Civic Government (Scotland) Bill [H.L.]

HL Deb 26 January 1982 vol 426 cc866-918

3.18 p.m.

The Earl of Mansfield

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(The Earl of Mansfield.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ABERDARE in the Chair.]

Clause 23 [Second-hand dealers' licences]:

On Question, Whether Clause 23 shall stand part of the Bill?

Lord Ross of Marnock

This is a very important clause in a very important Bill. We have already covered, in the schedule, the whole general procedure in relation to licensing, and here we come to one of the first regulations in respect of certain trades that shall be required to have a licence in order to carry on business—provided, of course, that the district authority, the licensing authority, first passes a resolution to apply it. Here, this relates to second-hand dealers. A second-hand dealer is described as a person carrying on a business as a dealer in second-hand goods or articles of any description; but it leaves out pawn-brokers and certain people dealing in small quantities of materials. I do not know whether they realise it in Scotland, but once this resolution is passed and applied to them those people will be subject to a very considerable burden of paperwork. They are going to have to keep records about the time and date that an article is acquired, a description sufficient to identify it, the price paid, the name and address of the person from whom acquired, when it is sold, and to whom.

Bearing that in mind, we shall have to look at who are involved. I do not know what noble Lords think about second-hand dealers. Perhaps they think of the junk shop type of person. But everyone who sells a painting, apart from one that is very modern, is dealing in second-hand goods. People who buy stamps are dealing in second-hand goods. There are people who buy second-hand books and many book-sellers have departments for second-hand books, and it may be that, like me, many of your Lordships have prowled around them and have picked up books here and there. Nobody has asked me for my name and address and I have not asked the dealer from where he got them and when he got them and the time. But when you think of it, people who buy second-hand books do not usually buy them for resale; they do not usually buy them as single books but probably by the shelf-full or they buy a whole lot, perhaps at a sale in some house. Somebody who wants to get rid of a library will sell the lot. But every single item has later to be handled in a particular way. The thing is nonsense when applied to certain of the second-hand dealers in antiques, clothes, stamps, books.

Once the resolution is passed, is there any flexibility left to the local authority to leave out of account certain of the second-hand dealers; or have all the provisions to be applied and also the following clauses about keeping records of stock-in-trade, and of limiting the sales? Stock has to be kept for, I think, 72 hours before it can be sold. It is really silly when you apply it to the practice of different businesses. I had a complaint today about English metal dealers who in the present circumstances arc looking very much for orders for export. To be told that the scrap that they bring in must not be processed and sold for 72 hours is something that they regard as an infringement of business practice. But the point is that at the moment most of these people in Scotland do not know what is going to hit them.

I want to ask the Government whether, in regard to their definition of second-hand dealer, they have even thought of this particular problem. Imagine a boy going into a stamp shop, asking for a packet of stamps and paying perhaps 50p for it. Every single stamp must be detailed as to where it was bought and when it was bought before it was packaged by the stamp dealer. It is really a nonsense. I hope that the Government appreciate the difficulties they are going to get into with this generic term of second-hand dealer. I know a number of booksellers. There was one who was my colleague in the other place for a long time, George Willis. When I was in Edinburgh recently he put the problems to me. We have had quite a few Members of Parliament who dealt in second-hand books. Sir Will Y. Darling was another. I wonder what nonsense he would have produced to laugh this kind of thing out of court when applied to second-hand bookshops.

It is not good enough to pass this and the previous clauses and then face up to the difficulties later on. I am going to suggest later on that some flexibility be given to local authorities to leave out of account certain types of business in respect of these provisions. I know the arguments. This is to put a deterrent on theft and the fencing off of goods which have been taken from houses, shops and elsewhere. But, frankly, I think it will be a considerable burden on certain second-hand dealers that is unmerited by the facts of their business and the procedure will prove more troublesome than helpful.

The Earl of Selkirk

I have considerable sympathy with what the noble Lord has said. I was going to make one or two remarks of a similar character concerning metal dealers, whose situation is very complex. But could not some of these provisions be made in subordinate legislation? The trouble with a Bill is that it will not be amended for many years, but sub-ordinate legislation can be changed and more easily adapted when certain items prove difficult to handle. I do not know whether it is necessary to go into all these details, but surely it would be better to have a procedure that could be more readily adapted when some of these items become too onerous.

3.28 p.m.

The Earl of Mansfield

I am grateful to my noble friend Lord Selkirk and the noble Lord, Lord Ross of Marnock, who have expressed their anxieties, if that is the correct word, in respect of this clause. May I begin by saying why it was felt, not least by the working party, that there should be a form of control over the second-hand trade and its activities. The reason is that the second-hand trade is an obvious, convenient and, regrettably, all too common outlet for stolen goods. Not least the police consider it essential that there should be some means of scrutiny and control over trade in those areas, or in those types of merchandise, where crime prevention is a desirable and a significant feature. Equally, we recognise that there are areas and types of trade in which licensing may serve no useful purpose, and it is for this reason that the provision is included, so far as this clause is concerned, on an optional basis to be used if, and to the extent that, local circumstances may so warrant.

At present, there is a mandatory licensing system for brokers in what were formerly the burghs in Scotland. The working party recommended that brokers or second-hand dealers should be licensed and they proposed a mandatory licensing system in the consul- tation document. However, in the light of many comments received, we have opted instead for a discretionary licensing system. This will allow licensing authorities discretion to decide what kinds of second-hand dealing should be made subject to a licensing requirement to meet the local situation.

The noble Lord, Lord Ross, illustrated his argument with a number of activities. Clearly, for instance, it would be most unlikely that the licensing authorities would require second-hand book dealers to be licensed. Of course, that does not require any amendment to the Bill. Obviously, to provide an exemption for second-hand book dealers or stamp dealers would be to imply in effect that other kinds of second-hand dealing which were not included in the exemption provisions were right and proper candidates for licensing; and that is not our intention. That is why very few exceptions have been made in the Bill.

What we did not want to do was to consider each and every kind of possible second-hand trading and decide on the fitness of each or any of them, either for inclusion or exclusion in the Bill or indeed in subordinate legislation. We have taken the sensible course of leaving the matter to the local licensing authority to decide in the light of local circumstances and in response to local representations.

The noble Lord, Lord Ross, asked whether the Government have thought about these licensing provisions. The answer is that we have and we continue to do so, not least in the light of fears expressed by the local authorities. We believe that there can be some improvement to allay the fear that there are going to be blanket provisions which will cover all forms of a particular kind of second-hand trading. The difficulty is to steer the course between imposing on a small trader a blanket obligation to record the purchase and sale of every small item, which the noble Lord, Lord Ross, quite rightly condemned, and equally not to impose some bureaucratic nonsense which would be difficult to enforce. Nor could one—taking that argument a stage further—impose on traders difficulties which would not be justified by the results which might be expected to be achieved in the prevention of crime and the recovery of stolen goods.

What, therefore, the Government are considering—and what we hope to provide—is a form of non-statutory guidelines for the licensing authorities. They will give some indication of the manner in which particular types of second-hand trading may be distinguished, and licensing requirements will be imposed only where the type of merchandise or value of the items dealt with or the amount of business carried out—the volume of turnover, for instance—would indicate a real need for such control.

One is left therefore with our intention that a particular trade or type of trade should only be included where there is a positive reason for its inclusion: that its inclusion would require express provision in the resolution; that adequate opportunity be given to the trade association concerned to make such representations to the licensing authority about the inclusion of their particular trade as seemed to them appropriate; and, above all, to provide an element of flexibility which will avoid the pitfalls which I have tried to illustrate.

In the circumstances, I hope that the Committee will agree that the clause, as it stands, is an essential and worthy part of the Bill. We are working hard to see to it that it will have the effect that we want, and certainly not have the effect that the noble Lord, Lord Ross, in particular, prophesies for it.

Lord Ross of Marnock

We are all glad to hear what the Government have to say about this: that there is going to be some guidance given to local authorities as to what phrase should be included and what should be excluded. Unfortunately, the Bill does not say that. Once a resolution is passed to give them power to deal with the licensing of second-hand dealers—and that is just the one phase—then second-hand dealers must be licensed. There are the words " shall be required ". Then we have the definition of who shall require it: second-hand dealer ' means a person carrying on a business as a dealer in second-hand goods or articles of any description … ". So there is no flexibility in the clause for the local authority unless somehow or other somewhere we put it in. I ask the Government to look at that as well.

I had hoped that we might have had an explanation of what the Government propose to do about the actual clause. But if they insist upon the clause and then think that they can give guidance to local authorities as to who shall be in and who shall be out in relation not to particular people in the trade but certain sections of the second-hand trade, I do not see the powers in this clause to enable that to be done. I do not ask for an answer from the Government at the moment other than that they are prepared to look at this matter.

One of the greater troubles here is not the licence, it is all that follows in respect of the burden of the paper work that has to be done by people in business. I tell the Minister in relation to certain of the businesses that I have mentioned that it is quite impossible and unfair to expect them to do this, or even to go through the motions of saying that they are doing it, when everyone knows that it cannot be done. Despite the phrase " reasonably practicable to do so " in Clause 24, about keeping records, I do not think that we want to legislate for things that just cannot be done.

The Earl of Selkirk

I have great difficulty in seeing how flexibility can be worked into this. The words of the statute are concrete: 24.—(1) A second-hand dealer shall keep records in accordance with subsection (2) … ". I do not see how you can modify that by subordinate legislation.

Lord Wilson of Langside

I share many of the misgivings expressed by the noble Lord, Lord Ross. I was not at all reassured by the answer of the noble Earl. He suggests guidelines. I cannot see that they would dispel some of the uncertainties which may arise from the operation of this clause. I hope the Government will give very careful attention to the points raised by the noble Lord.

The Earl of Mansfield

I hesitate to question the noble and learned Lord, Lord Wilson of Langside, when he starts to construe a clause. However, where I think all three noble Lords have erred is that they are not reading this clause with Clause 9, which sets up the licensing provisions. Clause 9 applies to a number of different clauses throughout the Bill, of which this is one. If one reads this clause with Clause 9 then the issue becomes quite plain. With respect to the noble Lord, Lord Ross, he is not reading the clause correctly. I am sorry to have to disagree with him rather flatly. If it is claimed that in some way this is a defective clause which will have onerous and unjustifiable effects on second-hand dealers in Scotland, I must refute it because it simply is not so.

Noble Lords say that they do not see how the element of flexibility can be imposed by the guidelines. I see no reason why it should not. It will be up to the licensing authorities, when they come to frame their resolution, to frame it in such a way that they will provide a degree of flexibility. We are going to make various suggestions so that they will avoid the pitfalls which noble Lords have illustrated this afternoon. Of course I will take this matter away and look at it again. It is implicit from my remarks that this Part of the Bill which relates to licensing is the subject of a continuous review process by the Government. That will continue until after the Bill becomes an Act. For the moment, I simply ask the Committee to pass this clause into the Bill.

Clause 23 agreed to.

Clause 24 [Keeping of records of stock-in-trade]:

3.40 p.m.

Lord Ross of Marnock moved Amendment No. 50A: Page 17, line 19, leave out (" shall ") and insert (" may be required by the licensing authority to ")

The noble Lord said: Here I am trying to be helpful to the purposes of the Government and to provide them with a certain amount of that flexibility I suggested was essential. It meets with the desire of the Government for giving power to local authorities if, instead of the word " shall ", we put in the words: may be required by the licensing authority to ". It is so simple and so easy to meet the Government's point that no further words of mine are necessary to persuade the Committee that this should be done. I beg to move.

The Earl of Mansfield

I will consider this one, if I may. It is indeed simple, as the noble Lord has said. I think we just do have to bear in mind that in the Burgh Police (Scotland) Act the keeping of records was and is seen as a desirable feature as part of crime prevention, and there is an argument which has been put forward—and it is the only one really which prevents my accepting the noble Lord's contention here and now—that if it were left to the local authority to decide whether or not books should be kept, this would negate the purpose of controlling second-hand dealers by licensing.

One can turn the argument the other way round and say that if a local authority felt, or indeed was convinced so that it came to pass a resolution, that a particular activity should be licensed but that books or book-keeping was unnecessary, one can hardly see how it would be convinced that it is necessary to license the activity anyway. But I am attracted by the proposition in effect that local authorities should be given a discretion, and if the noble Lord will be good enough to withdraw the amendment for the time being I will take it away and obtain further advice on it.

Lord Ross of Marnock

I am very grateful for that. After all, we must remember that the local authority do not need to apply the section at all. They are completely free not to pass the resolution, but if they do and with all the flexibility in the world they apply to particular trades, it may well be that they think they do not require to keep, not books—there is not a firm in the country that pays income tax that is not required to keep books that can be inspected—what they are required to do is to keep records. Paragraphs (a), (b), (c), (d), (e), (f) and (g) are detailed in relation not to the keeping of books but to the carrying on of their business—who they buy things from, who they sell them to and when. That is a very different thing from the statement made by the Minister about the ordinary business of the keeping of books. This is particularly laid down here in Clause 24(1), and I hope that if my words are not suitable he will be able to find some that will meet the case and are more acceptable to the draftsmen in the Scottish Office. In that case, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Selkirk moved Amendment No. 51:

Page 17, line 33, at end insert— (" () In any criminal proceeding, information recorded under subsection (1) above may be made available by order of the court.").

The noble Earl said: I beg to move this amendment. I am not sure that it is necessary but these records, if kept, should be available to the courts if they require them. There may be some provision elsewhere where this is covered, but it does not seem clear to me, in this Bill at all events, that this could be demanded by the court. Perhaps my noble friend would tell us whether there is some other part which contains that power. If so, this amendment is not necessary.

The Earl of Mansfield

I am assured that powers already exist for the recovery of records at the order of the court where these are required as evidence in criminal proceedings. I am sorry that I am not able to quote chapter and verse—in other words, the legal authority—for what I am saying to my noble friend at the moment, but perhaps he would be content to rest on my assurance for now. I promise him that I shall have the legal authority for what I am saying before the night is out. If he is so content, perhaps he will see fit to withdraw the amendment.

The Earl of Selkirk

I am grateful for what my noble friend has said. I expected that answer and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Ross of Marnock had given notice of his intention to move Amendment No. 51AY: Page 17, line 46, after (" person ") insert (" required to keep records under this section ").

The noble Lord said: This is exactly the same point that the Minister has promised to look at, and I therefore do not propose to move this amendment.

[Amendment No. 51AY not moved.]

Clause 24 agreed to.

Clause 25 [Disposal of stock-in-trade]:

The Earl of Mansfield moved Amendment No. 51AZ: Page 18, leave out lines 12 to 21.

The noble Earl said: This is a drafting amendment which eliminates unnecessary verbiage. Subsections (3) and (4) duplicate the general provisions in Clause 29, subsections (2), (3) and (4) empowering the courts to make an order prohibiting disposal of stock-in-trade within seven days of acquisition. These subsections are therefore redundant and this amendment deletes them. I beg to move.

On Question, amendment agreed to.

On Question, Whether Clause 25, as amended, shall stand part of the Bill?

Lord Ross of Marnock

There is only one point I query here, and that is the point of the 72 hours. Will there be reconsideration as to whether it is right to require people to keep goods for 72 hours? It may well be there is no question of theft involved in their type of business. I would think myself that 36 hours might be plenty.

The Earl of Mansfield

I am perfectly happy to consider that. I think the noble Lord has to bear in mind now the five-day week, bank holidays and particularly such times as Christmas and New Year, when the period of festivities goes into hundreds of hours. But I will certainly look at it again.

Lord Mishcon

I wonder whether the noble Earl could help me on this. Those of us who are not accustomed to the Scottish courts but who have obviously a great respect for them, do not know what you can do by way of making a summary application. I see that a summary application can be made to a sheriff for permission within the 72 hours to sell a commodity which has just been purchased. Is there sufficient procedure to see that those applications can be made in the Scottish courts and dealt with, presumably after an investigation, within a period of 72 hours? It is a matter which the English courts ought to follow with great diligence, and I think we would look with great jealousy at that if we were told that this was an easy matter in the Scottish courts.

The Earl of Mansfield

The noble Lord, who used to brief me in my early days, has really given me a very googly ball, if I may say so. The answer is that I do not know, but I will find out.

Clause 25, as amended, agreed to.

Clause 26 and 27 agreed to.

Clause 28 [Sellers of second-hand goods: offences etc.]:

Lord Ross of Marnock moved Amendment No. 51A: Page 19, line 31, leave out subsection (4).

The noble Lord said: This amendment suggests that we leave out subsection (4). Subsection (2) of the clause says: If anything is offered to a second-hand dealer in the course of his business and he has reason to believe that it has been stolen or otherwise unlawfully obtained he may, subject to subsection (3) below, detain the person offering it and a constable may arrest that person and take possession of it ". He cannot be detained longer than is reasonably necessary for obtaining the attendance of a constable, which may be quite a long time. Then there follows subsection (4): No civil liability shall arise as a result only of the detention in good faith of a person under subsection (2) above ". So that a person who is detained quite wrongly—it might be in a public shop and considerably to his embarrassment—has no recourse to law to obtain recompense.

I should have thought that it was unfair to take away this right of an individual in a case like that, where he is being accused, or where everyone is being led to believe that he has obtained something which he is proposing to sell illegally. It may be that he is detained for quite a time. The Bill states that it shall be until a constable can be obtained. That might be a reasonable time, but it might be quite a long time, and it would take away a person's civil rights in respect of improper detention. Was this special right given full consideration by the working party? I beg to move.

The Earl of Mansfield

The working party recommended that second-hand dealers should have the right to detain anyone offering articles thought to have been stolen or unlawfully obtained. The Government accepted this recommendation, but we thought it prudent to protect the second-hand dealer who had acted in good faith against the possibility of civil action arising from the detention of a suspect. We thought—and, in fact, still feel—that without this provision in the Bill the dealer would feel unable to act even when he had good reason, because he would not be protected against a civil action for what may have been a perfectly genuine mistake. Clearly, this provision in Clause 28 will greatly assist the police in certain instances when they are trying to find stolen property. We were fortified in this, because, as I have said, the provision was included in the consultation paper and no adverse criticism was attracted.

As the Committee will be aware, there are two safeguards for the seller. First, there is the requirement that the dealer must have " reason to believe " that the object has been unlawfully obtained. Secondly, the dealer may not detain the seller longer than is " reasonably necessary " to obtain the attendance of a constable. Therefore, the existence of these two tests does not exclude civil liability where the tests can he shown not to have been met.

One is always anxious to hold a fair balance as between the rights of the individual and the perfectly laudable ambition of the police to clear up crime, and not only to detain the thief but to seize possession of the stolen goods before they can be dissipated, as they all too often can be on the second-hand market. I think that this clause holds a fair balance and I hope that the noble Lord, Lord Ross, will agree.

Lord Ross of Marnock

It holds a fair balance of some kind, but I am afraid that many people would not construe it as fair. It is very much to the advantage of the dealer rather than the seller, as the dealer has only to act in good faith. How one proves good faith, I do not know. I am perfectly sure that neither would the Minister of State. The other point is on the words, reasonably necessary for obtaining the attendance of a constable ". I know certain parts of Scotland where it would take half a day to obtain the attendance of a constable, but, in that case, that would be construed by the courts as reasonable. So will any guidance be given by the Scottish Office in respect of that? I have no desire to detain the Committee on this point and I am prepared to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 28 agreed to.

Clause 29 [Functions of the court in relation to second-hand dealers convicted of offences]:

3.55 p.m.

Lord Ross of Marnock moved Amendment No. 51B: Page 19, line 37, leave out (" of ") and insert (" for lodging an appeal against ").

The noble Lord said: This is on a point which I raised earlier in relation to the reporting back of a conviction to the licensing authorities. After all, if a man is convicted he has the right of appeal. It may well be that on appeal the conviction will be quashed and in that case it will be unfair. On the previous occasion, the Minister of State said that further consideration would be given to this. I know that the wording of my amendment now is not exactly correct, and neither was the wording of my previous amendment, so from that point of view I do not propose to move the amendment.

The Earl of Mansfield

I wish that the noble Lord would move it.

The Lord Ross of Marnock

Then I shall be happy to move the amendment. I am so surprised that the Government are even listening to anything I say. I do not think that the wording is too good, but who am Ito argue with the omnipotent and omniscient. I beg to move.

The Earl of Mansfield

I wanted the noble Lord, Lord Ross, at least to move his amendment, because such is the speed with which the Scottish Office works—which was not wholly to be welcomed, may I say, by the noble and learned Lord, Lord Wilson of Langside, on a previous occasion when the Bill was debated—that we have already considered the noble Lord's earlier amendment to Clause 9(5) of the Bill, though, of course, I have to confess that there has been an unusually long period between the different days in Committee on this Bill. What we have done is to consult the Scottish Courts Administration and I am now of the opinion that the Bill as drafted is, indeed, adequate. If the amendment were accepted, it would introduce an inconsistency of approach in the area of conviction and sentence intimation, which, so far as the courts are concerned, is a single sweeping-up operation within a day or two of the court disposal.

The inference behind the amendment is that a convicted person ought to be considered innocent until he appears to accept the court's decision by not appealing against his conviction. This is unacceptable in principle and in practice. The provisions proposed in the Bill are no different, for instance, from the provisions which apply to driving offences and which involve disqualification. The present administrative procedures for the notification of appeals will ensure that the licensing authorities will be notified immediately when any appeal is lodged. Therefore, there will be no injustice and I hope that, in the circumstances, the noble Lord will rest content.

Lord Ross of Marnock

I shall rest content. But the clearing-up process means that there will be an intimation and paper work in respect of conviction, which will be repeated in respect of an appeal, and then, thirdly, there will be another intimation in respect of the decision on the appeal. I know that the lawyers want to be kept working and far be it from me to prevent that measure of triplication. I certainly would not dream of imperilling their employment by pressing this amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

3.59 p.m.

The Earl of Mansfield moved Amendment No. 51BA: Page 19, line 43, leave out (" including ") and insert (" involving ").

The noble Earl said: This amendment substitutes the word " involving " for the word " including " in Clause 29(2)(b) and brings the wording into line with similar provisions for metal dealers. The difference between " involving " and " including " is very slight. The apparent semantic distiction is only to ensure that the wording is identical in the two clauses which are similar in content. I beg to move.

On Question, amendment agreed to.

The Earl of Mansfield moved Amendment No. 51BB: Page 20, line 2, leave out (" or process ").

The noble Earl said: This is another drafting amendment. We now think that the words to be left out are unnecessary and confusing. I beg to move.

On Question, amendment agreed to.

The Earl of Mansfield moved Amendment No. 51BC: Page 20, line 4, leave out (" its ") and insert (" their ").

The noble Earl said: This is a straightforward drafting amendment to correct a point which is grammatically incorrect. The word " its " should be replaced by the word " their ". I beg to move.

On Question, amendment agreed to.

Clause 29, as amended, agreed to.

Clause 30 [Metal dealers' licences]:

Lord Ross of Marnock moved Amendment No. 51C: Page 20, line 24, leave out (" anywhere in Scotland ") and insert (" in the area of the licensing authority ").

The noble Lord said: This amendment relates, I suggest, to itinerant metal dealers who are very gently leaned upon so far as licensing conditions, records and the rest are concerned. I do not think it is right that a licence granted to an itinerant metal dealer should have effect so as to permit that dealer to carry on business anywhere in Scotland. If he wants to go outside the area of the authority which has licensed him I suggest that he should have a licence from the other areas to which he goes, otherwise it is going to be very difficult indeed to keep track of these dealers and exercise control over them. There is no question of a local authority passing a resolution concerning metal dealers.

All metal dealers, metal brokers, have got to be licensed. It is so important. There is no flexibility about it. Why should a licence given to somebody in Glasgow enable that same itinerant metal dealer to do business in Argyll, Aberdeen, even in the Borders? The City of Glasgow has sent a note to me saying that they object to this. They did so after I had put down my amendment. It appears that having been licensed in some other part of Scotland people have been going into Glasgow and doing business within that area. If these dealers are wandering around Scotland and want to do business in the places to which they wander they should be licensed to do business there. Hence my amendment: leave out " anywhere in Scotland " and insert " in the area of the licensing authority ". I beg to move.

The Earl of Mansfield

The noble Lord seeks in effect to apply the mandatory licensing requirements—I agree with him that in the area of metal dealers they are mandatory to itinerant metal dealers in a way which would mean, as he has said, that they would have to apply for a separate licence every time they went into a separate licensing authority area. I correct myself to this extent: that they would have to apply for a separate licence for every district or licensing area in which they wanted to ply their trade.

Is this really necessary? I ask myself. If we look at Clause 39, the definitions clause, we see that an itinerant metal dealer is defined as someone who collects waste materials and old, broken, worn out or defaced articles, by means of house to house collections and who disposes of them without causing them to be kept in a metal store or other premises. So we are not talking about major metal dealers. We are talking about somebody whose stock-in-trade consists of what he can carry in his van or on his horse and cart. He is very different, and very different considerations, I suggest, ought to be applied to him from the metal dealer who has substantial premises and a large turnover. So do we want to impose on the small man the burden of seeking a licence as he crosses licensing authority boundaries, always assuming that the poor man knows a licensing authority boundary as he crosses it?

Itinerant dealers will probably be what are now known as travelling people. When I was a boy they were called tinkers—not, I may say, an opprobrious, term. But in many instances they do not have a fixed address and they have very few local contacts which will enable them to engage lawyers, if necessary, or ask for assistance with licence applications when they come to a different area.

Bearing in mind that the whole of the legislation in this part of the Bill is aimed at striking a balance between the needs of crime prevention, and the seriousness of the crime which is likely to be committed, and the interests of the individual, I do not think it would be right that if an itinerant metal dealer has satisfied one authority he should not be free to ply his trade anywhere in Scotland but would have to go to every single licensing authority where he wanted to do business. I know that one large local authority—and it is Glasgow—suggests that the present provisions are unenforceable. I do not accept it. The police have welcomed the provisions and clearly are satisfied that they can enforce the licensing requirements.

If the noble Lord can provide evidence or even an argument that the provisions as they stand in the Bill are unworkable or in some way unsatisfactory then I would be prepared to look at the matter again, but at the moment I am bound to say that if the Bill were amended in the way that is implied by the noble Lord's amendment it would make a bureaucratic nightmare, be extremely unjust and probably, indeed, unworkable so far as the small, itinerant metal dealers are concerned. I hope that, in the circumstances, the noble Lord may agree that this is not warranted.

Lord Ross of Marnock

I still think that one has to listen to Glasgow when it gives its opinion. If it says that it is inappropriate and would be difficult to enforce, this is of considerable value because Glasgow is speaking from long experience. The Minister of State nearly had us in tears about the fate of the itinerant metal dealers and the tinkers. I hope that the tinkers will all read Clause 33 and find out what they are able to do and what they have got to do. They have got to keep invoices in respect of everything that they purchase for two years. These itinerant metal dealers whom the noble Earl said used to be described as tinkers have also got to keep a receipt showing the weight and description of the metal, the name and address of the buyer and the price paid for the metal for two years. I doubt whether they will do all that, which is one of the reasons why this is not enforceable. We should look at the matter from the point of view of tinkers and find some other way of dealing with it. If they can do all that, they can certainly apply for a licence wherever they are peddling their wares.

The Earl of Mansfield

I do not know whether the noble Lord, Lord Ross of Marnock, really wishes me to respond again. He cannot have it both ways.

Lord Ross of Marnock

Yes, I can.

The Earl of Mansfield

He says that the tinkers cannot keep records, but undoubtedly they will want to do so because they will want to pay their income tax! If the noble Lord says they cannot keep records then they certainly cannot apply in every single licensing district for a licence to ply their trade, particularly when, as I am trying to illustrate, it is not necessary for them to do so.

The Marquess of Headfort

Is this not the United Kingdom?

The Earl of Mansfield

If by a slip of the tongue I said " United Kingdom " when I meant to say " Scotland ", I apologise. This Bill is, of course, one which applies only to Scotland.

On Question, amendment negatived.

On Question, Whether Clause 30 shall stand part of the Bill?

4.11 p.m.

The Earl of Selkirk

I let the noble Earl know that I should like to say a word or two about Clauses 30 to 39, which deal with metal dealers and which, as the noble Earl said, are not optional but compulsory. I know nothing about this industry whatsoever, but I find it difficult to understand the effect of this clause and what it is trying to achieve. The noble Earl has quite rightly said that it is a mixture of crime prevention and individual freedom; but it is also of some substantial importance to the steel industry. I do not know how far what one might call " major dealers " are included here; that is far from clear. But I want to make two points. One is that there is an enormous amount o detail, and I would like to draw attention to some of the quite remarkable pieces of detail which exist in the Bill. First of all, one has to keep a record and that record has to be serially numbered. It has got to be kept in one book, and if it is not one may be fined £200. I would have thought it quite possible that metal dealers would want to keep separate books for ferrous metals, non-ferrous metals and for what they call sintered metallic carbides. I do not know, but it may be that dealers may want to do that.

Also, one cannot sell metals to a person under 16 years of age. Why should one not sell metals to a person under 16? Metal is not like a drug, is it? I can see many people under the age of 16 wanting to buy scrap metal, but that apparently is an offence. If someone delivers metal to one's store, and one does not take the number of that person's car, that is another offence. It seems to me quite an easy thing not to take someone's number plate. Under Clause 31(6), if one does not enter the particulars immediately, again one commits an offence. What does " immediately " mean? Is it the same day, the next day, or within a week?

Then we come to this rather curious clause at the end, Clause 39. It is really quite remarkable what a metal dealer is. Clause 39 says that a metal dealer is someone who carries on a business which consists of buying or selling material, made wholly or partly of metal ". Does that include furniture with a hinge, or does it include nails, or something with a metal edge? What does it include? It appears to include almost anything that contains a certain amount of metal.

If I may go back to the general principle, what firms are these clauses supposed to cover? The Bill speaks of metal dealers and then an exception is made for " itinerant metal dealers ". It is quite obvious that Clause 31 deals with metal dealers. Then one comes to Clause 33 dealing with itinerant metal dealers. Then there is a series of clauses, Clause 34 to 38. Do they cover itinerant metal dealers or does the term " metal dealer " not cover itinerant metal dealers? Then one comes to another class of people, again in Clause 39, who I suppose are the bigger people. They are people who, apparently, are not licensed at all because Clause 39(2) describes the people who deal in metal and then goes on to make an exception for those who carry on business in the course of which metal is not bought except as materials for the manufacture of other articles and not sold except as a byproduct. Apparently those people do not need a licence at all. There are three different kinds of metal dealers. I may be wrong and there may be a much simpler explanation, but I really do not understand what is covered.

I wish to make two further points. One is that I think that this immense number of details should be in subordinate legislation. We are laying down an Act of Parliament which is not optional, and it will be years before we can amend it if we want to do so. It would be much simpler to put all these details into subordinate legislation which could be changed very easily. Secondly, can we not make quite clear what kind of metal dealers are dealt with here? In particular, do " metal dealers include itinerant metal dealers, or arc they specifically excluded?

This is an important matter. It is important from an environmental point of view. We want metal cleared up because there is masses of metal lying about the country. We want to give metal dealers every possible facility for collecting it. Secondly, the use of scrap metal plays a very big part in the steel industry. I do not know how this will be affected by this Bill, but it seems to me that the drafting is pretty confusing. I ask the noble Earl to look at Clauses 30 to 39 fairly carefully. I shall later be moving an amendment on the question of precious metals. Do we really want to include precious metals in this? Are we going to bring jewellers into this business? If we are going to bring in jewellers, what about precious stones? Would not the same obligation apply there? They are things which are very easily stolen, but do we want to bring those in too? I wonder if the noble Earl could make this clause a little clearer so that ordinary people could at least understand what it is all about?

Lord Mancroft

If it is any comfort to the noble Earl, Lord Selkirk, may I remind him that, despite the most desperate efforts made from these Benches some years ago, it is still in English law a criminal offence to sell a second-hand anchor to a young person under the age of 16 between the hours of 9 o'clock at night and 7 o'clock in the morning.

Lord Stodart of Leaston

I wonder if my noble friend can clarify something for me and say whether or not this applies to what one might call the scrap merchant who pays a visit to farms, probably every summer. The definition describes him as going from house to house, and no doubt that covers going from farm building to farm building. I am bound to say that I view with a certain amount of gloom the fact that, according to Clause 33, I presumably have to issue this scrap merchant with an invoice for the scrap I provide him with; and whether or not I shall be liable for the VAT I do not know. It does seem to me to be carrying one's bookwork to rather gloomy extremes. I need hardly say that it is the practice for the scrap dealer to pay in cash. I have never known cheques to be used—I doubt whether he would accept a cheque from me if I offered him one. I rather feel that this is making a mountain out of what is, certainly agriculturally, a comparative molehill.

The Earl of Mansfield

If I point the finger at my noble friend it is because he is having not only a clause stand part debate but also a nine-clause stand part debate, when we have not yet considered most of the clauses. If I may say so, the time to have this debate is when we finish with Clause 39, which is the definitions clause, on which a lot of the misunderstandings, if I may so call them, and uncertainties are in fact put right. Nevertheless, I accept my noble friend's castigation, although it will mean that we shall have to go backwards and forwards through the pages of these clauses and consider them as we go through as well as now.

The first thing I want to deal with is the question of legislation at all. This part of the Bill and its provisions have been included following widespread consultation with the trade and the police and the local authorities, all of whom, with the possible exception of Glasgow and the itinerant metal dealers, have welcomed its provisions. I will be frank enough to say that there were plans for a separate scrap metal dealers Bill prior to the drafting of this Bill, but opportunities for legislation being what they are it was considered that it would be sensible to incorporate these very desirable new provisions and the extension of the provisions under the Burgh Police Act into the Bill as part of the Civic Government Bill. As I have said, the provisions have been welcomed. The working party on civic government recommended that scrap metal dealers should be brought within the scope of the Bill if a separate Bill was not proceeded with.

Under the Burgh Police (Scotland) Act 1892, metal dealers in the original Burghs are controlled, and the present Bill's provisions do no more than extend these controls into the modern law. Unlike other sections of the Bill dealing with licensing matters, these provisions are, of course, mandatory, because the Government have accepted the view of the police, and a number of other authorities too, that scrap metal dealers should be subject to a mandatory licensing system for crime prevention reasons.

I know that to the uninitiated the requirements attached to the licensed scrap metal dealers do seem to be bureaucratic and rather onerous, but I can tell your Lordships that details relating to record keeping and the retention of metal, the duties of itinerant dealers, the offences which have been laid down, and so on, are a complete package which will assist the trade and the police and the local authorities, who in fact understand these provisions very well and have known them for a very long time. It is they who will have to operate the scrap metal provisions. Unless one has in part of one's life dealt with the criminal law—and in another guise and in another country I have had such experience—one may not know it, but I can tell your Lordships that the opportunities for crime when one comes to scrap metal are legion, and I am not only concerned with the rather more exotic branches of crime, such as, for instance, taking lead roofs off churches.

The next matter which I think I had better deal with is the definition clause, because that really lays down a number of matters which I hope will help to clear the thing up for my noble friend Lord Selkirk. I go to Clause 39(2), where it says: For the purposes of sections 30 to 38 of this Act a person carries on business as a metal dealer if he carries on a business which consists wholly or partly of buying and selling for scrap ". It is the words " for scrap " which I would underline, metaphorically speaking, because none of this applies to businesses which are not for scrap. So that, when my noble friend asks whether the provision of a metal hinge on an antique piece of furniture thereby makes the dealer a scrap metal merchant, the answer is, no, because he is not dealing in metal for scrap.

Then I turn to the itinerant metal dealers, who, as we have heard, in effect in modern Scottish conditions are really travelling people going from place to place, without premises or without effective premises. The definition in Clause 39(1) applies to them. In those circumstances, I hope that, if noble Lords read Clause 39 and then go backwards, so to speak, they will see how the various provisions of these clauses hang together.

I am very tempted to reply to my noble friend and his precious metals because he raised it, but the matter is the subject of an amendment of its own and therefore I will resist the temptation, although I should take it up if I thought that he might not move the amendment.

It is, of course, complicated, because we are legislating for a fairly complicated activity and laying down some precise rules which will have to be observed. My noble friend asks whether this could not be made the subject of subordinate legislation. I am advised that it is not so suitable, that the Burgh Police Act survived for tens of years perfectly satisfactorily, and therefore it would not be appropriate to have some kind of enabling clause and for the Secretary of State to bring out regulations in pursuance of it. I hope that this will go some way to reassure noble Lords on both sides of the Committee about what it is that these Clauses 30 to 39 seek to achieve.

Lord Mackie of Benshie

I did not speak on this clause. I thought it perfectly reasonable to issue licences, and I was staying off the following clauses. Would the noble Earl the Minister tell me, is an itinerant metal dealer to have exactly the same licence as the pukka metal dealer? I know metal dealers who have machines that cost £150,000 in their yards and run very big businesses. Is the itinerant chap, the tinker, going round the farms, under exactly the same conditions as these fellows who are in big business?

The Earl of Mansfield

The licence will be the same, but of course the duties consequential upon it will be entirely different, because the man in business in a big way will have premises, and he will, therefore, have to observe the conditions of the licence, and indeed the law, in relation to his business premises.

There is another matter which perhaps I should clear up. I think a number of noble Lords questioned why persons under 16 could not in effect deal with metal. That was one of the recommendations of the working party. It is consistent with other legislation of a similar nature; for instance, the granting of credit. I do not suppose that many children, unless they are the children of itinerant metal dealers, would really feel drawn to the trade. It was considered that few children can have come honestly by scrap metal in any quantity, and that is why it was put in in the way it was.

Lord Ross of Marnock

We have had rather a disorderly debate so far as I can see, supposedly dealing with the Question, That Clause 30 stand part of the Bill. That being so, provided I can come back to one or two points, I will be very happy to deal with Clause 30 right away and come back to the others.

Clause 30 agreed to.

Clause 31 agreed to.

Clause 32 [Retention of metal]:

On Question, Whether Clause 32 shall stand part of the Bill.

Lord Ross of Marnock

The point raised by the noble Lord, Lord Mackie of Benshie, is relevant here because many people who are metal dealers are in this business in a big way and may well be supplying, and urgently supplying, other metal-using industries. Indeed, those are the industries that I spoke of earlier to the Minister of State and as regards which I asked him whether he would look again at the 72-hour limit that is laid down, because it says that they shall not: dispose of or process any metal acquired … in the course of business until the expiry of a period of 72 hours ". This is really a restriction upon business which may be harmful to particular businesses which are working probably all-out to supply another industry that is working hard on export orders. I only want the Minister to have a look at this and to make some inquiries as regards the point at which it becomes difficult, from a business point of view, to subject them to the business of disposing of or even going ahead and processing metal before it can be disposed of in the general course. That is the only matter I want to raise.

The Earl of Mansfield

I shall certainly have a look at it. I would just remind the noble Lord, Lord Ross, that the consultation document in relation to metal dealings suggested a 14-day retention period. But we considered that that was really far too long. However, I shall certainly consider whether 72 hours is the right period.

Clause 32 agreed to.

Clause 33 [Itinerant metal dealers]:

On Question, Whether Clause 33 shall stand part of the Bill?

Lord Ross of Marnock

I wonder whether the noble Earl could make clear that this is the only clause of the group of clauses into which we strayed that affects itinerant metal dealers? The concern is only as regards the keeping of receipts and invoices for two years in relation to the people from whom they purchase and to whom they sell. Later on the mention is of "metal dealers", so the question of buying and selling to people under the age of 16 and the suspicion about goods being stolen need not worry the travelling people, because it applies not to itinerant metal dealers, but to metal dealers. I want to emphasise that there is a clear separation—this was the point that was worrying the noble Lord, Lord Mackie of Benshie. There are many people who would have thought that the people under the age of 16 who are likely to sell things are likely to sell them to itinerant metal dealers, rather than to metal dealers. However, that is the situation. We want to get it clear that these later provisions apply not to itinerant metal dealers but only to metal dealers, and the statutory obligation of itinerant metal dealers is limited to Section 33.

Lord Stodart of Leaston

I should like to apologise for having been carried away by the fluency of the noble Earl, Lord Selkirk, and making a point slightly in advance of where we were in the Bill. However, looking at Clause 33(3), it seems to me that we are being quite unrealistic in suggesting that an invoice should be made out by a farmer to a scrap merchant for various items of metal that are picked up over what used to be known as the " stack yard ", showing the weight and the description of the metal. Where is one to weigh it, if there is no weighing machine on the farm?—and there are very few farms which do have wieghing machines, certainly in the upland areas. I am sorry to be nit-picking about this, but I am bound to say to my noble friend that I find this particular subsection totally unrealistic.

Lord Mackie of Benshie

I should like to support the noble Lord, Lord Stodart of Leaston. I cannot see any of the gentlemen who I know who buy metal from the farms being able to carry out this procedure and I certainly cannot see them being willing to carry it out. I must say that, as regards the keeping of receipts for two years, it would be an interesting exercise to see what they would do if they ran short of paper for any purpose whatever.

The Earl of Mansfield

There are a number of fundamental mistakes which are being made by noble Lords in relation to these clauses. I shall deal first with the noble Lord, Lord Ross. Clauses 34 to 38 cover metal dealers. Metal dealers are defined in Clause 39. Therefore, those five clauses deal with both static and itinerant metal dealers. Clause 33 applies to itinerant metal dealers as defined in Clause 39 and, in effect, relaxes some of the rules or some of the book-keeping requirements which are applied to what I might call static metal dealers. That I hope disposes of that problem.

I now come to my noble friend Lord Stodart. His point is not nit-picking at all. But, of course, it is not the farmer who is the metal dealer: it is the travelling person. He comes along and offers to buy some scrap metal from the farmer. It is up to the itinerant metal dealer to provide a weighing machine and to weigh the metal. It is up to him to give the farmer a receipt in respect of the metal. What the farmer does with it is entirely up to him. However, so far as Clause 33 is concerned, the invoice, or rather a copy of it, shall be retained by him for the period which is specified—that is to say for two years. Whether, as the noble Lord, Lord Mackie, wondered, he will find it very agreeable to accumulate this weight of paper, I do not know, but—for reasons which we have already discussed in the Committee as regards which, with my new-found sense of humour, which the noble Lord, Lord Wilson of Langside, commented on earlier, I raised some sort of mirth—that is what is enjoined on the itinerant metal dealer and therefore, it is he who is caught by subsection (3) and not the farmer.

Lord Mackie of Benshie

I want to be quite serious about this. The type of person who goes round and does this performs a valuable function and he does lift metal which is much needed throughout the country. But if we impose this type of book-keeping requirement on that sort of person, he will not do it. I think that it is very valuable that there should be a record of licensed scrap dealers. But to ask them to keep records for two years seems to me to open them to prosecution and a fine of £200 for something that such a person is constitutionally incapable of doing. They have carried on this trade for a long time and they are useful members of society. To open them to a fine of £200 for something that they really could not do even if they tried is in my view quite wrong.

Lord Stodart of Leaston

I do not want to detain the Committee, but surely it must be the case that if an itinerant metal dealer is to retain an invoice it is the farmer who must give him the invoice, because it is the farmer who is making the sale. Therefore, all that I am saying is that I do not think that it is realistic that an invoice could be made out for things which it would be remarkably difficult to describe. Junk is just loaded on to the lorry.

Lord Wilson of Langside

I understood the Minister to say—and this is my own recollection—that these provisions, or similar provisions, have been in effect for many years under the Burgh Police (Scotland) Acts. This is not to introduce fresh law, but simply to codify existing law. Of course I see the force of what the noble Lord, Lord Mackie of Benshie, said, but I imagine that although these laws existed, the law enforcement authorities and the police have exercised a certain sensible discretion before taking proceedings. But as I understand it—and the Minister will correct me if I am wrong—these penalties have always existed in this field.

The Earl of Mansfield

Yes. Under the Burgh Police (Scotland) Act 1892, itinerant metal dealers are treated as brokers and are, therefore, subject to the legislation applying to brokers. I do not wish to mislead the Committee in any way, and the Committee would not expect me to; I do not know that the receipts presently have to be kept by itinerant metal dealers for any particular time. I must say that.

But having listened to this debate and the very real fears which have been expressed—particularly as to this question of the two-year period—I think that I should take the matter away to see whether, in all the circumstances, it is a proper period to lay down as regards itinerant metal dealers. If it is not, at the next stage of the passage of the Bill through your Lordships' House I would propose an appropriate amendment.

The Earl of Selkirk

I should like to ask one question. Is it an obligation on behalf of the farmer (if I may use the expression) to give a receipt? Is he liable for a punishment of £200 if he refuses to give a receipt? I think that we should be clear on that, and I do not think that it is quite clear from the Bill at present.

The Earl of Mansfield

Clause 33 applies only to itinerant metal dealers. Therefore, there is no question of any farmer committing any offence under that clause. In effect, the itinerant metal dealer has to give a receipt or an invoice—call it what you will; it depends who is giving it and who is taking it—in respect of a sale of scrap metal. At the moment he has to keep that for two years.

Lord Ross of Marnock

I think that we have stumbled into some complexity in relation to the itinerant metal dealer. I must say that I am even more perplexed after the explanation by the noble Earl. I should have thought that if we meant a metal dealer, we meant a metal dealer apart from the itinerant metal dealer, and where we meant an itinerant metal dealer, we specifically said so, as indeed we do in Clauses 31 and 33. But the Minister of State informs me now that thereafter, in these other clauses, where we say " metal dealer " it will include " itinerant metal dealer ". We should bear in mind if that is the case and bear in mind that Clause 39 says that an itinerant metal dealer goes round farms, houses and so on and disposes: of such materials or articles without causing them to be kept in a metal store or other premises ". Clause 32, which I presume also applies to him as it does not leave him out, says that he has to keep them for 72 hours. Where?

The Earl of Mansfield

Yes, it does.

Clause 33 agreed to.

Clauses 34 and 35 agreed to.

Clause 36 [Stolen metal]:

4.45 p.m.

The Earl of Selkirk moved Amendment No. 52: Page 23, line 36, leave out (" he ") and insert (" the metal dealer ").

The noble Earl said: This amendment deals with Clause 36(2). Frankly, I am rather worried about the syntax of this clause. In order to make clear what it says I think that it needs a little redrafting. If someone has a letter posted to him and it states a description of some piece of metal, then the person who has the metal cannot say that he has not read the letter. There are a good many gaps in that argument.

First, who can send him a letter? Is it intended to be a letter from the police? Is it intended to be from a member of the public? I do not know, but apparently this is the case if he is sent the letter. Secondly, he has only to post the letter. We are not unaware that letters are not always delivered when they are posted. There is no guarantee that he has even seen the letter. There is also no guarantee that having described the metal, they also say they think it is stolen. Do they want the letter to say that it is describing metal which is stated to be stolen? It does not say that; it only says that it is believed to be stolen, and that need not necessarily, as far as I can see, be included in the letter.

In this amendment I am asking only that the words " the metal dealer " be included because I do not quite know who the word " he " refers to, unless you specify the subject of the sentence. Would the noble Earl look at this sentence a little more closely? I do not quite know what the police want here, but I think that they want a clear statement that a man cannot say, " I never saw this description ". In that case, I suggest that it should be a letter from the police; it should be delivered; it should describe the metal and say that it is believed to be stolen. I believe that those points could be brought out more clearly in this subsection. I beg to move.

The Earl of Mansfield

I think that the word " he " is perfectly plain. There may be parts of this sub-section which are not, but I think that the word " he " is. If my noble friend's amendment were accepted, we would have the word " dealer " appearing twice and, indeed, side by side in the same line.

However, I am much more interested, if I may say so, in his argument which did not go to his amendment; in other words, to the sense of the subsection. If I may, I shall have another look at it.

The Earl of Selkirk

I thank my noble friend. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 36 agreed to.

Clauses 37 and 38 agreed to.

Clause 39 [Interpretation of sections 30 to 38]:

4.48 p.m.

The Earl of Selkirk moved Amendment No. 53: Page 24, line 38, leave out (" precious metal and ").

The noble Earl said: With the leave of the Committee, I should like to go a little wider than simply the amendment which I have tabled. First, I make no apology to the Committee for having raised the points on these nine clauses before we reached them. To my mind it has been a trifle easier to understand what they are about. Now we can make one or two things clearer. One point which the noble Earl has brought out very clearly, which I had not grasped, and which the noble Lord, Lord Ross, had not grasped, was that in the words " metal dealer " you include the word " itinerant " metal dealer. That was not clear and, with respect, it should he made clear. I think I am right in saying that Clauses 34 to 39 should state that metal dealers here include itinerant metal dealers. I think that that is a perfectly straightforward proposition to make.

Before referring to the amendment, I should like to go to Clause 39 (2). The noble Lord said that the fundamental distinction here is the word " scrap ". What about railway lines? What about the big scrap merchants who form a very large basis of the subject dealt with by the steel industry? Are they included in this? Must they have licences, or not? I think that we should be clear about this. It is quite clear that they cannot possibly have licences which extend only to a district. It should be made quite clear that this is a different type of man altogether. It is a very important part of our industry in this country.

To return to the words " precious metal ", I do not quite understand what this means. I take it you do not intend to include—although you may—jewellers. They deal with precious metal. They must be itinerant in some sense in their work. They collect them and they work on them. If you include them, do you include precious stones, which are in very much the same category?

What is the purpose of bringing in "precious metal"? In the ordinary course of events a tinker, if we use the expression, does not deal with precious metals except in the greatest unlikely chance. Is there any necessity to bring these in? If there is not, then I suggest that we might just as well leave them out. There may be some arguments I am unfamiliar with and, if so perhaps the noble Earl will tell me about them. I beg to move.

The Earl of Mansfield

Of course the definition of " metal " applies to metal dealers, and it does not matter a hoot whether they are static metal dealers or itinerant metal dealers, although it is probable that so far as precious metal is concerned it is more likely that that will be dealt with—or " dealt in " is a better phrase—by static metal dealers. The words of the definition are in fact meant to be all-embracing. In other words, " metal " includes, one could have said in a sloppy way, all metal, but what the draftsman has chosen to do is to define " metal " as any base metal or precious metal or any alloy of metal. Then he goes on to say " whether old or new ", and so on. But that is why the words " precious metal " are included in the definition.

Then one goes on to ask: should " precious metal " be included in the definition? In other words, should " metal " not be metal without " precious metal ". Bearing in mind that these clauses apply only to persons buying and selling for scrap, for the purposes of crime prevention it was considered that it was proper that precious metals should be included within the definition, because apparently following thefts, and so on, there is, unfortunately, a reasonably flourishing business in melting down precious metals for scrap. That is the reason why the words " precious metal " appear.

The noble Earl also asked me about railway lines. I think that that also is taken care of in subsection (2). May I draw my noble friend's attention to the concluding words in the subsection: … other than a business in the course of which metal is not bought except as materials for the manufacture of other articles … ". I am informed in fact that that is not old railway lines. They are no different from ordinary scrap, and the difference is merely in size. But the only metals which are excluded from subsection (2) are those at the end of the subsection.

The Earl of Selkirk

I shall not press this amendment. I must say that I thought that all scrap was in fact used for the manufacture of other articles, otherwise I can see no point at all in collecting scrap. Most of it goes to some of our big steel works in one form or another, and they are apparently completely excluded. I imagine that many tinkers put their steel in such scrap.

I shall not press this matter any further, except to say that this is a confusing clause, and if the police or other people can work it they must he extremely clever and I give them my heartiest congratulations. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.55 p.m.

On Question, Whether Clause 39 shall stand part of the Bill?

Lord Hawke

I do not know whether it is relevant to take an English analogy for Scotland. Does an itinerant metal dealer in Scotland comprise the gipsy who in England, carries on a flourishing business in breaking up motor cars? He certainly does not go around from house to house collecting his motor cars. They sometimes descend into his lap by some mysterious means. He guts them of all saleable parts and then leaves the rest as an eyesore to be removed eventually by the council, if one is lucky. Is there any clause here which covers that gipsy, or do gipsies not exist in Scotland?

Lord Ross of Marnock

While the noble Earl is thinking about that—he will probably say that he has already answered it; I do not know whether the noble Lord was here earlier—the point I should like to make is that I am getting rather tired of itinerant metal dealers being only tinkers or gipsies, or travelling people. It is relevant to the amendment which was eventually withdrawn by the noble Earl, Lord Selkirk, that the kind of metal dealer that I come across and who knocks at my door occasionally is a person who wants to buy anything with gold or silver in it. They go around various places and offer prices which are generally not the prices that a person would get selling his grandfather's gold watch or chain, or anything else, to a bona fide static precious metal dealer. We should make clear that the itinerant metal dealer is not just purely a scrap metal dealer in that sense, but is somebody who is out to get hold of pretty good bargains from unsuspecting people.

I am glad that these people are going to be licensed in future, or have to be licensed. I hope that housewives and people who are visited by these folks will ask to see their licence, and see whether or not they have it. Many of them do not come from Scotland at all. They make a foray probably from this part of the world because there is money to be made, and where there is money to be made you will find the English doing down the Scots—if you can imagine that as possible. I just want to have substantiated by the Minister that it does not apply only to itinerant travelling people but also to anybody who goes from house to house seeking to buy articles of value from, it may well be, unsuspecting people.

The Earl of Mansfield

I think we have discussed this definition of an itinerant dealer fairly extensively now, and I suppose it might have been inappropriate to include the phrase " travelling people ". But it is plain from those of us who know different localities that lots of travelling people do in fact act as itinerant metal dealers, though of course not all gipsies are itinerant metal dealers, and, as the noble Lord, Lord Ross, has pointed out not all itinerant metal dealers are gipsies or travelling folk.

I think that the definition is reasonably clear. I am bound to say from this debate that I for one should like to go over the definitions again with the officials and put them to the draftsmen. If, as a result of this debate, anything really does appear unclear so far as these definitions are concerned, then we shall have to consider whether any amendment is needed or desirable at a future stage.

Lord Wilson of Langside

When the noble Earl is doing that, would he bear in mind that on the face of it there is room for the view that Lord Ross of Marnock's itinerant collector of old gold is not at present covered by the definition of an itinerant metal dealer in Clause 39? I do not want to pursue that, because I think we are all getting tired of the itinerant metal dealer, but I think I am right in saying that.

The Earl of Mansfield

If the purpose of obtaining the old gold was to sell it eventually for scrap, then he would be an itinerant metal dealer, because he would come under the definition of Clause 39(2), but otherwise not.

Lord Wilson of Langside

I should not have thought the reference to the itinerant metal dealer going from house to house collecting certain articles included the collection of old gold, but I do not want to pursue the subject and merely suggest that when the noble Earl is considering the matter he has regard to that as a point of view.

Clause 39 agreed to.

Clause 40 [Boat hire licences]:

5.1 p.m.

Lord Ross of Marnock moved Amendment No. 53A: Page 26, leave out line 15.

The noble Lord said: By this amendment I am simply inquiring why a boat hire licence is not required for any vessel in an inland waterway or harbour owned or managed by the British Waterways Board.

Lord Lyell

It is not the Government's intention to impose the licensing requirement we are discussing in a double form and for people to be regulated twice. The British Waterways Board already has, and exercises, powers approved by Parliament to regulate vessels operating on its inland waterways or in harbours owned or managed by it. In view of that, we see no need for local authorities also to be exercising the control of regulations in those waters. Such exemption from double control has already been achieved for England and Wales in Section 185(2)(a) of the Local Government, Planning and Land Act 1980. I hope that brief explanation will convince the noble Lord that the position as set out in the Bill meets the case of licensing.

Lord Ross of Marnock

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 40 agreed to.

Clause 41 [Street traders' licences]:

Lord Ross of Marnock moved Amendment No. 53B: Page 27, line 38, after (" trading ") insert (" within the area of the licensing authority ").

The noble Lord said: We are certainly getting variety; we move from metal dealers to street traders and the amendment aims at avoiding itinerant street traders. When a Member of Parliament, I received complaints from shopkeepers about street traders appearing on a Saturday afternoon, often near a similar business, selling in the streets. Often they did not come from the locality but from a nearby city. I want to make certain that the street trader will be licensed only for street trading in the area of the authority issuing the licence.

I should like to go further and limit such traders to a particular street or streets by the licensing authority. There is a considerable argument as to the desirability of having people moving from one place to another as it suits them, damaging the businesses of others who are paying rates. The street trader may not pay any rates, although he may be selling flowers or fruit only a few yards from a florist or fruiterer who is burdened with the business of paying rates for the police and keeping order and so on. If we arc going to give this licence, we should ensure that it is suitably limited.

Lord Lyell

The noble Lord, Lord Ross, has made a plausible attempt to explain why in his view certain types of trading should be restricted to certain geographical areas, but I must tell him that his amendment would not achieve what he seeks. Clause 41 is subject to Clause 9, which is the general empowering provision empowering licensing authorities to resolve that certain, or indeed any, activities—including street trading—shall be licensed in all or part of the area covered by the authority. If the noble Lord's intention is simply to clarify the geographical scope of a street trader's licence, his amendment is unnecessary. The local authority will be able to impose conditions about the area within which the licence is valid, as he will find clearly set out in Clause 9(2), which covers the general empowering of licensing authorities.

Lord Ross of Marnock

Whatever is clear in the Bill, it is not Clause 9. However, I am reasonably satisfied with the Minister's reply. I hope that local authorities, with the flexibility and powers given to them by Clause 9, will be able so to licence street traders that they are limited, as achieved by the English Bill, which has been printed. I wondered whether, under the Scottish Bill, such traders could be limited to a particular stance. After all, we talk about " a public place " at one point in the clause and later refer to " the public place ". The Minister's reply is reassuring and I gather the intention is that the local authority shall so delimit, within the licence, the place and area within which they will trade that it will be a restriction on the kind of damage these traders do to other shopkeepers. In view of that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 41 shall stand part of the Bill?

Lord Hawke

Will it be necessary to have a street trading licence for anybody who wishes to sell anything on a public highway? In other words, when the farmer's wife puts out some eggs on a little platform outside the farm gate, must she have a street trader's licence to permit her to do that?

Lord Lyell

I am afraid I cannot give my noble friend a definite answer. However, I think he will find that subsection 4(a) covers the point he raised about, for example, the farmer's wife selling things outside the farm gate. I think that such activities would be covered by the Food and Drugs (Scotland) Act 1956. I think that there are certain regulations regarding that type of farm produce activity. I do not know whether flowers, fruit and other items of a perishable nature are covered by the Food and Drugs (Scotland) Act 1956. But certainly I think that the example raised by my noble friend would be covered in that way.

The answer that I have just received is, yes, the farmer's wife would be covered; she would be caught by the definition of a public place which I understand is found in Clause 128 on page 78 of the Bill. The Committee will find in the intepretation clause, at line 32, the definition of public place I understand that if the authority so decided, the farmer's wife would require a licence to carry on the activity described by my noble friend since the public highway would come within the category of a public place under the intepretation clause, Clause 128. So the answer to my noble friend is, " yes ".

Lord Hawke

I hope that my noble friend will have a good read of that on the quiet, because I do not read it the same way as he does. It would be ridiculous if the Bill was to stop this kind of petty trading that goes on the whole time, would it not?

Lord Lyell

My noble friend asked me to have a good read of " that ". May I ask him to define it exactly—page 78 or page 28?

Lord Hawke

Both, but particularly page 78. I read the public highway as coming within the category of the places where one is not allowed to sell without a licence, but I am not a lawyer.

Lord Wilson of Langside

Surely if the Minister's intepretation of the provisions is correct, the Government will take steps to remedy the position. Surely it was never intended that the activity by the farmer's wife outlined by the noble Lord opposite should be covered by the provisions. That was not the purpose at all. I very much doubt that the Minister's interpretation is correct and that the farmer's wife carrying out this activity in the countryside would be covered by the provisions. But, if that is the Government's view, will they not consider putting the matter right?

Lord Stodart of Leaston

I think there is just one other point. If a " public place " means what is stated— any place (whether a thoroughfare or not) to which the public have unrestricted access it certainly brings to mind a farm road leading off a public road to a farm building where every summer considerable business is done in the sale of strawberries on premises which are private, but to which undoubtedly the public have unrestricted access. I do not think that anyone has ever imagined that a street trader's licence should be needed for that.

Clause 41 agreed to.

Clause 42 [Market operators' licences]:

5.14 p.m.

Lord Ross of Marnock moved Amendment No. 53BA: Page 28, line 38, leave out paragraphs (b) and (c).

The noble Lord said: Now we proceed to private markets, whether under cover or in the open air. The suggestion here is that a licence is required for them, but on the other hand a licence will not be required for private markets held only for the sale of livestock or grain or wholesale markets held for the sale of fruit, vegetables, fish or meat at which members of the public are not normally present ". The advice that I have been given by the council which probably has pioneered the business of publicly-owned markets—Glasgow—is that there ought to be licensing for all private markets. I should have thought that in regard to the sale of livestock, fruit and vegetables the local authority should have the power to license markets and so ensure that conditions are as they should be for such markets. The council considers that exceptions to licensing are undesirable and the markets should be placed under the control of the licensing authority. I believe that that is reasonable and that it was once the opinion of the Scottish office, as well. I beg to move.

Lord Lyell

The purpose of the licensing requirement, following the recommendation of the working party, is to enable local authorities to regulate the growing phenomenon of what have become known as Sunday, or private, markets which are directed very much at retail customers. Such markets have given rise to concern, such as complaints from local residents of general annoyance, and complaints from shopkeepers, and there has also been concern about the time and manpower devoted by the police to controlling traffic and pedestrians and dealing with other problems. In terms of Clause 42 councils have a discretionary power to require a licence for the holding of any, or indeed all, such private markets throughout all, or any part, of their particular area.

The amendment seeks to extend licensing to markets for the sale of livestock or grain and to wholesale markets for the sale of fruit, vegetables, fish or meat. Such markets are essential to all of us in society, and to say that we have had such markets for a long time is to understate the case. These markets are not the type of markets which gave rise to the concern expressed by the working party in its recommendations for a licensing requirement. These markets are a traditional, and indeed an integral, part of our everyday life, and normally they are held in purpose-built accommodation and are subject to planning and building Act control. There is no evidence that they give rise to any difficulties which would now require local authorities to have powers to license them. To us the amendment seems to be both unnecessary and undesirable, and therefore I cannot recommend it to the Committee.

Lord Ross of Marnock

That is rather a pity, bearing in mind the obligation on the local authority in respect of the food and drugs Acts. In Scotland we do things very differently, even in relation to the food and drugs Acts, and I should have thought it desirable that the local authorities should satisfy themselves about conditions at markets other than their own markets. Most of the markets in Scotland are for the sale of livestock. Certainly in Ayr, and in other places that I know, such as Glasgow, the fruit market is owned by the local authority. I believe that markets for livestock and for fruit and vegetables should be under the control of the local authority. I might have to return to the point, but I do not want to pursue it at the moment, and so I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Ross of Marnock moved Amendment No. 53C: Page 29, line 4, after first (" of ") insert (" days and ").

The noble Lord said: This is the amendment in which I suggest that the local authority, the licensing authority, should be able to regulate not only the hours of opening, but also the days of opening of the private markets. The Minister who replied to my previous amendment mentioned the fact that concern has been expressed by the public in many areas at the siting of these new forms of private markets which are dealt with under the Bill and are going to be licensed. I do not think there is the slightest doubt about it but that many people are very concerned about them in relation to their siting. I have not heard many complaints about Ingliston, which is one that is fairly new, is being built up and is very popular—popular with everyone, probably, except the police, who, on a Sunday, have to deal with that business of a considerably expanded traffic.

But in various parts of our older burghs open spaces are being taken over and are being used for private markets that never existed before, and I am very glad indeed that there is going to be the question of regulation and that they are going to look at the provision of toilet facilities, the site of the premises and the maintenance of public order. Of course, it is the ratepayers who have to pay for the police being there to look after public order. In fact, as far as I can see, the only people who pay for public order are the football clubs. Certainly in Scotland they do, and they do so in England as well. They are absolutely soaked in respect of the demands of the police. But there are other occasions—and quite big public occasions—when the police are provided free and it is not only the people of the area who get the benefit of the maintenance of law and order.

But one of the things that I know has concerned many people in Scotland is that many of these markets open on Sundays as well, and that very much annoys them. I know your Lordships are all aware of the whole problem of Sunday opening. The one part of this country where you do not need a licence to open on a Sunday is Scotland. There was no Bill to regulate Sunday opening in relation to Scotland because Scotland was thought to be such a Presbyterian country that nobody would open on Sunday. How wrong they proved to be! During all the week-ends at Christmas, and at any other time that they like, shops are now open in Scotland on a Sunday; and it may well be that part of the reason for their opening on Sundays is because these private markets open on Sundays.

I want to give power to the local authority to regulate, not just the hours of opening but also the days of opening. It may well be said that they have got that; it is implicit in the word " hours ". I do not think it is. I think it is far better that it is stated in the Bill in respect of the powers of the local authority, and then the local ratepayers who are annoyed about this and the people who are annoyed about Sunday opening can say, " You have got the power—what are you going to do about it? " I beg to move.

Lord Lyell

In his amendment the noble Lord is seeking to add to the mandatory conditions set out in subsection (3), which lays down what a local authority is required to include in any licence for a private market operator, the requirement that they regulate the days on which the private market may be permitted to operate. It seems that the noble Lord is not content to rest on the permissive power that already exists in the Bill, which is to be found in paragraph 5(2) of Schedule 1. I would be inclined to argue that the phrase " regulation of hours of opening " indeed embraces the days to which those hours relate, but I would accept that there may be a certain element of ambiguity.

I would myself be content to leave it to the local authorities to decide in all circumstances whether or not they wished, whether under subsection 3(a) which is before us now and which we are discussing in this current amendment or, indeed, under paragraph 5 of the schedule, to spell out in detail the days of the week to which the licence relates. Indeed, such a course would be consistent with the noble Lord's desire for economy of words. But I would go on to say that if the noble Lord wishes to press the case for his amendment being made at this point in Clause 42, then we would not wish to oppose this amendment because we think there is sufficient doubt to enable us to accept this amendment, certainly in a clarificatory sense.

Lord Ross of Marnock

I have no desire to have an economy of words at the expense of clarity of intention, and I would ask the Government to accept the amendment.

On Question, amendment agreed to.

Clause 42, as amended, agreed to.

Clause 43 [Public entertainment licences]:

5.26 p.m.

Lord Ross of Marnock moved Amendment No. 53D: Page 29, leave out line 28.

The noble Lord said: We now come to one of the mandatory areas of licensing, where the local authorities, whether or not they like it, have to apply a system of licensing involving the issue of what is to be known as a "public entertainment licence"; and we have here been given a long list or catalogue of the things which, without prejudice to the generality, have got to be licensed. Why they went so far as this, I do not know. I myself started making another list of things that are worth licensing for the entertainment of the public, including, of course, horseracing and greyhound racing and a few other things; but I do not know why certain things were singled out. I did not quite see why, in this day and age, a billiard or pool room, was being singled out for special mention so far as licensing is concerned.

In the days when I was brought up in Presbyterian Scotland the sign of a mis-spent youth was time spent in a billiard room playing billiards and pool. I never dared to venture into any such place. Mind you, the only one near us was in the Conservative Club—not the Conservative Club, but the Unionist Club, because we never had Conservatives in Scotland, they were Unionists in those days. But things are slightly different now. It has become so respectable and so attractive from the point of view of watching in television that dear old ladies of the most fervent Presbyterian persuasion are, I am perfectly sure, entranced by the activities of Thorburn, Steve Davis and all the others who delight us in " Pot Black " and the other championships which are going to start at Wembley, I think, this week. I think this one is a hit out of date, even in a Scottish Civic Government Bill, so I suggest that we leave out " billiard or pool room ". I beg to move.

The Earl of Mansfield

I have to say to the noble Lord, Lord Ross, that the Government do not agree that it is desirable to exclude billiard halls from the licensing requirement; and even if it were, and even if this amendment was agreed to, in fact it would not relieve them—and I shall explain why. I accept that billiards (although I do not think most people go to these places to play billiards these days, but snooker or whatever) is popular and that most of these establishments are well conducted, but they do attract a considerable clientele and on safety grounds alone I think they should be properly regulated. At any rate, that is what the working party concluded in their report on page 14, and the Government have not been urged by anybody except the noble Lord to disagree with the working party in its report.

Then, I think I should explain this for the benefit of the Committee, although it is possibly more of a "clause stand part " argument than merely going to this particular amendment. The various places which are set out in Clause 43 (2) paragraphs (a) to (j) are illustrative and are put in there, as I understand it, because in many cases they formed the subject of legislation under the old Burgh Police Act; but in fact the criterion for the imposition of a licensing requirement is set out in the preamble to the subsection. In other words, members of the public are admitted or permitted to use entertainment or recreational facilities, on payment of money or money's worth ". That is the criterion. So, as I said, a commercial billiards hall will still fall within the provisions of this clause whether or not it is in the illustrative list. Conversely, if you have a billiards hall run on a non-commercial basis—for instance, run by a youth club and no money is charged for admission—then it would not be caught by the provisions of this clause. For those two reasons I would ask the noble Lord to withdraw his amendment.

The Earl of Selkirk

What is a pool room?

The Earl of Mansfield

A pool room is where one resorts to play pool, which is not unrelated to billiards.

Lord Ross of Marnock

As against the next clause which deals with a swimming pool. This also raises questions. The working party report was not enthusiastic about billiards and pool rooms. They referred to the fact that there were local and general Acts giving powers at the moment and that there are not many of these establishments nowadays. They advise that the powers are still useful and might be retained. The one thing that they did not mention was the one thing by which the Minister of State justified it. That was crowd control. They were concerned just that the provisions governing licences should be simple, basically a requirement to hold a licence and the offence of failing to hold one; and that the conditions of the licence should specify such matters as hours of opening. That is all.

Frankly, I think we are cluttering up the statute book with unnecessary things; and all of these things, anyway, are covered. Why do we have this specified list that is singled out for special mention when all the items are covered anyway? I am surprised about this. There should be a saving, said the working party, for tables in hotels and licensed premises. I suppose that that goes for swimming pools in hotels, too; although in these hotels (at least, the ones I am thinking of) you are asked to pay additionally to use the swimming pool. I should like to know if they are covered. Is a special licence going to be required for the swimming pool in the Gleaneagles Hotel and the Turnberry Hotel? It must be so; there is nothing to say that they are left out. I think it right that the relatively poor people who use these undistinguished premises should be subject to the same conditions as anyone else. I am disappointed that it has been suggested that billiards and pool rooms must be continued and specially designated as requiring the licence. However, we hope that the whole of this will be looked at during the long period between this and the next stage of the Bill and that the Government will come to some different conclusion. In that case, I will not press the amendment.

Amendment, by leave, withdrawn.

5.43 p.m.

Lord Mackie of Benshie moved Amendment No. 54: Page 29, leave out line 32.

The noble Lord said: I should like to move the amendment which stands in my name and in that of my noble friend Lord Thurso. He and I and many other noble Lords, I am sure, have attended concerts or political meetings and other functions in village schools. I have seen concerts so crowded that you could not get anyone else in and, in case of fire, could not have got anyone out. We wondered what safeguards the Government thought there were for excluding premises used as educational establishments. I should have thought that the restrictions over the page were quite useful: to restrict the use of premises to specified kinds of entertainment with a limit on the number of persons; and that this would be useful from a safety point of view. Perhaps the whole thing is covered in other ways, but I think I should like to hear what the Government have to say. I beg to move.

The Earl of Mansfield

The noble Lord, Lord Mackie of Benshie, seeks to delete, premises used as an educational establishment ", from the list of premises exempted. If this amendment was agreed to, a licence would be required for the use of any such premises for public entertainment. During the debate on Second Reading of this Bill, noble Lords will recall that my noble friend Lord Campbell of Croy and others held strongly to the view that licensing should be imposed only where it was strictly necessary for the protection of the public. Various instances were brought out as examples of what I might call innocent goings on which do not require the rather draconian mechanism of the local licensing authorities in order that they should be allowed to take place.

I have been bearing this very much in mind, but at the same time I am conscious that one wants to avoid the unlicensed use of educational premises by bodies which have no formal connection with the main purpose of the establishment. I am, therefore, considering an amendment to this clause making it clear that educational establishments are exempt from the licensing requirement only where they are being used by appropriate bodies for educational purposes and not when they are leased out for commercial or unrelated purposes to which the public are admitted on payment.

What it comes to is that it would be slightly absurd to require a local primary school or a parent-teacher association to be licensed if they go in for some harm-less local fund-raising ctivities. Where there is an activity which has nothing to do with the educational authorities,which, in fact, can monitor perfectly well the activities which go on in their premises and particularly when the organising agent, so to speak, has something to do with education, that is one thing. On the other hand, there is a case probably for bringing outside organisations within the sphere of the clause. I will reconsider the matter if the noble Lord is good enough to withdraw his amendment for now.

Lord Airedale

It is encouraging to know that the Minister has in mind an amendment of his own to deal with this problem. Will he bear in mind that quite often a village school is used by, say, the local horticultural society, who hold a dinner and, perhaps, have a cabaret?—so that there would be the entertainment coming in. It is perfectly orderly and there is no question of overcrowding, and so on. But the horticultural society are going to be excluded if the Minister's amendment stresses the educational aspect—unless one regards horticultural societies as educational societies, which probably is not the case. Perhaps he could bear examples of that kind in mind when considering his amendment.

Lord Ross of Marnock

My interest in this matter was raised by a gentleman from Lanark. He was concerned about churches and the use of church halls. He said, " Unless this is covered by the definition of " educational establishment ' …" It took me immediately to the Library and I had a look at what " educational establishment " covers here. It is on page 30: ' educational establishment ' has the meaning given by paragraphs (i) and (ii) of the definition of that expression in section 135(1) of the Education (Scotland) Act 1980 and also includes the institutions and premises excluded … ". Let us look at what it covers. It covers a school, a junior college or any other institution for the provision of any form of further education; technical colleges. They can hold entertainments; they charge people what they like and there is no need for a licence. That is only the start.

I hope that the noble Lord realises what he started by leaving out " educational establishment ". May I tell him that the young farmers in Ayrshire last week had an entertainment on at Craigie College, which is a college of education. It was packed out every night. I do not doubt that a considerable sum of money was made available for a charity or something like that. The noble Lord says that it should not be used without a licence.

It goes beyond that—and I am very glad that there is a right reverend Prelate present—because among the excluded areas of places of possible entertainment (which are now brought in by that wiping out of the exception) are a university and a theological college. These places can be used as places of entertainment now without a licence. Also a club or other centre conducted by a voluntary society or body. The university union could run dances for union funds. No question arises about the safety of the public or anybody else; and so it goes on. Bearing in mind the complaints I have had from other people about church halls being left out—in other words they have to have licences—this should be a very wide exception indeed.

I sincerely hope that when the noble Lord is looking at this again he will take it a hit wider. I have an amendment down—I could cover it here—that church buildings and church premises adjoining should be accepted. That is fair enough. It may not go far enough. The English Bill only leaves out churches and church buildings in respect of music alone. There is a narrower definition in another amendment. I hope that the Government will have a look at this whole area in respect of premises that are going to be left out and which will not require premises. As it stands, " educational establishment " is far too wide.

Lord Howie of Troon

I should like to take up the point raised by my noble friend Lord Ross when he referred to student unions. I recall that a number of years ago, when I was younger and more athletic than I now am, I used to play billiards in the student union at the Royal Technical College, Glasgow—and sometimes even in Glasgow University. This draws attention to this amendment and the one that we debated a few moments ago. I wonder why ordinary commercial billiards rooms were required to be licensed but not students' union premises. There may be some distinction to be drawn between the two, but I am certain it has nothing whatever to do with the protection of the public, because billiards in my experience was a far from dangerous game.

Lord Mackie of Benshie

I did not realise the can of worms that we would uncover; but that is the purpose of debate—one uncovers a whole lot of factors which have not been considered. My noble friend and I were concerned with the safety aspect in a great many village schools in the country areas. When the Minister is considering these matters, will he also take into account my noble friend's thoughts on local organisations which may or may not be termed as having an educational background? Certainly young farmers could be termed as having an educational purpose, not in all their activities but taken in the main. With these remarks, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.46 p.m.

Lord Ross of Marnock moved Amendment No. 54A: Page 29, line 41, leave out (" or ").

The noble Lord said: This is a purely drafting amendment to make sense of the later amendment which inserts, Churches and church buildings ". Entertainments may go on in the church hall or the church itself and there might be a charge for admission. I think anyone gets his money's worth in going to a church at any time. I do not think that churches and church halls should be left off the list in the Bill. I do not know whether the Government feel that this is too wide or not wide enough.

I am prepared to listen to any soothing words they have on this point, provided that they are prepared to accept the spirit of the amendment that I am moving. I do not think that it would be a question of public safety because of overcrowding—I should like to think it was. This is not just for entertainment but even for the ordinary activities on Sundays. But churches and church buildings are slightly different, they are drawing usually on just the people in the church themselves. Safety does not really arise. I know that Glasgow would have every conceivable building covered for every conceivable occasion. They think that there should be no exceptions at all. I think that there should be exceptions and one should be churches and church premises. I beg to move.

The Earl of Mansfield

I should like to speak to Amendments Nos. 54A, 54B and 54C together in order to save time. I have a lot of sympathy with the amendments of the noble Lords, Lord Ross and Lord Mackie. I emphasise that what is to be regulated here is the commercial element. If people merely go to church—even if they pack it to the doors—such would not come under the ambit of Clause 43(1) because the public are not admitted on payment of money or money's worth. I do not think that a collection during the final hymn counts for these purposes. If the local church Sunday school puts on a nativity play for admission to which they charge and raise a little money, the Government have no desire to see them go to a licensing authority for a licence. If the intention of the noble Lord refers, as I think it does, to those church organisations which occasionally use church premises for fund-raising efforts, the Government would not dissent from that for one moment, in the sense that, despite the overriding public safety provisions, one would not want to see licences having to be obtained for those events.

But there are difficulties. For instance, where a professional theatrical company takes over a church hall on a commercial basis for the duration of the Edinburgh Festival, then quite different considerations obtain. For reasons of public safety, I could not possibly accept the view, nor do I think the noble Lord, Lord Ross, would put it forward, that in those circumstances a licence should not be applied for. So that is the difficulty. I do not think the amendment is satisfactory as it stands at present.

The same goes also for the amendment of the noble Lord, Lord Mackie. This really refers only to music being played, and I understand that the amendment is prompted by very laudable anxieties on the part of the Salvation Army. Obviously, while the Salvation Army are entitled to put on their concerts, if that is what they are, and charge for admission to their own halls, that is something upon which one would not wish to impose a licence in any circumstances. However, we have to consider the wording. The noble Lord's amendment, if I may say so, is modelled on rather different provisions in the English Bill, and I think we have to consider the matter. So what I should like to do is to bring forward an appropriate Government amendment at a later stage in effect to exempt bona fide church use by associated church organisations on church premises, if I may so describe them. On that basis, I hope that the noble Lord, Lord Ross, might withdraw his amendment and possibly that the noble Lord. Lord Mackie, might not move his amendment.

Lord Ross of Marnock

I am certainly grateful to the Minister for what he has said. He has obviously thought about it and I think the conclusion he has come to is right. I had not appreciated the difficulty about the churches that I know are used during the Edinburgh Festival. Indeed, the Minister is quite right: I will withdraw this amendment and I will not move my next amendment.

Lord Mackie of Benshie

Before we move on, may I simply say that I am very glad to have the assurance from the Minister? As he rightly stated, it is a cause of concern to the Salvation Army that their premises are not always regarded as " a church ", and of course the use of music by the Salvation Army is probably very much greater than in an ordinary church. But, as long as the noble Earl recognises that the Citadel is a very good church, then I believe the Salvation Army will be satisfied that justice has been done.

Amendment, by leave, withdrawn.

[Amendments Nos. 54B and 54C not moved.]

On Question, Whether Clause 43 shall stand part of the Bill?

Baroness Phillips

I have been sitting through this debate with great interest and I am rather relieved to hear that if this is a dry run for the English Bill there is not as much material in the English Bill, if I understood my noble friend Lord Ross correctly. Having spent many years as secretary of an educational charity and having to plough one's way through Acts of Parliament to find ways of not paying VAT or having an entertainment where you do not have to conform to certain laws, it seems to me that we are dealing here with matters which ought to be further discussed, as they could make life much more difficult.

1 have always understood that it is bad legislation to spell out what you do exclude or what you do license, and then go on to specify what you exclude, because it gives the opportunity for people who wish to get round an Act of Parliament to do just that. The particular question I am interested in is: what is the meaning of " money " or " money's worth "? There used to be in the old Acts concerning places of entertainment, and particularly charitable entertainment, a distinction made between money paid at the door, such events then being held to be public, and tickets purchased before the event. Neither of those are mentioned in this section. " Money's worth " seems to suggest to me barter, and I did not think that they did this in Scotland—we have not done it in England and Wales for a very long time. I am wondering where we get a definition which would enable a charity to actually run one of these events without having a licence, even if it went within these little exclusions, but which would still permit charging for entry. I do not wish to introduce a totally different point at this stage, but if this is a dry run for the English Bill it is proving extremely useful.

Lord Howie of Troon

I should like to take up the point about bad law which was raised by my noble friend Lady Phillips. I recall a year or more ago, while we were debating in this House the Bill that became the Employment Act 1980, moving amendments to exclude a certain class of person from the provisions of that particular Bill. I was assured during the course of the debate by no less an authority than the noble and learned Lord the Lord Chancellor that it was very bad law to list inclusions and exclusions in the way I was proposing to do. In the face of that high authority, I withdrew my amendments. I am beginning to wonder whether the noble and learned Lord the Lord Chancellor was right or whether I was right on that occasion, because the legislation before us contains exactly what he was then suggesting was wrong. I shall be interested to see how the Committee deals with this clause, and I daresay that if we ever get employment Bills coming before us again I will put in the same amendments as I did before, armed with the assurance that what was then thought to be bad law has now become good law.

The Earl of Mansfield

I rather suspect that the noble Baroness, Lady Phillips, and the noble Lord, Lord Howie of Troon, have not been in their places while the various amendments to Clause 43 have been discussed. Therefore I hope the Committee will forgive me if I very briefly say one or two things.

First, I should like to say that I explained that the list of types of buildings or places to which Clause 43 applies is illustrative and is taken because of the old Burgh Police Acts, which in fact mentioned all these different types of activity. It says in subsection (2), " without prejudice to the generality ". This is not a definitive list and still less an exhaustive one. The criterion as to what constitutes a place of public entertainment is given at the beginning of the subsection, and it says: place of public entertainment ' means any place where, on payment of money or money's worth, members of the public are admitted or permitted to ", and so on. So it is actually quite different, I think, from the legislation in the last Session to which the noble Lord referred.

The second matter which was taken up by the noble Baroness, Lady Phillips, concerned " money or money's worth ". I think that " money " is obvious. " Money's worth ", for instance, could be the purchase of a programme if it were a children's play or something of that kind. Equally, it could be something like the purchase of a token to put into a slot machine which then lets one go through a bar or something like that in order to get into the body of the hall. Those are two examples of moneys' worth.

Then the noble Baroness, Lady Phillips, went on to ask: how can charities be exempted from this legislation? The answer is that we do not want to exempt charities from this legislation if the over-riding public safety considerations make it proper that they should be within it. The reason why I say that is that the licence is required for the use of premises. This is not a way of taxing the poor charity to relieve it of some of its cash which it would rather devote to the purposes of the charity. It is a means for the licensing authority to know, as it were, what is happening in its area and, above all, to lay down fire and safety rules for places of entertainment where the public congregate on payment of a fee. So if, for instance, you have a village hall which is probably used—as it certainly is in my part of the world—every Saturday for all kinds of activities from the ladies' badminton club to a Burns' Night supper, such a hall will be licensed by the licensing authority at the beginning of the period and such licence, and the various conditions which may be applicable to it, will be continued for the duration of the licensing period. I hope that that clears up the matter for the noble Baroness and the noble Lord.

Lord Howie of Troon

Very briefly, may I say that, although I was admonished for my absence at one stage, I have been here for some of the time. I was wondering, for my own guidance, whether, in any future amendment which I may bring forward on later Bills, I should include some such phrase as " without prejudice to the generality ", and whether I shall then be able to overcome the objections of the noble and learned Lord the Lord Chancellor.

The Earl of Mansfield

I cannot answer hypothetical questions of that nature on a Scottish Bill. When I am no longer a member of the Government, I shall be delighted to so do on payment of a fee.

Clause 43 agreed to.

Clause 44 agreed to.

Clause 45 [Window cleaners' licences]:

6.2 p.m.

The Earl of Selkirk moved Amendment No. 55: Page 31, line 7, leave out from (" licence ", ") to end of line 25 and insert (" may be issued at the discretion of the Council to a person who is carrying on the trade of or being employed as a window cleaner.").

The noble Earl said: This clause deals with window cleaners. It was rather hotly contested in the course of the Second Reading debate and powerful arguments were advanced for taking it out altogether. The noble Lord, Lord Ross, has down an amendment to remove Clause 45 altogether. I was, however, greatly impressed by the strong and powerful arguments which my noble friend used for retaining some licensing for window cleaners, and I have put forward this amendment which is a halfway house.

It would be voluntary for window cleaners to get some kind of identity, or, at least a licence, from the local authority, should they so wish. There is quite a lot to be said for this, because, if someone comes along and asks, " Can I clean your windows? ", he may be some kind of crook who will take advantage of all he sees by looking through the window. It would be a consolation to householders if they knew, when they let someone into the house, that he was, at least, known to the local authority and was identified by them.

That is what normally happens in the case of people who read gas and electricity meters, and with other authorities who go into people's houses. It may not be necessary in the case of window cleaners, but I put this forward as a suggestion which I believe will not be unwelcome, so as to give a certain assurance that the person in question is not a well-known thief or robber and, so far as is known, is a person of reasonably good character. I beg to move.

The Earl of Mansfield

I am bound to say that, when I read my noble friend's amendment, I had not realised that he intended to make the obtaining of a licence by a window cleaner a voluntary act. In other words, what my noble friend says this afternoon is that, in these circumstances, a window cleaner can obtain a licence, or not, according to what he wishes. Equally, the licensing of window cleaners would be discretionary, so far as the licensing authority was concerned, as indeed it already is under the terms of Clause 9. I think that my noble friend's attempt to find a compromise falls smartly between the two stools, and I appreciate the motivation behind the tabling of this amendment.

To start with, let me just deal with the matter from the point of view of the licensing authority. As I have said, these licences are optional at the behest of the licensing authority. I suppose that the majority of authorities will not feel that it is necessary to license window cleaners. I suspect that the only window cleaners who will require licences are those in some of the conurbations where, unfortunately, the crime rate is the highest. I have to remind the Committee that it is particularly in relation to crime, and at the request of the police, that these provisions have been put into the Bill, and I think I said on Second Reading something to the effect that the case for licensing window cleaners rests on crime prevention.

One has to bear in mind that window cleaners enjoy a very privileged position, and I do not mean only to look through windows to see what is going on behind them. They also have a very privileged position, in that they have a very ready access to buildings, and many folk who go out to work have to leave their windows unsnibbed so that the window cleaner can clean both sides of the windows. He therefore has a perfect opportunity to get into somebody's house and do what he likes inside. So I believe that the provisions in subsections (2), (3) and (4) of the clause are essential, if this safeguard to the public is to be of any use at all.

I now come to the other matter which is inherent in my noble friend's amendment, because one of its effects is that a person who is a window cleaner and who is licensed will be under no duty to carry the licence, or some means of identification, about with him. We feel not only that window cleaners should be licensed, but that they should be under an obligation to show their licence. We think that this is a basic protection. Anybody who has anything to do with the police, as so many of our Lordships have in your capacities of magistrates and so on, must have had case after case where members of the public have admitted strangers to their homes and did not take the precaution of asking for means of identification.

We think it is absolutely essential for window cleaners to be enjoined, as part of the granting of the licence, to show their licence on demand to the householder. So the whole thing really comes back to good faith on the part of window cleaners, and the production of a licence, which shows that the person enjoys the confidence of the licensing authority, is the best proof positive of the window cleaner's good faith. Therefore, although I cannot agree with my noble friend's amendment, which I know he put forward in a spirit of compromise, I appreciate the motivation behind it.

The Earl of Selkirk

I am sorry if my amendment does not meet the purpose which I intended, though I think that a narrow interpretation of it would give it that meaning. I do not make it compulsory and I remove the fine which could be imposed on a neighbour. Let us bear in mind that if you pay a neighbour 30 bob for cleaning your windows and he is caught cleaning those windows by a policeman, he might be fined £25. I say that this is unnecessary. It should be perfectly possible to give a man a small tip and say, " Clean my windows ". That is impossible under the Bill. I believe that is wrong, supposing, of course, that the local authority adopts Clause 45. I say that anybody should be able to clean windows if they want to, but that the householder should be able to say, " Can you show me an identity card authorising you to do so?" That is a simpler process. I am not going to press the matter. If the noble Earl wishes to say something, by all means let him say it.

The Earl of Mansfield

If my noble friend is canny enough to persuade his neighbour to clean his windows for 30 bob—I do not know how many windows my noble friend has—that person is not carrying on the trade of a window cleaner. Indeed, he would very soon go broke. Therefore, the provisions of Clause 45 do not come into the picture.

The Earl of Selkirk

I am going to venture to disagree with my noble friend. The words are, " being employed as a window cleaner ". One window would make that employment. I am not going to carry the argument any further. If the noble Earl and the Committee do not like it, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.12 p.m.

On Question, Whether Clause 45 shall stand part of the Bill?

Lord Ross of Marnock

I think the clause should come out of the Bill. It is so confused and so muddled. Most of us were fairly clear about it until the noble Earl the Minister of State told us that window cleaners could not possibly be trading as a business when obviously he had not had his attention fully drawn to the point that had been made: An authorised officer of a local authority, a constable or any other person having reasonable cause to require to see it, may require any person who the officer, the constable, or, as the case may be the other person has reasonable cause to believe is trading or being employed as a window cleaner forthwith to exhibit his window cleaner's licence ". Why not just produce it? He has got to exhibit the licence. How do you exhibit rather than produce? He is not required to show the licence when he is carrying on his business. To exhibit his licence means, I should have thought, to show publicly his licence. If he is asked by some person who has reasonable cause to require to see his licence, he has to exhibit it. I do not know what " reasonable cause to require to see it " can possibly mean. He may be required to produce it by some passer-by who has his suspicions aroused, or by a constable or an authorised officer of the local authority.

The more you think of this the more silly it becomes. How many local authority officers will be sent round the streets of Glasgow looking for window cleaners and asking them to exhibit their licences? I am sure that the working party was not very keen on this clause. They dropped chimney sweeps. It was thought at one time that they would include chimney sweeps. Then it was realised that most chimneys are swept from the outside, not from the inside. But the chimney sweep still has to get on to the roof. There still has to be entry into and around buildings. Noble Lords may remember the old Father Brown shop story of the man who was invisible—the postman whom nobody saw. If a sweep is moving around buildings, people think nothing of it. It is an easy way to obtain access and get acceptance by the public that you are doing something or other. But chimney sweeps have been left out. The district council of the City of Glasgow want sweeps back in. I have not put down an amendment of that kind. I do not agree with it. We have to depend upon the common sense of people who hire somebody to wash their windows. People usually want the outside rather than the inside of their windows to be washed. I know that during the school holidays many youngsters are prepared to wash windows. People are lucky to get them. They do not want to have to turn them away because they do not hold a licence. If somebody is asked by a person in authority to produce his licence, then he must exhibit it. He does not exhibit it otherwise. That is probably an offence, too. We are going a little far. At one time a licence was required by beggars, pedlars and messengers. Caddies of some kind were in the old Scottish legislation, bootblacks, chimney sweeps and also window cleaners. We have got rid of so many of them. We do not require this one. I suggest that we should leave it out.

We have not had a Division. The discussion has been friendly. This is an important matter, but I do not want to call a Division. I hope the Minister will say that he is prepared to have a look at this point.

Lord Howie of Troon

Noble Lords may recall that not very long ago the noble Earl the Minister offered to give me certain hypothetical advice of a legal nature, for a fee. I should be perfectly willing to listen to that advice, though I am not sure that I should be too keen on the fee. Let us consider another hypothetical case. Let us suppose that instead of offering legal advice for a fee the noble Earl offered to wash my windows for a fee—or, if not he, the neighbour of the noble Earl, Lord Selkirk, who goes in for that kind of thing. In the first place, would the man offering legal advice for a fee be thought to be in trade in some sense as a lawyer, or employed as a lawyer? He may be; I am not sure. But if so, would it be different? And how would it differ if, instead of offering legal advice for a fee, he offered window cleaning for a fee? I ask the question in perplexity and for no other reason.

Lord Airedale

There are some curious words in this clause. Although a window cleaner has to exhibit his licence under subsection (2), under subsection (4) an authorised officer does not have to exhibit his authorisation. He only has to produce it. A police officer not in uniform does not have to exhibit his identification; he only has to produce it. I should have thought it would be enough if a window cleaner only had to produce his licence, and not exhibit it.

The Earl of Mansfield

The distinction is that it is contemplated that the window cleaner might have something nailed to his little ladder. That is exhibiting his licence, whereas the officer of the authority will produce something from his wallet which identifies him as being in the position which he holds. That is the reason for the different language.

So far as the noble Lord, Lord Howie of Troon, is concerned, one has to keep a sense of proportion. I am thinking of the photograph of the somewhat elderly boy scouts when they came to the Palace of Westminster, I think yesterday. Obviously somebody taking part in a bob-a-job week and offering to clean windows, which is what I used to get up to years ago, does not thereby create a contract of employment which would make the unfortunate boy scout subject to the rigours of the law for not being licensed under the terms of this clause. One must keep a sense of proportion about it.

What I want to do is to deal with the noble Lord, Lord Ross of Marnock. He has not produced a single valid reason, and hardly an invalid one, for doing away with this system of licensing window cleaners. Edinburgh, Glasgow, Aberdeen and Dundee all license window cleaners. I believe that Edinburgh District Council has no fewer than 508 window cleaners currently licensed. They all want to continue to license window cleaners. The police, for the purposes of crime prevention, want window cleaners to be licensed. Therefore, when the noble Lord is not thinking about boot blacks and chimney sweeps I would ask him for his reasons.

Is it an unnecessary fetter on the civil liberties of the individual? Is it a layer of bureaucracy which we should strip away? Why is it that he wants to get rid of this licensing system? I would remind the Committee that, of the people who hang about houses who are up to no good, it is the easiest of all to say that one is a window cleaner, because a window cleaner does not need much equipment or a uniform. That, unfortunately, is the reason why, since time immemorial, window cleaners have been the butt of jokes and stories, because of things they get up to—not least of which is burglaring peoples' houses.

The clause is not intended to place a restriction on their trade. It is a trade that is much in demand. All the clause is intended to do is enable a bona fide window cleaner to be identified as such when he is on the job, and, perhaps more important, a person who says that he is a window cleaner or who sets out to be a window cleaner but who is not to be easily recognised. I believe this will deter ill-minded persons from passing themselves off as window cleaners. The working party said that such a provision would be useful in urban areas but doubted whether it would be in rural areas. The Government agrees with this and this is why the clause is discretionary in terms of Clause 9. This is a useful clause and I would be sorry if it were not agreed to.

Lord Wilson of Langside

I have listened with great interest to the noble Earl's reply to the suggestion that this clause should be dropped. There is, of course, much force in his part about concern with the criminal fraternity in Glasgow, Aberdeen and Edinburgh, and indeed elsewhere. But the first thing that strikes me about that is that in the days when I was dealing, in one way or another, with the criminal fraternity, especially in Glasgow, I was astonished at the number of that fraternity who when asked what their employment was replied that it was that of a window cleaner. I never had the opportunity to ascertain whether or not these people held a licence for that occupation, but I believe there is a certain amount of illusion as to the extent to which, by imposing licensing provisions in this particular form, one will bring the situation under better control.

I may be wrong about this, but it occurs to me that one of the reasons why crime is or appears to be somewhat more intractable as a problem than it was 20 or 50 years ago is that the motor-car is much more common and that criminals have ready access to motor-cars. This makes criminal activities much easier for them and makes it much easier to escape detection at high speed, and so on. No one has ever suggested that a licence to drive a motor-car should be dependent on the absence of a serious criminal record. I appreciate that the analogy is not complete, but it does have a point.

By objecting to this clause, those who dislike as I do, for the reasons which the noble Lord, Lord Ross of Marnock, has given, do not dislike it because it is putting an unnecessary fetter on the liberty of the subject and so on, as the noble Earl suggested, but because it will be yet another example of the domestic trivia which make life more difficult for so many people. Here, it will be in not being able to get a window cleaner because in many parts of the country people who clean windows will no longer want to do so because they will not go to the trouble of getting a licence. For my part, I thought there was much common sense (and I am sorry I did not say so at the time) in the amendment moved by the noble Earl, Lord Selkirk. He was trying to find a solution which would ensure that the criminal fraternity did not get at our windows. At the same time, this domestic problem of getting one's windows cleaned—which is a very irritating thing which has nothing to do with the levity of the subject but just makes life a little more irritating than it needs to be—is going to he rendered more difficult for many people. I wish that the Government would exercise a little more ingenuity in the context of this sort of thing than they appear willing to do.

Lord Howie of Troon

I am very sympathetic to the noble Earl the Minister in his desire to protect us from burglaries and things of that kind. I would go a long way with him in the arguments he has used in defence of his clause, but I am not wholly convinced that he answered my objections wholly satisfactorily. I can see that " carrying on the trade of " implies some kind of continuity and that it might therefore be reasonably licensable but I am not sure that " being employed as " has quite the same sense of continuity about it. We can perhaps get past the neighbour who cleans windows once for a fee. He would be being employed in a sense but it would be absurd if he had to be licensed to do it. Cleaning windows is the kind of thing that schoolboys are quite likely to do during the Easter holidays, lasting for a fortnight. There is an element of continuity there but they are not necessarily " being employed " although they will certainly want a fee. I am not talking here of " bob-a-job " or anything of that charitable nature but about young fellows trying to turn an honest penny for their own profit. Are we seriously to suggest that schoolboys working at cleaning windows during the Easter holidays or during the longer summer holidays will require a licence in order to carry out this very sensible service to the public? Is there not room here for some exclusions to the generality which we have allowed in an earlier debate?

Lord Ross of Marnock

I raised this simply because it is a bit pettifogging, in view of the difficulty people have in getting window cleaners. I was delighted to hear that there are 600 window cleaners licensed in the City of Edinburgh. I reckon there are about another 600 being employed without a licence for the simple reason that people cannot get a window cleaner. I wonder whether noble Lords have looked at all the other licences. If one does not comply with them, what is the fine? It is £200, but here the fine is £25. That itself is an indication that, " We are not terribly sure about this one." The language of the clause is rather silly. There is no good saying that there is no formal contract of employment. There does not need to be one. To be employed as a window cleaner all one has to do is to clean windows.

There is also the question of exhibiting the licence. There is nothing to say that the window cleaner must exhibit his licence. It is only when some constable, or some person in authority or somebody else asks to see it that the window cleaner must exhibit it. It is the failure to exhibit a licence, not the failure to have a licence, that is penalised. I think there is a lot of muddled thinking here and I do not believe that we should proceed with it on the basis that it is going to give great protection to the public. The noble Lord says you do not need anything to be a window cleaner. Well, in many parts of Glasgow the first thing you need is a ladder. You could put that in your inside pocket and nobody would notice it! You require buckets and chamois and leathers and the rest, and you require water; but evidently that does not matter. He wants to know what people are getting up to hanging around. Well, window cleaners are getting up to the windows, and to get up to the windows requires a certain amount of climbing.

The suggestion is that somehow or other if we licensed them it would be security for the public. Will it? It is suggested that no licensed window cleaner is going to dare to break into a house. It might well be the case that you would give the impression that you do not need to worry about seeing that window cleaners are honest because they are subject to a licence and you can employ anybody you like. I think that would be false trust and confidence indeed. And people might presume that they have a licence without even asking them, and then there is more trouble. One would be much more likely to be suspected if you had been cleaning the windows. This is the point that the noble and learned Lord, Lord Wilson of Langside, was getting at. If you are going to burgle a house the one thing you do not do is to make yourself conspicuous by first of all posing as a window cleaner. I think this is all muddled thinking, and it is bad drafting and we could do without it.

Why did we drop chimney sweeps? Because the very same argument in relation to chimney sweeps in respect of protecting the public was used as is used here. We dropped them because it was just a bit too much, and we should do the same in this case.

Lord Airedale

I cannot see in the clause who is to be the licensing authority, or how much the licence is to cost, or on what terms the licence is to be issued. Do you have to show that you are a skilled window cleaner to get a licence? Do you have to show that you have no criminal record? Is the licence issued at the whim of the licensing authority, whoever it may be? And if you are an applicant and you think you have been unjustly refused a licence, do you have a right of appeal to some higher authority complaining that you have been wrongly refused permission to carry on your trade? There seem to be a lot of loose ends in this clause which have not been tied up.

The Earl of Mansfield

If I may reply to the noble Lord, Lord Airedale, if he looked at Clause 9 he would see how the licensing provisions are set up and precisely what happens in relation to licences. And if he and the noble Lord, Lord Ross, will look at Clause 7 they will see what happens if you do not have a licence. That is what is at issue, not failure to exhibit the licence, in Clause 45(3).

There has been muddled thinking all right, but certainly not on the part of the Government. The noble and learned Lord, Lord Wilson of Langside, said that when he was sitting in a judicial capacity in Glasgow, or when he was in Glasgow dealing with criminals, which perhaps is more accurate, he heard or met or talked to or read of—I know not—many criminals who claimed to be window cleaners. If that is not a first-class recommendation for what is in the Bill I do not know what is. Certainly when I was at the Bar it was one of the standard excuses for people loitering near houses to say, " I am a window cleaner ". So this at any rate is an argument for licensing. At least if a police officer or a householder sees somebody lurking round a house he will have a check as to whether or not the person is a licensed window cleaner. Of course, if my noble friend's compromise was accepted the police officer could say, " Jimmy, let's see your licence ". And he would say " Oh, I am a window cleaner all right, but I believe in the liberty of the individual and I have not applied for one ". So neither of them would be much further on.

Then both noble Lords said that the licensing of window cleaners meant a scarcity of these valuable craftsmen and one having to wait an unconscionable time to have one's windows cleaned. There has not been the slightest bit of evidence from any of the four cities in Scotland that the previous licensing arrangements, which I may say they very much wish to continue, have caused or contributed in any way to a shortage of window cleaners.

Finally the noble Lord, Lord Howie of Troon, made a point about employment. I recognise that difficulty could be caused by what I might call—not the amateur, but perhaps the window cleaner who is employed only on a casual or temporary basis. I certainly will look at the clause to see whether on reflection we should do something to let such a person out of the clause, as it were.

I think, if I may say so, we have really made very heavy weather over a clause which everybody except the three noble Lords opposite wants to retain. Not a single word has been raised in all our consultations saying that this is an intolerable infringement of the liberty of the subject. I think perhaps it might be best if we now came to some decision on the clause.

Lord Ross of Marnock

May I make one short point. Since this is so terribly important and everyone wants to retain it, will the noble Earl tell me how many people have been charged with failure to have a licence as a window cleaner in Glasgow, or in Edinburgh or anywhere else? Has anyone in Scotland, where presently a licence is required, been charged with failing to have a licence?

The Earl of Mansfield

I do not think the production of the licence at present is the subject of criminal legislation. It is the fact of their being licensed which is important.

Clause 45 agreed to.

Clause 46 [Additional activities]:

On Question, Whether Clause 46 shall stand part of the Bill?

Lord Underhill

This clause provides, as made clear in subsection (1), that the Secretary of State may designate additional activities for licensing. I would wish to raise with the Minister the question which has been urged by the Scottish Consumer Council. The noble Earl will no doubt be aware that the Consumer Council has sent to a number of noble Lords, of which I am one, a copy of a letter sent to him towards the end of December. Undoubtedly the noble Earl would not have had this letter until around Christmas time, and therefore possibly had no opportunity to consider possible amendment to the Bill.

The Consumer Council has raised a very important question regarding the one day sales held in various parts of Scotland, as they are in various parts of England. Nobody has suggested that these are not helpful, particularly those that take place in more remote areas. But it is a fact and it is suggested by the Consumer Council that this does lay the way open for dishonest individuals to palm off shoddy or faulty goods, and therefore licensing of people who hold these sales would be in the interests of the consumer. It may be argued that there is consumer protection legislation, but licensing would enable it to be properly carried out. I am assured that all the enforcement authorities would be pleased to see legislation to deal with this matter.

I would like to ask the Minister whether the Secretary of State has in mind making one day sales an additional activity for licensing, which he would have power to do under this clause, or, better still, whether the Government would consider meeting the request of the Consumer Council and tabling a separate clause to this Bill.

The Earl of Mansfield

I did see the letter in question and it is fair to say that up until now the resources of my department have been wholly exercised in getting the Bill through Parliament rather than considering what the Secretary of State may or may not do once it has received Royal Assent. I understand that we have asked the council for more information about the abuses which they say are a part of these sales. So far as I know, they are giving, the matter their attention. But I think that I can give the noble Lord the undertaking that, if after the Bill becomes an Act it is shown that these particular sales are an abuse in some way or another, or that the activity is one that needs regulation and to be brought into the ambit of licensing under Clause 46, then, of course, my right honourable friend will consider the matter and, if so advised, will take the necessary action. I am sorry that I do not think that I can be more helpful to the noble Lord, Lord Underhill, at this still comparatively early stage of the Bill.

Lord Drumalbyn

If it is an early stage of the Bill—

The Earl of Mansfield

I said " comparatively " early.

Lord Drumalbyn

If it is a comparatively early stage of the Bill, surely there is time for it to be included in the Bill? I can assure my noble friend that, from my experiences in the standards authority, there is indeed good reason for including some kind of means of keeping up with people who hold one-day sales. What happens is that they advertise the sale, they breach all kinds of Trade Descriptions Act provisions and so forth and as soon as they are caught out they change their name and come back again. There is a real matter to be looked into seriously, and I suggest that it would not be difficult to draft a clause to cover this and to include it in the legislation at this stage rather than to wait until later, because I think that the experience of all of us is that it takes very much longer to get a provision through, even if it only requires an order or a regulation, than if you have the existence of legislation before the House which concentrates people's minds on taking the opportunity to get something put right that ought to be put right. Therefore, I should like to support the noble Lord, Lord Underhill, although I have not actually seen the representations from the Consumer Council on this matter.

Baroness Elliot of Harwood

I also have received the same letter as the noble Lord, Lord Underhill, and I think that it is well worth going into this matter. It can be an abuse—I do not know whether it is or is not. Anyway, it is something that should fit into a Bill of this kind when we are making licences for different things. I hope that the noble Earl will possibly do what my noble friend has just suggested, and will not wait too long, but will get hold of the matter. It would not require a great deal of planning or anything else to put it into the Bill as it is.

The Earl of Mansfield

If my noble friends were in the Chamber to appreciate what I went through in relation to window cleaners' licences, they will know that I would not want to put anything into this Bill which was not totally desirable. In fact the matter is also being considered in another place in relation to the English Bill, and I understand that the Department of Trade are looking at it. We shall do so ourselves. I adhere to what I said to my noble friend, Lord Drumalbyn. We are still at a comparatively early stage so far as this Bill's passage through both Houses of Parliament is concerned. If the bringing of such activities into the licensing system is thought to be desirable, then I can give my noble friends the assurance that the opportunity will be there.

Lord Ross of Marnock

We are at a very early stage of the Bill and there are quite a number of activities that require the consideration of the Com- mittee, if not now, at a later stage. I have one or two ideas myself. I, too, have read the English Bill and noted the new evils in England of acupuncture establishments, massage parlours and the rest of it. It may well be that if they are to be required to be licensed in England there is no reason why they should not be licensed in Scotland. The point that was raised by my noble friend is an important one. I am not personally convinced that the stage has been reached when it should be required to be one of the activities that could be subject to licensing if the local authority feels that that is so. No, I think that there is plenty of time to do that.

I welcome the spread of interest that has been shown in Scottish window cleaning and everything else. I do not know whether it is the weather that has driven people to this consideration of the need for good government, or good legislation, covering the towns and cities of Scotland. I do not know what it is, but I welcome it and I hope it will continue. I have some ideas about licensing and local authorities being allowed to license sex shops in Scotland—just to control them, not to say that there should not be any, but to say that there should be some control for the local authority. It is in the same spirit that I look on the point raised by my noble friend. He and I certainly will talk about it and see whether or not at the next stage we should put down an amendment. I do not know when the next stage will be, but please let it not be during the World Cup, when the Scots will have other things to attend to as well as the Civic Government (Scotland) Bill.

Clause 46 agreed to.

Clause 47 [Soliciting and importuning by prostitutes]:

The Earl of Mansfield moved Amendment No. 55A: Page 32, line 14, leave out (" except that it includes ") and insert (" but includes— (a)").

The noble Earl said: I beg to move Amendment No. 55A and, with the leave of the Committee, I shall speak to Amendment No. 55B. As presently drafted, Clause 47 makes it an offence to solicit for the purpose of prostitution in any public place. For the purposes of the clause, a " public place " is defined as having the same meaning as in Clause 128—that is, any place to which the public have unrestricted access, including doorways and the common areas of tenement buildings—except that it includes any place to which at the material time, the public are permitted to have access, whether on payment or otherwise.

So the definition is wide enough to include public areas in hotels, cafés and so on, to which public access is restricted by limited capacity and opening hours, and places of entertainment to which entrance is obtained on payment of a fee. However, unlike Clause 50, the definition does not cover public transport. In other words, while it will be an offence under Clause 50 to be drunk and incapable in a train or a bus, it will not be an offence under Clause 47, as presently drafted, to solicit on a train or bus. We consider that this loophole may be exploited and that it should therefore be an offence to solicit on public transport. These amendments are therefore designed to make such behaviour an offence by bringing the definition of " public place " in Clause 47 into line with that in Clause 50. I beg to move.

Lord Ross of Marnock

I do not think that I have very much objection to the expansion of the definition to cover public transport. However, it raises interesting points. There is the question of loitering—loitering on a train, for instance—but I do not doubt that the legal experts have worked it out. It is interesting that one will be prevented from soliciting from a car but not from a taxi or a hired car. Am I right? If prostitutes are in cars—and it has been known for prostitutes to be in cars in public places—there is no bar at all upon them: as far as I can see, they can be charged. But if they do it from a taxi or hire car, that will not be possible because of the definition, which specifically leaves out taxi or hire car. I hope that some people do not get many ideas about how to go about this particular business because, as my noble friend Lord Howie of Troon knows, this business of exceptions being included can be difficult. It may well be that it is quite wrong here, but I am perfectly sure that the Scottish Office will ask us to accept it now and say that they will look at it, and, like good, kindly citizens of Scotland, we shall do that.

But this business of being able to loiter on a train is a point that interests me, as does the effect of leaving out the taxi or hire car. Is it an offence to importune from a private car but not an offence to importune from a taxi or hire car?

On Question, amendment agreed to.

The Earl of Mansfield moved Amendment No. 55B: Page 32, line 16, at end insert ("; and (b) any public coveyance other than a taxi or hire car within the meaning of section 22 of this Act.").

The noble Earl said: I beg to move.

Lord Underhill

I think it would be helpful to the Committee if we could have the Minister's comments on the points that have been raised by my noble friend Lord Ross of Marnock. I was about to raise precisely the same points as he raised. If we want to decide whether or not to go further at another stage, it would be helpful to have the Minister's comments upon them.

The Earl of Mansfield

There is all the difference in the world between soliciting in a bus or soliciting in a train, which are conveyances with a certain number of seats, and soliciting in a taxi, which has only four seats. I should have thought that it is obvious. I reassure noble Lords that this has nothing to do with kerb-crawling.

Lord Airedale

Is the answer that, if you are in a street, you are in a public place and it does not matter whether you are inside a car, a taxi or where you are—you are in a street and you are caught? But a bus or a train may not be in a street and, therefore, it is made itself a public place for the purpose of the clause.

The Earl of Mansfield

If the noble Lord reads the words of Amendments No. 55B, he will see that it includes: any public conveyance other than a taxi or hire car … ". That is what the definition is meant to include.

On Question, amendment agreed to.

Clause 47, as amended, agreed to.

Clause 48 [Urinating etc.]:

On Question, Whether Clause 48 shall stand part of the Bill?

Lord Howie of Troon

I have one very brief question to ask. I say right away that I sympathise entirely with the intention of this clause, but I am wondering whether it refers to a public place or to a private one. I can imagine circumstances in which these activities could be done in a private place; if, for example, someone left the lavatory door open, that might conceivably cause annoyance to someone, perhaps to other members of the family. However, I should have thought that a £50 fine might be overdoing it rather. I am wondering whether this clause really is as far-reaching as I imagine it to be, or if it is intended to be more circumscribed than I think.

Lord Lyell

Clause 48 is, I understand, a result of the working party, which expressed a particular view that the activity which is caught by the old offence, which I would quote as " commiting a nuisance ", is defined under Section 380 (10) of the Burgh Police (Scotland) Act 1892. This was just in reference to committing a particular offence. But I understand that the particular offence which is spelt out in Clause 48 covers both public and private places. I hope that that might give some help to the noble Lord.

Lord Howie of Troon

I am afraid that I have to ask whether the noble Lord thinks it is a good idea to make the clause quite as far-reaching as that and to include private places as well as public ones.

Lord Lyell

We should probably have to consider the offence. I attempted to delineate " committing a nuisance ", which is an attempt to bring up to date the Burgh Police (Scotland) Act 1892. To commit this particular offence, as we have it in Clause 48, is clearly both insanitary and unpleasant in both a public or a private place. The offence is given wherever it is carried out and, therefore, we think it is right that this particular offence should not be an offence in public or private.

Lord Howie of Troon

Is nuisance the same as causing annoyance?

Lord Lyell

I did not hear the first five words of the noble Lord.

Lord Howie of Troon

I said, is nuisance in this context the same as causing annoyance? It does not seem so to me, at first sight, but it may be that the Minister is right.

Lord Lyell

One can cause annoyance in many ways, but I understand that the only offence which is covered by Clause 48 is the old definition of " committing a nuisance ", which is I think fairly well spelt out in line 17 of Clause 48. Of course, the offence must also cause annoyance to another person.

Clause 48 agreed to.

Clause 49 [Dogs: fouling of pavements]:

Lord Mackie of Benshire moved Amendment No. 56: Page 32, line 23, after (" footway ") insert (" or amenity area ").

The noble Lord said: I rise to move the amendment standing in the name of my noble friend and myself. It is a very simple amendment, although I am not sure whether in our amendment it is not a little difficult to define " amenity area ". But I think that we have a very good point here. Nowadays with the number of dogs roaming the countryside, to say nothing of the towns, the amount of mess and distress that they cause is quite ludicrous. For example, in many parts of America there are notices indicating the fines and telling citizens that they must clear up and shovel up after their dogs. Dogs fouling the pavement is a subject of great merriment, but it is a most offensive habit, very prevalent and growing. I think that it is even worse in a city where there are open spaces where families take their children to play and where people let their dogs roam completely uncontrolled, fouling grassy areas. It may be that " amenity area " is too wide, but I think that the Minister and the Government should consider whether they should give local authorities power to define an amenity area where it would be an offence to allow your dog to foul as well as the few yards beside a pathway, which is right and proper. I think it should be extended to these areas which give such pleasure to families in the cities. I beg to move.

Lord Lyell

The noble Lord has confirmed our view that the clause includes in general statute an offence provision presently found in byelaws in many parts of Scotland as well as in the Edinburgh local Act. The amendment suggests that this offence should be extended to include all what we might call amenity areas. I must say straight away that I have much sympathy with the view put forward by the noble Lord, my noble neighbour, and I know that all responsible dog owners in the wide open spaces of the countryside or indeed in the more confined areas of the cities and the towns share the disgust which so many people feel about the indiscriminate, as we call it, fouling of public places. Indeed, this word might have a separate meaning to the noble Lord, Lord Ross, and myself on various other amenity areas. But so far as canine fouling is concerned we have to recognise that even dogs have to have their day—indeed, more than once a day; once or twice a day—and it is a question of making legislation enforceable.

How can we pass legislation which would restrict the dog's discharge of what we might call their natural function? Of course some kind of amenity areas, as the noble Lord, Lord Mackie, has explained, where there can be no doubt that it would be desirable to restrict the activities and, above all, these unpleasant activities of dogs and to make it an offence for dogs to use these amenity areas for these fouling activities. An example might well be a children's play area; or a particular area of grassland which was kept and maintained to encourage family games; or parkland where people could walk. I am also instructed that it would include areas where team games are played. I do not know whether that covers bowling greens, and the like.

On the other hand, within urban areas there are many stretches of woodland, and indeed long grass, where dogs may carry out their natural functions freely and without nuisance, but of course a balance has to be struck between the problems of enforcement and of avoiding nuisance and of course the legitimate needs of dogs. Perhaps the noble Lord would see fit to withdraw this amendment if I undertake to consider the whole of this clause again with a view perhaps to extending the offence to include such areas as children's play areas and sports and recreation grounds which were maintained by a local authority. I wonder whether he would consider that?

Lord Mackie of Benshie

I thank the Minister for that reply. Restraining the natural functions of dogs is already in the Bill. You have to restrain the natural functions on footpaths and the areas adjoining. But in making that point I am happy to accept the noble Lord's assurance that he will look at it, and I am sure that it will be much for the benefit of the younger citizens of Scotland. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 49 agreed to.

Lord Denham

I think we have probably reached a suitable point where we can break our discussion of this particular Bill for the dinner adjournment. Before I move that the House do now resume so that the intervening piece of business can be taken, I think I should tell the Committee that consideration of this particular Bill will resume at 7.35. Is the noble Lord, Lord Ross, happy about that?

Lord Ponsonby of Shulbrede

I think the noble Lord would be happier if it was 7.45.

Lord Ross of Marnock

Yes. I believe there is haggis on the menu tonight.

Lord Denham

Then 7.45 be it. I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.