passes just within the eastern boundary of Highclere Park which is undoubtedly, as the noble Lord, Lord Melchett, has said, an historic garden and landscaped park of some note. I slightly take issue with him. Although I believe that Capability Brown was not directly responsibility for the end result, his designs were used in the remodelling of the park in the 18th century. This western route, to which the noble Lord, Lord Underhill, also referred, was considered to be less damaging to Whitway, less damaging to agriculture and to the landscape generally and also less costly. The department therefore decided in 1979 to seek the views of the public on the western alternative only, explaining at the same time the reasons for rejecting the alternatives to the east of Whitway.
Lord Melchett: My Lords, I do not want to interrupt the noble Earl too much, but just so that nobody thinks we are talking at cross-purposes may I say that the two alternatives which he has just mentioned were the department's alternatives, not the alternative of the objectors which, as I said earlier, was presented to the department somewhat later. I think it would be helpful if the noble Earl could confirm that.
The Earl of Avon: My Lords, that is quite correct and I shall be coming to it as my saga continues. We are still only in 1979. There was not a large response to this, but most of the people who replied either supported the route proposed by the department or had no objection to it. Subsequently the department published draft orders for the western route setting out the line of the proposed road and the alterations that would be necessary to existing roads,
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together with an order which would authorise the acquisition of the land required. These orders were subsequently withdrawn following objections to some of the details of the proposals, and revised orders were published in March 1981 which took account of these earlier objections. The new orders in their turn attracted objections, but also a great deal of support. It was then necessary for my right honourable friend to decide whether to order a public inquiry.
The noble Lord, Lord Melchett, has said that objections to the department's scheme cover more than just intrusion into Highclere Park, and of course literally that is right. As he said, various objectors have mentioned the view from Beacon Hill, the loss of farm land and the traffic figures. Few could doubt, however—I think the noble Lord, Lord Melchett, will agree—that the main thrust of objections to the scheme is that it enters Highclere Park. Indeed, the alternatives provided by both the Highclere Park Action Group and by the Garden History Society were designed specifically to avoid the park. Be that as it may, I can assure noble Lords that in reaching a decision on the orders my right honourable friends the Secretaries of State will continue to take full account of all points made by objectors.
I should add, as the noble Lord seemed in some doubt about the point when we last discussed it, that supporters of the preferred scheme would have been aware that alternative routes had been considered because the department explained the reasons for rejecting these at the public exhibition. I cannot agree that the department did not take seriously the alternative routes for this scheme which were put forward by objectors. The south-eastern regional office have had a number of meetings with objectors. Indeed, the original orders were withdrawn and new orders published specifically to meet detailed objections.
As I have mentioned, proposals for alternative routes were submitted both by the Highclere Park Action Group and by the Garden History Society. The former put forward two suggestions in August 1980 and two further suggestions in October 1980. The department's officers discussed them at some length with a representative of the action group at the public exhibition of the draft orders on 21st March 1981. The Garden History Society's alternative, which is in fact very similar to those put forward by the action group, was submitted in May 1981 in the form of sketches and supporting notes. Meetings were held with the society's representatives in July and October 1981. Further discussion has taken place since the decision to dispense with a public inquiry was announced. I had heard about the loss of the map. My department is very sorry that the original plan was lost, but I gather that it has produced its own copy of the action group's works.
Lord Melchett: My Lords, the noble Earl mentioned the public exhibition and did so in the context of the petition which supported the department's preferred route. I hope he will not want to mislead the House. Could he confirm that at none of these public exhibitions and nowhere in their discussions with the parish councils and others involved did the department publish their own alternatives which, as the noble Earl said, they considered and dismissed, nor did they allow

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the Highclere Park Action Group's alternative to be displayed to the public. That is why the petition supporting the preferred option is so worthless.
The Earl of Avon: My Lords, my understanding is that at the first public inquiry, which was probably way back in late 1979 or early 1980, they did set out the alternative routes. The noble Lord shakes his head, so I shall have to confirm it, as I was not there.
That, very briefly, is the background. I should now like to say a few words about the statutory position as it applies to the holding of a public inquiry. I apologise if what I am about to say may seem tedious but it is crucial to an understanding of why my right honourable friends decided not to hold an inquiry.
The relevant statutory provisions are to be found in one of two Acts, depending on the type of order. For an order establishing the line of a new road, or making provision for alterations to existing roads, the Highways Act 1980 is the appropriate authority. For a compulsory purchase order, the provisions are to be found in the Acquisition of Land Act 1981. When my right honourable friends come to consider whether to order a public inquiry they are normally faced with one of two positions. In the case of an order published under the Highways Act, if there are unwithdrawn objections from a local authority or in certain circumstances, a navigation or water authority, they must hold a public inquiry. lf, on the other hand, there are no such statutory objections, then it is open to my right honourable friends to dispense with an inquiry if they consider that in the circumstances it is not necessary to hold one. I shall come to that point in more detail in a minute.
For compulsory purchase orders, the requirements of the Acquisition of Land Act are slightly different insofar as every owner, lessee or occupier of land included in the order is a statutory objector. Otherwise, the effect is broadly the same as for orders under the Highways Act. I will now return to the Whitway Diversion, and explain in a little more detail than perhaps I have been able to do in answer to the noble Lord's earlier questions, precisely why my right honourable friends decided not to hold a public inquiry.
A few moments ago I mentioned the alternative schemes considered by the Department of Transport, and the events leading to the publication in 1981 of draft orders which took account of earlier objections. The revised proposals themselves attracted a number of objections—225 in all, 165 of which were signatories to various petitions. Several of the objections were from prominent and respected bodies in the field of conservation and environmental protection. In fact, the noble Lord listed some of them.
However, none of the objections were from persons or bodies such as would have required the holding of an inquiry under the terms of either the Highways Act or the Acquisition of Land Act. Incidentally, very few were from local people. My right honourable friends therefore had to decide whether or not in the circumstances an inquiry should be held. It is fair to say that they did not reach their decision lightly.
As I have already indicated, there were a number of objections. However, the objections are based almost entirely on one aspect—opposition to the routing of a new road through the edge of Highclere Park and, of course, the views from Beacon Hill. Some objectors
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called for a public inquiry because they considered that this aspect of the proposals was so important that an opportunity should be given for the objections to be considered by an independent inspector. But the purpose of a public inquiry is to inform Ministers of the weight and nature of objections. In this case, opponents of the scheme have stated their case with, if I may say so, admirable clarity. As a result, the point at issue is quite straightforward—whether the protection of Highclere Park from any intrusion at all justifies the choice of another route which is, in other respects, less desirable.
Lord Melchett: My Lords, the noble Earl, Lord Avon, persists in saying that there is only one point at issue, whereas he himself said at the beginning of his speech that, in the light of what I said, he acknowledged there was more than one point at issue. Does this not mean that it would be worthwhile for the department to have another look at this?
The Earl of Avon: No, my Lords, it does not. At the same time, my right honourable friends also took account of the substantial local support for the scheme. They concluded in all the circumstances that an inquiry was not necessary. It would not usefully contribute anything to their consideration of the objections which was not already known or would become known when objectors had been given a final opportunity to amplify their objections. An inquiry would inevitably lead to further delay and uncertainty, which my right honourable friends felt could simply not be justified. I should add one further point on the procedures. Some, including the noble Lord, have suggested that objectors in this case should have been given the opportunity to comment on the decision not to hold a public inquiry. Ministers considered this point but, given that they were already satisfied that no inquiry was necessary, they saw no useful purpose in asking for such comments. And there was, of course, no legal obligation to do so.
To clear up any confusion about the legal requirements for when a public inquiry should or should not be held. I will try to clarify the position further. There are three aspects to the matter. First, there is the statutory position. The Highways Act 1980 is quite clear that in certain circumstances a public inquiry need not be held. If there are no statutory objectors to line or side road order, then under paragraph 7(2) Schedule 1 of the Act Ministers:
"may if satisfied that in the circumstances of the case the holding of an inquiry under this paragraph is unnecessary, dispense with such an inquiry".
The noble Lord, Lord Melchett, has already referred to this. There is similar provision relating to the compulsory purchase of land in the Acquisition of Land Act 1981—this is the legal, statutory position.
Secondly, there is the legal advice mentioned in the Highways Manual, from which the noble Lord has quoted. This is general advice on the interpretation of the statutory position and, like everything else in the manual, is intended as guidance to officers in their day to day consideration of road schemes. It is not, and is not intended to be, specific advice for each specific case that arises. And more importantly, it does not bind Ministers and officials in a way that the

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statutes do not. It is a guide and not legally binding. Thirdly, there is the specific advice given to Ministers on the A34 Whitway diversion. I cannot, as I have already explained to the noble Lord, say what that advice was. I can only repeat that Ministers satisfied themselves that no inquiry was necessary in this case. I accept that Ministers would normally order an inquiry to be held where there were a significant number of unwithdrawn objections. But this was not a normal case.
As I have explained, the department's scheme had considerable local support, including that of the main land owner in question, and little local opposition. My right honourable friends were satisfied that they had, or would have in response to the letter asking for final comments, sufficient information to take a decision on the orders. And they were satisfied that the issues were sufficiently clear cut to enable them to decide without the advice of an independent inspector. In sum, they were satisfied that they did not need to hold a public inquiry in this case.
I do not consider that anything either discreditable or underhand has been done. I do not believe that, in any sense, the word "scandal" could be used in this particular connotation. I hope that I have illustrated to the House this evening that a great deal of consultation and interest has been taken at all levels. The noble Lord, Lord Melchett, asks whether the Government will now reconsider the decision not to hold an inquiry. I have to say, No. I must stress, however, that no decision has yet been taken whether or not to make the orders themselves. En this context, the noble Lord's research will not have been wasted and, in this context, the remarks he made this evening will be carefully studied.

John Francis Dare and Gillian Loder Dare (Marriage Enabling) Bill [H.L.]
  Hugh Small and Norma Small (Marriage Enabling) Bill [H.L.]
  The Bills in the form approved by the Personal Bills Committee were presented and read a first time.