§ 3.37 p.m.
§ Report received.
§ Clause 1 [Proposals for reductions in local authorities' rates]:
Lord Ross of Marnock moved Amendment No. 1:
Page 3, leave out lines 13 to 23.
§ The noble Lord said: My Lords, I should apologise, on behalf of the Government, to anyone who tries to make sense of this clause, because, quite honestly, it is a dog's dinner and I defy anyone to read it and then tell us in fairly plain language what it means. We start with the 1966 Act, Section 5, although I should warn your Lordships that it is amended by the Act of 1981. Then we go on to further amendment in this new Bill. The sooner the Government get round to giving us a consolidated measure, the sooner we shall be able to understand it.
What the Government are doing in this clause has
nothing to do with the main purpose of the Bill, which is to deal with the Stodart Report. Noble Lords will remember that, exactly a year ago, we were faced with the Government coming before us and asking for what many of us thought were very draconian powers to deal with local authorities and to put them in their place; and here they are, a year later, asking for even greater powers. Bearing in mind that they themselves produced a Green Paper last year, in which they gave voice to certain aspects of local government, it seems strange indeed that we should have this clause. Page 3 of the Green Paper reads:
local government has traditionally enjoyed a degree of discretion about the amount of local revenue it raises and the amount of expenditure it incurs. It is desirable that authorities should be able to tailor local revenues and expenditure to the provision of a level of services".
Here the Government are saying, "You are going to do nothing of the kind in future". The Green Paper continues:
It could be argued that the Government should supplement the existing arrangements by seeking powers to take direct action where necessary to restrain public expenditure so as to protect the interests of local ratepayers".
Evidently the argument is not finished because there has been no further action on the Green Paper.
The paragraph ends:
The case for the Government taking such powers has to be judged against the very considerable constitutional and practical difficulties that would be involved".
But before the argument is finished we have a Bill which the Government hope will be an Act of Parliament before the month is over and which takes power not just to reduce the rate support grant overall or in respect of a single authority—that was the power which they took last year—but to fix what the rate will be in relation to all expenditures and bearing in mind certain categories of expenditure, and they are ordering local authorities to do that. The Government will be fixing the rate after an order has been passed. An order cannot be amended: you take it or you leave it. If a local authority do not comply within 28 days, then they will be deemed to have fixed the new rate. If anything is more likely to interfere with local authority freedom and the traditional rights of local authorities, I should like to know what it is. This is basic to local authority powers and duties at the present time.
We decided not to seek to amend this clause during the Committee stage. We opposed it but we did not seek to amend it. I should apologise for not being here during the Committee stage; it might not then have lasted quite so long. However, it gave me a little time to read the Bill and I was appalled when I came to subsections (6) and (7). Just listen to what subsection (6) says:
The Secretary of State may by order under this subsection repeal or amend any enactment (including this Act) in so far as that enactment relates to the determination, levy, or payment of a regional, general or district rate and such determination, levy or payment is affected by a determination (or deemed determination) under paragraph (b) of subsection (4) above".
That is to say, it is subject to an order approved by Parliament determining that the rate shall be what the Secretary of State fixes, and if local authorities do not comply thereafter it will be deemed to be so fixed. It is a tremendous power. If a Government want to repeal legislation, usually they have to pass an Act of
Parliament. And if they want to amend legislation they have to pass an Act of Parliament. I know that the Minister will say that we had this argument last year on Section 15 of the 1981 Act. Its phrasing is virtually the same.
§ It is interesting to note that Section 15 is not repealed by this statute. Section 15 refers to Section 1 of the 1966 Act and is therefore incorporated within the 1981 Act. So there will be a duplication of powers, one a little more extensive than the other, related to the very same thing. I do not know how the draftsmen dealt with this but they have had plenty of time to look at it. I had various other worries about Scotland's activities in Malaga and Seville to concern myself about, but I thought that some of the more perspecacious noble Lords concerned with local government would have spotted how incomplete this particular clause is. Apart from that, I raised this point last year, and I think that this is very unfair. The Government are taking powers which have never been dreamed of before and then they are covering themselves, just in case they have made a mistake somewhere or have not gone far enough, by taking a power to repeal or amend any enactment, including the very Act to which I referred a moment ago.
§ Could the Minister tell us what he has in mind? To deal with any enactment that relates to the determination, levy or payment of a regional, general or district rate is a very wide power. Further on in the Bill one discovers that duties are placed upon local authorities. Duties demand expenditures. Expenditures affect the general rate. It may well be that a local authority which takes its duties seriously and spends money will be caught by subsection (4)(b). It is amazing how wide it can be. I do not believe that we should give a power of this kind to a Secretary of State without being fully conscious of what we are doing.
§ What are the legal snags which the Government think might arise whereby they feel they have to be given this very unusual power to amend statutes? It may be argued that we do not need to worry because the Government would have to introduce an order which would have no effect until approved by a resolution of each House of Parliament. The snag, though, is that you cannot amend an order. You have to take it or leave it. So you have very restricted access to any attempt to make the Government change their mind.
§ When it comes to the Government taking such a power, we find that much of it is already there and will be duplicated by what was done in the 1981 Act, so I want to know exactly why the Government feel that this power is necessary. Would it not be far better for the Government to think about it again? They should drop this. If they had wanted this power to be extended to deemed determination of rates they could have inserted a phrase into the amendment which they made last year. This would have saved them the speech I have just delivered—in about four or five minutes. I beg to move.
§ The Earl of Mansfield
My Lords, it would be remiss of me not to commence this Report stage by welcoming the noble Lord back from the Iberian Peninsula. If I hear any cries behind me of "Haste ye back", 470 I say "Fie!", although we got through the Committee stage of the Bill in just over four hours. Nevertheless, we are glad to see the noble Lord back, and if our thoughts stray towards Colombia in four years' time, when my right honourable friend will be in the middle of her second period in office, that is a joy to come and we must wish Scotland well.
The fears which the noble Lord has expressed are slightly excessive, for the reasons to which I shall come. What subsections (6) and (7) do is enable the Secretary of State to make what I would call necessary and consequential amendments to an order under subsection (4). If I say that these are likely to be minor in nature as compared with the order under Section 4, I hope that the House will bear with me until I can illustrate it.
The power is an essential part of Clause 1. It is possible that the redetermination of a lower rate proposed by the Secretary of State first of all and then approved by the House of Commons could entail technical problems for the authority or authorities concerned—and I emphasise that. For instance, there might be variations in timetables if more than one authority in the region were involved in a redetermination of rate. The regional council and one or more district councils in the same region might redetermine rates on different dates and this might cause substantial administrative difficulties. There are precedents for seeking an enabling power to make minor and consequential amendments; most notably, that power was sought in the 1981 Act and use was made of it for 1981 and 1982. That use illustrates the kind of purpose to which the powers in subsections (6) and (7) might be put by the Secretary of State.
I can give three illustrations. First, the powers might he used to modify regulations which prescribe the last date by which a district council shall notify its rate to the regional council, which collects all rates, to provide that a redetermined rate is notified two days after redetermination. Secondly, they might be used to provide, where appropriate, that rate repayments relate to redetermined rates and not to the rate originally determined, and, thirdly, that the cost of collecting a redetermined rate is excluded from the computation of the product of the penny rate of the authority concerned, and thereby from the calculation entitlement to resources clement of rate support grant.
In order to avoid such problems, it is provided that the Secretary of State shall be able to remove as far as possible, subject to the approval of Parliament, any such difficulties that statute might contain. The powers sought in subsections (6) and (7) would allow him to do this. The purpose of these provisions is therefore to ensure that unforeseen circumstances do not prevent the smooth and sensible operation of the statute. All that will be required will be minor and consequential amendments such as were exemplified last year by the Renfrew District Council. These, I may say, were accepted by the Opposition at that time as being minor and consequential amendments.
If subsections (6) and (7) were removed, very serious difficulties could be afforded to an authority. Bearing in mind that we do have the affirmative resolution procedure in subsection (7), which adds a very proper safeguard, I hope that on reflection the noble Lord, Lord Ross of Marnock, will see that this power is not the draconian power I believe he 471 thinks it is and that it will be used simply and solely to tidy up an order which has been made in consequence of subsection (4).
§ Lord Ross of Marnock
We are grateful for that explanation by the noble Earl the Minister, although he did not reply to the point I made about Section 15 of the 1981 Act and the fact that I consider this to be an unnecessary duplication. Indeed, it might well be that under the power he has, the Secretary of State could amend Section 15 of the 1981 Act. Has the noble Earl given any thought to that particular point? My difficulty is that the Bill does not say that it will deal only with orders. It says,any enactment (including this Act)".Any legislation—it does not say anything about orders or tidying up. So the power is there. That is what I object to. This is to save the Government embarrassment in case they fix a wrong date somewhere, or in case they have made some kind of mistake—that is all. The Minister should be man enough to get up and admit it.
I am not going to divide the House on this, but I want to point out the lengths to which the Government are prepared to go to bash local authorities without any troubles with the law falling upon their heads because they have made a mistake in what they have done. It is nice to be able to make a mistake and then say, "It is all right, we will amend the law", and then say, "We are doing it for the good of the local authorities and not for the good of the Government". Having heard, and taking it for what it is worth, the explanation given by the noble Earl the Minister, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 2 [Prohibition of using sums from loans fund to offset effect of determination of new rate]:
§ 3.56 p.m.
Lord Ross of Marnock moved Amendment No. 2:
Page 3, line 42, leave out from ("determined") to ("a") in line 43.
The noble Lord said: The purpose of this amendment is to find out from the Government just exactly how local authorities are supposed to work this. What a local authority can do at the present time, if there is a gap in respect of its income from rates and the cost of providing services, is to take some sum from its loans fund to meet that difficulty. But the Government are so determined to close every loophole open to the local authorities, so that the local authorities will do what the Government want them to do, that they say that,
(1) A local authority who determine, or are deemed to have determined"—
that I do not mind—
or anticipate that they will be required to determine, a rate under Section 5(4)(b) …".
are not allowed to close the gap by means of sums advanced from their loans fund.
§ How on earth will a local authority anticipate that it will be "required to determine"? The person who will be required to determine will be the Secretary of 472 State. Are the local authorities supposed to read the Secretary of State's mind and know that he is going to take this action—this kindly action, according to the noble Earl the Minister?
Suppose they do; another thing the local authority has to anticipate is not only that the Secretary of State is going to take action but also the actual action that he is going to take. The subsection says,
a rate under Section 5(4)(b)".
That is a rate determined by the Secretary of State. So the local authority has first to determine that the Secretary of State is going to take action against it and then it has to anticipate what the Secretary of State is going to fix as the new rate. It is a bit unfair to leave the local authority in a situation of complete uncertainty when something which it may be doing carefully as a matter of financial prudence—closing the gap to ensure that its outgoings are met—is going to be attacked by the Secretary of State. How do the local authorities anticipate in this way? How can they do so?
How can it be proved by the Secretary of State that they have so anticipated? He is the only person who knows that he is going to take action, and his department, after considerable consideration, will determine the nature of the action he is going to take. Remember, it is open to the Secretary of State to determine what the new rate will be. The new rate might meet only part of the gap to a greater or lesser degree. I believe it is a bit unfair on local authorities to place them under this power. Remember, subsection (2) states that,
the local authority shall, on such opinion being intimated to them, reimburse their loans fund forthwith".
The local authority could put itself into considerable financial difficulty by doing so. Why? Because there is going to be a gap. But that gap may not be due to anticipated action by the Secretary of State to reduce the rate support grant.
§ I really want to know from the Minister of State how this is going to work. I think it is quite impossible for the Secretary of State to prove that the action taken by the local authority is in anticipation of something that the Secretary of State may or may not do, and having decided to do it, what the rate will be that he will fix. I think it is asking far too much of the local authority. I beg to move.
§ The Earl of Mansfield
My Lords, the words about which the noble Lord, Lord Ross, complains in fact stop up a loophole of which recalcitrant local authorities might otherwise avail themselves to frustrate the Secretary of State's desire to prevent them from maintaining expenditure at excessive and unreasonable levels. What would happen if these words were excised from the Bill would be that local authorities could borrow right up to the moment when a rate reduction becomes effective; they could take money out of their loans fund; they could build up funds which would allow them to maintain excessive and unreasonable expenditure at that rate, and therefore they would be in a position to frustrate the Secretary of State. The Government machine does not move at exactly lightning speed when it comes to these matters, and therefore 473 it would be perfectly possible for a local authority to do it. We have only to look over the history of the last 12 to 18 months, even at what is going on now in Scotland, to appreciate that a local authority who wanted to evade the strictures and resulting actions of the Secretary of State would find it all too easy to do so by means of this simple device. That is why the clause is drafted in the way that it is. Obviously, this is an amendment which the Government are going to resist.
If the prohibition on making use of the loans fund did not apply to the period where the authority anticipated a reduction, it would make nonsense of the action the Secretary of State might take. As I have said, the Government juggernaut moves in a fairly ponderous way, so that as soon as the Secretary of State announced his intention to embark on the formal procedures authorities would be able to take action to frustrate him. It might be that the measures eventually given their blessing by the House of Commons would have no effect whatsoever on their spending level. So the words which are the subject of the amendment are no more nor less than that, and therefore the noble Lord will understand, if he does not share, my reluctance to accept the amendment.
§ Lord Hughes
My Lords, I can understand why my noble friend wishes to take these words out. I can also understand why the noble Earl wants to keep them in. But I have grave doubts whether their inclusion will serve the purpose he has in mind. The clause talks about a local authority "determining a rate" or "being deemed to have determined a rate". Both of these are facts which are obvious. But how can you prove that an authority is anticipating something which might take place in the future? If the authority does not make it known that it is taking action in anticipation of something, I do not think the Secretary of State will be able to stop it, unless he is claiming that in addition to everything else he has taken power to read its thoughts. The Minister says "no", but how do the Government work out that an authority is anticipating something? Quite frankly, I do not care very much whether the amendment is accepted or not. I think if an authority wishes to do the sort of thing which the Government fear it might do, the inclusion of these words will not stop it doing it.
§ The Earl of Mansfield
My Lords, I have to seek the leave of the House to speak again—and I hope I may be forgiven for saying the House has been rather generous on Report stages recently—but I do not intend to make a practice of it. The noble Lord, Lord Hughes, is quite right; there is nothing that the Secretary of State or anybody else can do to stop a local authority from behaving in this way. But it would be illegal, the officials of the local authority would know that it was illegal; they would have their statutory responsibility and so might the various councillors who voted for such a measure. Therefore, Nemesis would creep up in the end, and that, of course, is something which all properly and lawfully constituted local authorities have regard to when they consider their actions.
§ Lord Hughes
My Lords, with the leave of the House, and while I agree with the Minister that it is undesirable 474 that we should seek to depart from the rules, I would say this. The local authority could only be proved to be acting illegally if somebody else proved that it had anticipated something, and I am suggesting that such proof will be almost impossible to obtain.
§ Lord Ross of Marnock
My Lords, I think I am entitled to speak again, but I will ask leave, just in case.
§ Lord Ross of Marnock
My Lords, I thought so. It is great that I still have some rights left. Local authorities have not many rights left. My noble friend should read this. No one is required to prove that the local authority have anticipated the evil intent of the Secretary of State. Subsection (2) says: "If the Secretary of State is of the opinion that subsection (1) … has been contravened". It is just the opinion of the Secretary of State. What could be worse than that? What could be more tyrannical or dictatorial than that? It may well be a completely prudent local authority anticipating only that there is going to be a gap between what is produced by rates and what they have to spend, offsetting that by use of their loans fund, quite prudently. But they are now going to be in the position that if they do that, even for the best of purposes, it is going to be construed by the Secretary of State as anticipating that he was going to take action against them.
The kind of thing that this noble Chamber prides itself on is examining legislation. I hope they are satisfied with the kind of legislation Scotland is getting from here. If there were a Scottish Assembly this power would never be given to a Secretary of State: that if he is of the opinion that somebody has done something, that is all that matters. The question of proof does not arise. The party opposite is making it as easy as possible for this present Government to bash the local authorities. Remember that only a handful of local authorities in Scotland have been able to keep within the cash limits laid down by the Government. It shows that the cash limits themselves are nonsense. The matter turns on that basis, consideration of unreasonableness and excessive expenditures and the fact that the rates are high. Everybody's rates are high; my rates are far too high, no matter how low they are. At least I realise that the standard of the rate is determined by the Government. The Government decide what is reckonable expenditure in aggregate for the whole of the Scottish local authorities.
So they cut the aggregate. There is nothing obvious to the public, but they cut the aggregate and that itself reduces the amount that the Government pay in grant. But then the proportion that they pay in grant is determined by the Government. They reduce that, and that leaves a greater expenditure to be met from the rates by the local authorities. It has nothing to do with the local authorities; it has everything to do with the Government. It is the Government who have forced rates up in local authorities throughout Scotland, and then they come along and say, "Ah, but your expenditure is excessive, so we shall cut your grant". 475 They have the power to cut the grant of a single authority; they have the power to cut the grant of all the authorities.
Local government has been completely undermined, and here it is being still further undermined by this power for the Secretary of State to take action on just the basis of his opinion. To my mind it is not good enough, but I know that most Scots are probably more interested in what is happening within a few miles of where I live and where I would have liked to be today—around Troon—and so I will not divide the House on this matter of importance. I beg leave to withdraw the amendment, which has been so unreasonably and unsatisfactorily answered by the Government.
§ Amendment, by leave, withdrawn.
§ 4.11 p.m.
Lord Ross of Marnock moved Amendment No. 3:
Page 4, line 2, leave out ("in any case").
§ The noble Lord said: My Lords, this is a very important amendment because the Government are going to accept it. It asks them to leave out three words, "in any case" as those words do not mean a thing; they are just otiose. I beg to move.
§ The Earl of Mansfield
My Lords, I think that if the noble Lord considers the subsection with a little more care he will see that in fact the words are not only desirable but will enable the Secretary of State to have flexibility which would otherwise be denied to him, and a flexibility which could react in favour of individual local authorities. The provision is drafted in terms which make it clear that, should the Secretary of State consider it appropriate to permit an authority to use money from the loans fund to offset the effect of a rate reduction, he would exercise that permission having regard to the circumstances of the individual authority concerned. This is consistent with the provisions in Clause 1 to which Clause 2 relates.
Proposals for reductions in rates or grants must be preceded by a very careful assessment by the Secretary of State of the circumstances of the individual authority concerned. It is also necessary for this provision to be consistent with Section 18(1) of the 1981 Act which makes similar provision for grant reductions. The effect of the amendment would be to widen the application of the proviso to Clause 2(1) so as to enable offsetting to be made generally to all local authorities. This would be inconsistent with the provision to which it relates with Clause 1 and with Section 5 of the 1966 Act, which all relate to particular cases. It is not the policy of this Government to ask Parliament for a power in wider terms than are required. So there is point in drafting the subsection in this way and perhaps, on reflection, the noble Lord would agree.
§ Lord Ross of Marnock
No, my Lords, I would not agree. The fact is that the words do not mean anything at all and do not extend, as the noble Earl suggests, this particular power. However, this is the Report stage and it is no time to argue the matter out. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.476
§ Clause 3 [Redetermination of estimated aggregate amount of rate support grants]:
Lord Ross of Marnock moved Amendment No. 4:
Page 4, line 20, after ("State") insert ("after consultation with the representatives of the Scottish Local Authorities").
§ The noble Lord said: My Lords, we come now to Clause 3 which gives yet another power to the Secretary of State. At present, the rate support grant is drawn up usually in about November or December—that is when the argument begins and it goes on over a long period and then the Government make their determinations. We must remember that the Government are the last word: they decide what is reckonable expenditure, and reckonable expenditure is only that expenditure on which grant is paid; they determine the rate of the grant, and during recent years it has been going down; and recently, or up until this year, the Government have also been laying down guidelines in respect of what should be paid as regards increases in prices and salaries.
§ As regards anything beyond that, it has been their practice, usually at about the same time—the end of the financial year when they have seen how things have been going—to produce a supplementary order, an increase order, recompensing the local authorities for expenditures above the limits that have been laid down. Mind you, within that the Government can do a bit of manipulating and they have done so in the past. If the reckonable increase that should be rated for grant has been so much, they can reduce it, and they have reduced it in the past.
§ However, now we are entering a new system. What has happened in the past is that the Government have only had to introduce increase orders. But I think that the Minister of State has made it perfectly clear that the purpose of this clause is that they will introduce orders decreasing the rate support grant, as well as increasing it. A new system is produced whereby, instead of dealing with sums of money which are to be estimated, they are going to make the rate support grant sums of money towards which the local authorities have to work and they are not going to be increased unless there is a change in interest rates that creates such necessary fluctuation.
But they have taken the power here at any time during the financial year, for whatever reason they like, to introduce an order reducing the rate support grant in aggregate—that is, for all the authorities. I am suggesting that it should be done:
after consultation with the representatives of the Scottish Local Authorities".
I know that the Minister will say, "We will do that anyway". I am not prepared to accept that they will do it anyway. They do not need to do it according to this piece of legislation, and so I am suggesting that they should insert this provision. It is not very much, because the Government will consult and then do what they like. That is what happens at present when they negotiate the rate support grant, be it with the Scottish local authorities or any other local authorities. But at least it would be some satisfaction to know that by statute they have to consult representatives of the local authorities before they make this possible change. I beg to move.
§ The Earl of Mansfield
My Lords, the noble Lord's amendment is unnecessary, but I hasten to add, not otiose. I entirely agree that there is a need for consultation with the convention before rate support grant is redetermined initially. The words:under section 2(2) of the Actin the new Section 4 (1) of the 1976 Act proposed in Clause 3, together with the minor and consequential amendments to Sections 2 and 3 of the Act proposed in paragraphs 5 and 6(a) of Schedule 3, will apply the provisions which require the Secretary of State to consult the convention before grant is determined initially to any redetermination of grant in terms of the 1966 Act amended as proposed in the Bill. What I have said sounds complicated but it will be all right, I hope, when the noble Lord looks at the Official Report. I hope that with that assurance he will see fit to withdraw his amendment.
§ Lord Ross of Marnock
My Lords, I do not like it when the Minister tells me that it will be all right when I look at the Official Report; that means that he is racing up to the Official Report to see that it is going to be all right. But I do not doubt him. The information which we have been getting from COSLA—the Convention of Scottish Local Authorities—is that these so-called consultations have tended not to be consultations at all; the local authorities are "told" by the Secretary of State. That is not my interpretation of consultation. However, there is no reason for me to disbelieve the Minister of State, in respect of the further amendments and the references back to the 1966 Act, as amended by the 1981 Act, and any other Act anyone cares to mention, that the consultations are already explicitly written in there and so, implicitly, they are already here in this particular subsection. Therefore, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 6 [Effect of specific power or duty to incur expenditure at one tier of local government on exercise of general such power at different tier]:
§ 4.21 p.m.
Lord Ross of Marnock moved Amendment No. 5:
Page 6, line 12, leave out ("are") and insert ("is").
The noble Lord said: We turn from one matter of importance to another. This could take me about three hours in the Scottish Grand Committee and, with a Minister like the noble Earl, it could probably take five hours! Noble Lords should not forget that I used to be a schoolmaster. On page 6, line 12, what do we read? We read:
Where one of any two local authorities are a regional council".
I do not know what the reaction of most noble Lords "is" or "are" to that.
§ Lord Ross of Marnock
My Lords, we have this strange business that the local authority is counted as a plural body, and the Government, having seen the amendment tabled, hurriedly raced in to change 478 it in certain other clauses in the Bill. Where they had sensibly put "is", they have changed it to "are". I want to change it to "is". Whether they think that "are" will bolster them, I do not know—I hope not. If they have done so, perhaps I could tell them that they have not done all their homework correctly. For instance, at line 33 on page 22 of the Bill, it says:as regards any transfer in respect of which the first local authority is a regional council".That really ought to be "are", if we are to follow the Government's logic.
§ Lord Ross of Marnock
My Lords, it has not been accepted. My goodness! This is one of the changes that there are to make. Is it not incredible? They are not accepting it. They are insisting on "are" here and they are putting "are" in the other one. Surely not; is it not crazy?
I think that the purport of my amendment has already been pointed out—that is, that it is common sense in this particular case, when you are talking about one of something, to say "is" and not to say "are". I beg to move, and await, expectantly, acceptance.
§ Lord Drumalbyn
My Lords, is my noble friend aware that there is an old song which starts:I'll sing you one-O",the last line of which is:One is one and only one, and ever more shall be so"?That is a celebrated precedent, and it is not "one 'are' one".
§ The Earl of Mansfield
My Lords, the noble Lord, Lord Ross, reminded us of his teaching background. I must say, I have always wondered where Giles was moved to get Old Chalky from, but I must speculate about that.
§ The Earl of Mansfield
My Lords, I certainly would not want to mix it, if I may use such an expression, with the noble Lord on grammatical terms. But having viewed, with some alarm, the noble Lord's amendment and consulted, among others, the draftsman, I am assured that the convention in statute is that the term "local authority" should be predicated in the plural. In fact, later amendments will ensure that consistency of approach is adopted throughout the Bill. Thus, the use of the verb "are" in line 12 reflects this general doctrine and is, I think, consistent with the expression—although it occasionally looks rather odd, as in, for example:the other local authority are",in line 18 of the same clause. But, although in certain instances it tends to jar, I gather that this is the convention, and a local authority, like the Government, must be predicated in the plural.
One only has to look at the Minutes, containing various Motions and debates which are set down for the future, to see that, in fact, Her Majesty's Govern- 479 ment are already predicated in the plural too. So it is consistent. Nevertheless, I am grateful, as always, to the noble Lord for sharpening us up on this. I hope that he will agree the line, so far as "are" is concerned, and withdraw his amendment.
§ Lord Hughes
My Lords, I should not like this important point to pass without some support being given to my noble friend on the matter, even although he has, of course, the invaluable support of the noble Lord, Lord Drumalbyn, in spite of the fact that he declined to do what he was asked to do—to sing it. But I do not disagree, although I do not like the convention where "authority" is regarded as being plural and takes "are" instead of "is".
However, in this case the reference is not to the "authority"; the reference is to the word "one", and "one" is not plural. It never has been and not even this Government can make "one" plural. So it is "where one … is". My noble friend, therefore, is perfectly correct. It does not in any way invalidate the Minister's later amendments to substitute the word "are" for the word "is", because later on the reference is entirely to the word "authority"—"where an authority are". But in this case, I repeat, it is "where one … is". Even this Government must admit that to talk about "where one … are" is absolute rubbish.
§ Lord George-Brown
My Lords, I also should like to support my noble friend Lord Ross and the other Members on the Opposition Front Bench. I should like to draw the attention of the noble Earl, Lord Mansfield—with that great Scottish title of his—to the fact that there are many illogicalities in our system. When one refers to "the Government are", one is referring to the Members of the Government; one is referring to a collective body. When one refers to "the Government", one refers to the fact that the Government "is" determined. Here we are referring to "a local authority"—not a collection of people, not a collection of members, but a local authority acting collectively.
I entirely agree with the noble Lord, Lord Hughes. If it is one of two, it has to be "is", if it is to fit our common language. There may be other circumstances in which it is appropriate to refer to "the Government are", if you are talking about a collection of people, and I do not think that there are very many of those. Perhaps the convention has become too wide over the years. Sometimes it is not a bad thing to look at it. But when you state it so specifically and so clearly as "where one of" two, then logically, grammatically and legally there can be no other word than "is".
We can look at all the subsequent amendments when we reach them to see whether "are" or "is" fits the particular context. I am no ex-schoolmaster. I am just a rather twisted product of other schoolmasters. When one is talking of one of two things, with great respect to the noble Earl, Lord Mansfield, his draftsmen and his civil servants sitting up there on the back box and grinning down upon us now, one of two has to be "is". It cannot be anything else.
May I suggest that we behave sensibly here and put in "is". Forget what the noble Earl says is a 480 convention. Maybe the convention has been stupidly widened; I do not know. I repeat, there are occasions when you are talking about the Government and when you are clearly talking about a collection of people when it is sensible to say "are", but you cannot possibly say "one of two are"; it has to be "is". May I ask the noble Earl's advisers up there to rush him down a little piece of paper quickly saying, "My dear Minister, you will lose nothing by accepting this amendment. We are also graduates. We also have studied English. We also know that one of two has to be "is".
If need be I shall talk a little longer while they get that piece of paper down to the Minister, because it is absolutely absurd to say that "one of two are". I would have got nought out of a hundred at West Square Central School had I answered a paper in those terms. So may I ask the Minister please to forget the convention. Forget the bit of paper you have in front of you. Just do the obviously sensible thing. One of two can only be "is"; it cannot possibly be anything else. When we get to what the Government is, when we get to what the local authorities are in other circumstances, we will look at the context. But the context of this has to be "any one of two is" the local authority.
I beg the Minister please not to drag this matter out. I can go on speaking forever on the subject, if need be. My noble friend Lord Ross said that he could do so for three hours, and, given this Minister, he could do it for five. Having listened to this Minister I think he is probably right in his boast. If he drags in the middle I will help him out. But please—to the advisers of the Minister, at whom I am looking at the moment—just send him down a piece of paper saying, "Don't be so damned silly". Any one of two can only be "is". It cannot be any other way.
§ 4.33 p.m.
§ Lord Wilson of Langside
My Lords, lest the Minister is not prepared to accept the view of the noble Lord, Lord George-Brown, may I just say that as one by no means unfamiliar with the idiosyncracies of parliamentary draftsmen, and in particular Scottish parliamentary draftsmen, I find it a little startling that the Minister should suggest that any one of those is in this context a greater authority than the noble Lord, Lord Ross of Marnock. Surely with that in mind the Minister is bound to give way.
§ Lord Stodart of Leaston
My Lords, perhaps it is a good thing that we are having this protracted discussion because, as the noble Lord, Lord Ross, has said, it at least gives this noble House a clear picture of how the Scottish Grand Committee has always conducted itself. I am quite certain that the noble Lord, Lord Ross, will think of an old friend of ours, one Mr. Willis, who must be thinking of how he would have spoken for at least two hours in the Scottish Grand Committee on this particular subject.
When I read this amendment and then read the text, I felt that the grammar of the actual text in the Bill jarred on me. I do not know whether my noble friend has had a piece of paper, with which I used to be very familiar, at the bottom of which is written the word "resist", but if he has not I do not really 481 think that the Bill is going to suffer very much if we put in "is" instead of "are". May I add my voice to those other founts of eloquence on this subject, particularly the noble Lord, Lord George-Brown, and hope that the Minister will accept this amendment.
§ Lord Howie of Troon
My Lords, before we come to a conclusion on this matter I rise and will speak with the maximum of brevity, because unfortunately I arrived too late to hear my noble friend Lord Ross of Marnock—a source of deep regret to me. Unfortunately, since this is the Report stage he will not be able to rise and repeat his speech for my benefit. I shall look at it in Hansard tomorrow with the greatest possible care. He must be right—though I do not know what he said. He always is right. From what I have heard of this debate it is quite clear that he is right on this occasion.
I should like to add a further nuance. I am speaking not as a Scot at this moment, whatever you might imagine, and I have no experience of the Scottish Grand Committee, something for which I have always been and to my dying day shall continue to be grateful. It is an excellent and elegant body but I am glad I was never in it. I am speaking now as a journalist. Although parliamentary Bills are not written by journalists they are written in the English language. The English language is a continually evolving body. In the evolution of that body journalists play their part. I would draw the Minister's attention to the fact that nowadays it is customary for even the Government to be regarded as singular—not to be regarded as my old, trusted and valued friend Lord George-Brown mentioned a minute ago.
§ Lord Howie of Troon
I mean "old" in the sense of long-standing; and long may he continue to stand, in all respects. What I have in mind is that usage now has got past the stage where the Government, or a local authority, or any body, a committee, for instance, would be regarded as a group of individuals and therefore would be entitled to "are". Nowadays the usage in journalistic circles and literary circles is to regard the Government, or the committee, or the local government, or anything of that sort, as a body, and therefore singular. Whether we are talking about one, or talking about the Government, we would use the singular sense. In this case my noble friend Lord Ross of Marnock must be right in whatever it was he said earlier.
The Government should surely yield because it is the right thing to do, and for another reason. The Government, on a number of occasions and on a number of bodies of legislation which it has brought before us, has been, for good or ill, urged to yield something. Only the other day the noble Earl, Lord De La Warr, urged the Government to yield on a small point in the Employment Bill, because he thought that yielding was sometimes a good thing for Governments to do. Here is an occasion where the Government might not only do a good thing by yielding but might actually be right at the same time. Surely that must be sufficiently tempting for the noble Earl.
§ Lord McCluskey
My Lords, I have not had the 482 privilege of attending your Lordships' House for many months, but I am so moved by the importance of this occasion that I feel I must rise, and I hope the Minister "are" listening to what I am saying. I want to caution him against accepting this too readily, because with a name beginning with the letters "Mans" the next move will be to substitute the word "Men" in his name, and perhaps that would be unfortunate.
As I look at the wording here, if he is deciding to stick with the word "are", then ought he not to change the word "other" to "others" in the same line so as to make the district council plural as well? My final point is that in the Interpretation Act "the singular shall include the plural" and "the plural shall include the singular", so it may be that the Minister could happily give us our "is" and rest on the Interpretation Act if he runs into any difficulties in the courts in future.
§ The Earl of Perth
My Lords, on all sides—from the Government Benches, the Cross Benches, the Opposition, and I need not detail others—support has come for the noble Lord, Lord Ross, in this matter. I was brought up to believe that one or two "is something" rather than "are", so I hope the noble Earl will accept the amendment.
§ The Earl of Mansfield
My Lords, it is only your Lordships' House that can spend 20 minutes on a matter which is so totally unimportant as this.
§ The Earl of Mansfield
I enjoyed the remarks of the noble Lord, Lord George-Brown, my Lords, patronising as they were, and of course my title is a matter for me; it is not double-barrelled, nor does it have a hyphen. I will not waste any more time, except to say I hope that, if the worst ever happens and we have a Government of a different persuasion, with the noble and learned Lord, Lord McCluskey, as Lord Advocate, so that he is responsible for the drafting of Scottish Bills, he will have a little more loyalty to his draftsmen than he has shown on this occasion. Having said that, I do not think I can say other than that rules are made to be broken and I think they should be broken in this particular case, and accordingly I am happy to accept the amendment.
§ Lord Ross of Marnock
That is world-shattering, my Lords—such a noise, like Scotland's second goal against Russia. It still rings in my ears. If only the referee had allowed the other two minutes of extra time we would have scored a third. I shall not press the Minister on the other matters, though I must apologise to the House because, having tabled this simple amendment, I was then faced with the Government, to save their own face, putting down another four amendments to get consistency. It is the old business of everybody being out of step but our Jock, so we change everybody else so that Jock can be in step. I was about to say that this was a case that called for the Lord Advocate. We used to resort to that—calling for the Lord Advocate 483 —in the Scottish Grand Committee, only to be sorry we did because we never found that legal help was any real help to us. I am grateful to the Minister for accepting the amendment and I hope he will forget his other four amendments because they just do not make sense either.
On Question, amendment agreed to.
§ Clause 11 [Islands or district council's functions in relation to tourism]:
§ 4.43 p.m.
The Earl of Mansfield moved Amendment No. 6:
Page 10, line 23, after ("After") insert ("the said").
§ The noble Earl said: My Lords, this is a technical dafting amendment which has no effect on the provisions of the Bill. It makes clear that the reference to Section 90 in subsection (2) of Clause 11 is to Section 90 of the Local Government (Scotland) Act 1973. This is achieved by referring back to the reference to Section 90 in subsection (1) of Clause 11.
§ On Question, amendment agreed to.
§ Clause 17 [Power of regional council to contribute financially towards the provision of recreational, sporting, cultural and social facilities and activities]:
Lord Jenkins of Putney moved Amendment No. 7:
Page 14, line 7, leave out from ("council") to ("by") in line 11 and insert (",as regards recreational, sporting, cultural or social facilities or activities—
§ The noble Lord said: My Lords, I have some trepidation in intervening in Scottish matters, especially as a precedent has just been created whereby it seems almost certain that, as a result of what I am about to say, the amendment will be carried. Therefore it is not a case, as often happens, of moving an amendment simply for discussion and then withdrawing it; in Scottish affairs it is clear that when one moves an amendment the Government are immediately so impressed with one's argument that they may accept it. I must choose my words with care in the hope that that precedent will be followed on this occasion.
§ Although I am unqualified to pose in any way as an expert on Scottish matters, let alone in such recherché matters as Scottish local government affairs, I have a great admiration and long-standing friendship with the Scottish theatre. A number of friends of mine, knowing of my interest in the theatre, have been in touch with meéas they have with my noble friends on the Front Bench, who have been kind enough to agree that I might move the amendment—concerning their worry that the local government changes proposed in the Bill will have a deleterious effect on the amount of public support they get. The Federation of Scottish Theatre are among those who have written to us saying that the position at present is that they get, they say—and I have every reason to believe it is true—their main local authority financial support from the regions. Many of the buildings are owned by the district councils, who 484 then lease them to theatre trusts. An example is provided in the case of the Royal Lyceum Theatre Company in Edinburgh, but it is a situation of general application.
§ Their concern is that, as a result of these changes, they may no longer get from district authorities the same generous—or fairly generous support, at any rate—they have received from regional authorities. It may be that in response to that feeling the Government have themselves included Clause 17 because that gives power, as no doubt the Minister will tell us, to regional councils to contribute financially towards the provision of recreational, sporting, cultural and social facilties and activities. The regional council under the Bill therefore, fortunately, has the power to continue to act in the beneficent fashion in which it has acted in the past, in spite of the changed circumstances which will be brought about by the Bill.
§ What my friends in Scotland would like—and it would be the effect of the amendment—is that, so far as a local authority proposal, a district council proposal, is concerned, the regional council, the other body, would be obliged to make a contribution, rather than merely be enabled to do so. It would be obligatory. So if the district council concerned were to make a proposal for assistance to a regional authority, that authority would be required to give a positive response. These ideas will be familiar to noble Lords. They take place in other areas; there is an obligation on local authorities to make a contribution to library areas and so on, so there is nothing very startling in what is proposed.
One objection which might be advanced is that it is not a very onerous obligation; a regional council who wanted not to contribute much would be able to get out of the obligation by making a purely token subscription, and therefore one is not placing a great burden on the regional council. However, it would draw a distinction between a request coming from a district council—in other words, a request coming from an authority—and a request coming from anywhere else. Thus, instead of reading, as the clause does at present:
A regional council may, as regards recreational, sporting, cultural or social facilities or activities, contribute"—
it would say:
A regional council … shall contribute such sums as they shall decide … towards expenses incurred, or to be incurred, by a district council"—
and it would go on to say that it "may" contribute in all other respects. There would be a slight distinction, therefore, between a request coming to the regional authority from the district council. The clause would state that, in respect of such a request, the authority "shall" respond; in respect of all other requests it "may" respond.
§ As I said a few moments ago, the difference is not perhaps as large as might be seen, because the regional authority could say, "We will give you a pound". I think it very unlikely that it would do that. But the amendment would provide a sense of obligation, and I believe that my friends in the Scottish theatre would feel a little more secure if the Government were able to agree to this fairly minor change, so as very slightly to increase the sense of obligation which local authorities would feel was upon them to maintain, continue and, when circumstances permit, perhaps even to enlarge, 485 their financial support to the theatre in Scotland. I beg to move.
§ Lord Hughes
My Lords, I should like to support my noble friend Lord Jenkins of Putney in this matter. In doing so, I am aware of the fact that the amendment would make only a marginal difference; it would be a difference of emphasis, and nothing else. At the moment support for the theatre and other activities mentioned in the clause is provided by the regional authorities on a wholly voluntary basis. They are not under any duty to support theatres. They have the opportunity to do so, and the district councils have the same opportunity.
I have a letter from the Citizens' Theatre in Glasgow, which has relied fairly heavily on the support of Strathclyde Regional Council. There is a fear that the change from the region to the district might lessen the regional council's enthusiasm for continuing such support. Quite frankly, I do not think that it will. I very much doubt whether the Strathclyde Regional Council's view of the importance of the Citizen's Theatre will in any way be altered by the change that is proposed in the Bill. Nevertheless there are fears in this respect, and it may be that those who fear the change are more justified in having fears than I am in discounting them. The amendment will not change what is proposed in the Bill, other than by way of emphasising that the authority,shall contribute such sums as they shall decide …".So I hope that the Minister will consider that the amendment can be accepted.
I do not know whether my noble friend Lord Jenkins of Putney can read the future, or whether before it took place he had in his mind the debate that we had a few minutes ago on the previous amendment. It may well be that in a bid for the Minister's support my noble friend accepts wholeheartedly that an authority is plural, since the amendment refers to what "they" may do, not what "it" may do. So I hope that this leaning towards the Government's side in the grammatical battle that we have had—and which we shall have again later—will mean that the Minister will be inclined to accept the amendment.
§ Lord Stodart of Leaston
My Lords, I hope that I am not going to embarrass my noble friend; for all I know, he might propose to accept the amendment. I am not as certain that the amendment is as meaningless or as ineffective as noble Lords opposite have suggested. Clearly, until the passing of the Bill, the function relating to leisure and recreation is a concurrent one for which both regions and districts have responsibility. I certainly do not propose to go to the stake in favour of the recommendations made in the report of my committee, but undoubtedly the burden of the report is that the responsibility, or—if I may adopt the term used by the noble Lord, Lord Jenkins of Putney—the obligation, for leisure and recreation matters should pass to the district.
We have also stated quite specifically that the region has a permissive power to contribute. I may be quite wrong—and no doubt, if he were here, the former Solicitor-General would correct me, if necessary—but it seems to me that if there is placed upon the region a mandatory obligation, concurrency would 486 therefore still exist, if to a lesser degree, and, speaking personally, that is one thing that I would wish to avoid.
§ 4.56 p.m.
§ The Earl of Mansfield
My Lords, I am of course aware that fears have been expressed, in particular by theatres and theatre trusts, as to the financial future under the new arrangements. It was for that reason that Clause 17, which empowers regional councils to contribute to the provision or maintenance of leisure and recreation facilities or activities, has been drawn as widely as it has been drawn. In another place there was criticism of the original provision, and in consequence of that there is now no limitation on the powers to contribute, provided of course that the council wishes to do so.
As I have said, I am aware that there is concern lest facilities and activities which previously have depended on regional aid should in future be deprived of the aid and as a result get into financial difficulties. I can appreciate the motivation behind the desire of the noble Lord, Lord Jenkins of Putney, to make it obligatory for regional councils to contribute, though I must point out to him that his amendment relates only to aid to district councils and not to other bodies.
As I think the noble Lord would realise, his amendment, if accepted, would not necessarily elicit any tangible financial assistance from regional councils. A regional council could solemnly determine a nil contribution, and in such instance the effect would be no different from that which would result from the Bill as at present drafted, under which it is for regional councils to determine what aid they give to others, whether they be district councils, as the noble Lord wishes, or voluntary bodies, or any other person. That can include, for instance, such bodies as the Scottish National Orchestra.
So I have to ask myself whether the amendment would achieve more than the Bill already provides. I have to answer, no, because the regional councils already have complete discretion. It is for them to decide what they want to do, and what they think their ratepayers would wish them to do. The attempt by the route of the amendment to make regional councils undertake a burden which they are perfectly free to undertake is to be slightly criticised because, as I have said, the discretion is complete and it is a matter for the regional councils. Therefore I am driven to the conclusion that the amendment would not improve the Bill. As my noble friend Lord Stodart of Leaston has hinted, I think that it would be mildly otiose because it would detract from the way in which we have reshaped the different jurisdictions and responsibilities of the regional and district authorities.
I therefore hope that this debate this afternoon will reassure, not only noble Lords in this House and the noble Lord, Lord Jenkins, in particular, but, perhaps just as important, all those bodies in Scotland which, quite naturally, are very anxious as to their financial future and feel that this disturbance of the practices and organisation of local government may affect them adversely. As I say, I hope that this debate will reassure the noble Lord, and that he will withdraw his amendment.
§ Lord Ross of Marnock
My Lords, I think we are grateful to my noble friend Lord Jenkins of Putney for this amendment, mainly because it gives us an opportunity of once again expressing the fears which have been relayed to us by certain authorities. I can think of the Lyceum Theatre Company in Edinburgh, the Citizen Theatre Company in Glasgow and the Borderline in Irvine, not to mention the others of more Scottish context and support, like the Scottish Orchestra, the Scottish Ballet and Scottish Opera. I think myself that probably the Government have gone as far as they can. Of course, the trouble is that the obligation rests upon one authority now, and it is just open to the other authority to contribute. The real danger at the present time, as I see it, is that, with local authorities being pressed by the Government in relation to their overall expenditure, too often the kind of expenditure which is sacrificed as a result of that pressure is money spent on something which may be of majority interest to some of us but which really is a minority interest. The cultural aspects of life are those which are shed first, and that, to my mind, is the real danger.
After all, we have the Government taking new powers to ensure that the local authority will not spend over a certain amount of money. Who is to say that, they not having been given the responsibility in respect of these activities—cultural, sporting, recreational and social facilities—the local authority will not be pressed by the Government to say that what they are spending there is unreasonable? The present local government financial atmosphere is the greatest thing shedding a gloom upon us so far as the future of many of these organisations are concerned.
But I trust that there will be recognition of the contribution that these organisations make, far beyond their district. If they were dependent upon the district they just would not be there. They depend upon people from the region, and even upon people from outside the region in which they are based. There are people from well wide of the Strathclyde Region or the Glasgow District who make visits to the Citizen Theatre in Glasgow. It may well be that the local authorities from which these people come have felt an obligation to contribute and to keep the thing alive. In respect of many other features not connected with local authority I know how much we are dependent on the support of local authorities not in the immediate area. I am thinking in this respect of the National Trust for Scotland, where, at a time like this, I should not like to see the interest of the local authorities disappearing.
I do not know that this amendment is any better than the ones we have tried before, but at least it gives us the opportunity to express the hope that regions as well as districts will recognise the need and the justification that there is for their further contributing to certain of these organisations which have done so much and struggled so much against financial adversity in keeping alive. I do not know what my noble friend intends to do. It may well be that he will decide, on balance, to withdraw his amendment; but that means, of course, inevitably, that we are left to the generosity of the regions in the future—and, indeed, in the first instance, to the acceptance of their obligations, their 488 duties, by the districts, and to their giving adequate support to these institutions.
§ Lord Jenkins of Putney
My Lords, I am most gratful for what my noble friend has said. Perhaps it would not be out of order if I were to point out to the noble Earl the Minister that the difference drawn in the amendment between the district authority and all other organisations was indeed quite deliberate, and was in fact the main purpose of the amendment. On the other hand, what is proposed here is in no way a precept. The district council has no power to demand from the regional authority any particular sum. The local authority, as the noble Earl the the Minister quite correctly points out, could make a token contribution of £l, and that would be that. What was sought to be done here was to emphasise the importance of this type of grant in cultural activities, theatres, orchestras and so forth, so as to give the regional authority a greater sense of obligation in respect to a request for a grant coming from a district council than it would feel to the generality of such requests.
However, in view of what the noble Earl the Minister has said, in view also of what my noble friends have said from the Front Bench, and in the hope that what has been said here this afternoon will give assurance outside this House—it is not so important to assure me; it is, I think, very important to assure people who are engaged in the arts in Scotland—and in the hope that this assurance will be no mere figment but one of real substance, I ask the leave of your Lordships to withdraw this amendment.
§ Amendment, by leave, withdrawn.
§ Clause 22 [Re-allocation of responsibility for the enforcement of certain provisions of the Food and Drugs (Scotland) Act 1956]:
§ 5.7 p.m.
§ The noble Lord said: My Lords, I beg to move the amendment standing in my name on the Marshalled List, and perhaps I may be allowed to preface what I have to say by a few introductory words, because I am not ceratin that if I did not do so some of those present today would understand what I was talking about. This amendment concerns the distribution of functions between regions and districts in Scotland. It seeks to prevent change where change is neither demonstrably necessary nor demonstrably beneficial. It seeks to prevent the taking away of functions from the nine regions and handing them over to the 53 districts, as recommended by the Stodart Committee in paragraphs 157 to 169 of their otherwise excellent report—a recommendation which the Government have accepted and incorporated in the Bill in Clause 22.
§ The clause was debated in Committee in another place, and a Motion to leave it out entirely was defeated by eight votes to five—rather fewer than the numbers present in your Lordships' Chamber at the present time. This amendment was moved in Committee here 489 by my noble friend Lord Campbell of Croy, who regrets he cannot be with us today to support me. There was a 45-minute debate—a short debate in relation to the nature of the subject. Personally, I regretted the asbence of the noble Lord, Lord Ross of Marnock, who had shown on Second Reading an inclination to be against the proposal in the Bill. I am glad to see him here today, and I hasten to add that I would not for the world (or for the World Cup, if it conies to that) blame him in any way for missing the Committee stage, particularly as I missed it myself.
§ I have no interest to declare, though I have been for some years an honourary vice-president of the Institute of Trading Standards Administration, of which the Society of Scottish Directors of Consumer Protection is a component. I think that is not particularly well-known south of the Border. The reorganisation of local government in Scotland under the Act of 1973 necessitated an allocation of functions as between the nine new regions and the 53 new districts. Section 158 of the Act divided the functions of local authorities under the Food and Drugs (Scotland) Act, 1956, the principal Act dealing with inspection and enforcement in the field of food.
§ Under the 1973 Act, functions relating to composition, labelling and advertising of food were allocated to the regions. Functions relating to food hygiene at local level were allocated to the 53 districts. In other words, misdescription and adulteration came under the regions; contamination of food rendering it unfit for human consumption and dangerous to health came under the districts. In the Islands areas, the question of dividing responsibilities did not arise, as the authorities were all-purpose.
Clause 22 of the Bill proposes to transfer the composition, labelling and advertising functions from the regions to the districts so that the provisions of the Food and Drugs Act would all, or nearly all, be administered at one level—that is, by the local authority departments of health and hygiene. This is what the Stodart Committee recommended, saying in paragraph 165 of their report:
We see considerable merit in concentrating as far as possible all functions under the 1956 Act on one authority
They also put forward two other reasons which I venture to summarise as, first, the difficulties of demarcation of responsibilities which, in some cases (they use the poetic word) "intertwine"; and, second and much less convincingly, they said in Paragraph 164:
it is arguable that, because of the public health implications of, in particular, sections 1 and 2 of the Act, they lend themselves to more effective enforcement by district councils in view of their other responsibilities for matters to do with health.
Your Lordships will note that the word used is "arguable". The committee did not state that as a self-evident fact or even as the opinion of the committee but as an arguable point of view.
I am bound to point out that these supposed advantages of concentrating all functions under the Food and Drugs Act on one authority must have been weighed in the balance against the division of functions that was made in 1973. The outcome then was the decision in favour of a division of functions for the very practical reasons given at the time by my right honourable friend Mr. Buchanan-Smith, now Minister of State at the Department of Agriculture, Fisheries
and Food. Why was this change of attitude made? Is it that arrangements have not worked? The Stodart Committee said in Paragraph 166:
The Scottish Home and Health Department did not make any major criticisms of the existing arrangements".
Is it wise to make a major change in the existing arrangements in the absence of any major criticism? Surely, the answer must be, no. Secondly, is it that there has been widespread criticism of the working of the arrangements, whether public criticism or in the press or broadcasting, or again from the trade and manufacturing interests concerned? Again, the answer is, no.
§ The consumer organisations—and I list them—the National Consumer Council, the Scottish Consumer Council, the National Federation of Consumer Groups and also the Consumers' Association are all against the proposed change. As for the trade and manufacturing interests—the CBI, the Retail Consortium, the Food Manufacturers' Federation, the Food and Drinks Industry Council—they, too, are against the proposed change. The only bodies in favour are those who stand to gain from the change—namely, the district councils and the Scottish Institute of Environmental Health.
§ It seems as if the Government consider it a dangerous threat, which should be resisted at all costs, when industry, trade and the public share the same views as to where their interests lie; and in this case their interest lies in maintaining the status quo. We have heard of the man in Whitehall knowing best; now we have the Scottish Office knowing even better. Let me make it quite clear that I do not wish to say anything disparaging of the efficiency of the health and hygiene inspectors. I do not doubt that they could do the job being done by trading standards departments. What is in doubt is whether they could do it better and more economically—and, of course, one has to bear in mind that there will be transitional hazards. I suggest strongly that, unless it can be shown incontrovertibly that they will do it better if this clause is passed by your Lordships, there is no case for change.
§ In making the decision in 1973, the Government took into account developments which had taken place since 1956, when the Food and Drugs Act was passed—and it was largely a consolidation Act—and also tendencies which were manifest at that time. Among those developments was the marked growth in prepacked food and convenience products coupled with a tendency towards self-service in retail outlets both large and small. Under new weights and measures legislation in 1963, many products had to be sold in specified quantities. There really was a veritable revolution in the retail trade in progress at that time.
§ The counterpart of this change in the manufacturing, packing, distribution and marketing field was that more and more of the control over products, packing and labelling (including indications of quality, quantity and composition) was being conducted at factories and packing stations—in other words, the control was not truly local—rather than at retail level. Food manufacturers became more and more accustomed to seeking guidance from trading standards authorities before they launched a new product or adopted a new packing.
By the end of 1973 we were about to be confronted with a spate of regulations and directives from the EEC—for example, the recent change from net weight
of contents to average weight, measured at the factory and the packing station by the trading standards authorities' inspectors, who are able to control contents, composition and labelling during the same visits of inspection. There is no wonder that the Stodart Committee—and I quote:
took the point that the fewer the authorities involved the easier to achieve a uniform approach to food standards".
They did not follow that through by acknowledging that higher food standards mean higher health standards, providing that the higher food standards are effectively and efficiently enforced, as they are at present. The same tendency towards more concentration of effort was evident in the Trade Descriptions Act 1968.
§ I am trying to give the reasons why the decision that was reached in 1973 was reached. That trade Descriptions Act was a United Kingdom Act which prohibited misdescriptions in the course of selling any goods, including food. A major and far-reaching decisions was taken in regard to enforcement. The decision that was taken at that time was to confer on the weights and measures inspectors the responsibility for enforcement.
§ What happened was that a conscious and very far-reaching decision was taken to concentrate all the enforcement responsibilities of local authorities into one large, highly skilled professional organisation called in most cases the trading standards organisation, or consumer trading standards administration, and in some cases the consumer protection department. The Stodart Committee said that they appreciated the need for uniformity in the administration and in the interpretation of the statutes and regulations. During the passage of the Trade Descriptions Act through this House doubt was expressed about the likelihood of achieving a uniform approach and of avoiding conflicting judgments up and down the United Kingdom. It is greatly to the credit of the regional authorities and of the Institute of Trading Standards Administration that they have co-operated to achieve a large measure of uniformity. The Institute of Trading Standards Administration have developed a confidential information service to which all authorities contribute and on which all can draw.
§ I see the Chief Whip looking puzzled. But I have some things that I feel that I have to say and get on the record. I hope that they are of interest to noble Lords. I shall try to curtail my speech as much as I possibly can.
§ In addition to that, local associations in the United Kingdom have set up a co-ordinating body on trading standards, known as LACOTS, to which trade associations can refer specific inquiries with confidence that the answer will be accepted by the enforcement authorities. LACOTS have regional panels, one of which has already been established in Scotland to monitor the administration of legislation covering food, agriculture and medicines.
§ There is great value in having in each region one large department handling all trading standards functions. In this way, both consumers and businessmen know where to go for advice and guidance on matters affecting composition, labelling and advertising. There is no doubt at all that this would not be so easy to run if Clause 22 were allowed to stand in the 492 Bill. Above all, there is the advantage of having a sizeable staff of trading standards officers with a professional qualification, the Diploma in Trading Standards, gained through training on the job, passing a common examination covering a wide range of enforcement duties. The training and experience fully covers food and drugs law enforcement and product testing and analysis. It is the width and scope of experience and enforcement in many fields that counts.
§ Naturally, changes have taken place since 1973. But the point is that these strongly reinforce the reasons given by my right honourable friend Mr. Buchanan-Smith on behalf of the Government for the decision taken in 1973 to entrust the food composition, labelling and advertising provisions to the regions. They amply justify his foresight.
May I remind your Lordships what he said at that time, speaking for the Government in the Scottish Grand Committee:
The food composition, standards and labelling provisions are complex and they, I think, quite fairly reflect national and, indeed, in some cases international codes. Enforcement, which must as far as possible he uniform when one is talking about these national and international codes, requires a considerable degree of specialised knowledge and is akin to consumer protection rather than to public health.
That was the principle. He went on:
Today food manufacture, supply and advertising is essentially a large-scale operation usually conducted over an area wider than that of a single local authority. The enforcement of the provisions by regional and islands councils, as is provided for in Clause 158—that is, by councils which we believe are large enough to employ the specialised staff required for this task—should contribute to an all-round uniformity …".
I repeat the words:
Enforcement … is akin to consumer protection rather than to public health.
What on earth induced the Stodart Committee to come to the opposite conclusion? Why have the Government endorsed this retrograde recommendation? No positive reasons have been given—only a few moans about duplication and overlapping that surely do not need a major legislative change to pacify.
§ I hope that my noble friend can give us some—or at least one—such positive reason this afternoon. If he cannot, I hope that he will accept this amendment. If he will not even do that, will my noble friend give an undertaking not to activate the clause until further inquiry is held? He talks about monitoring, but what is the good of monitoring once the change has been made? The chances of it being reversed later are about 99 to 1. Will he set up an inquiry?
In the meantime, may I point out what the Stodart Committee said in their introduction:
The relatively short period allowed to us for making our own report meant … that it was virtually impossible to commission any independent research in real depth on issues where further information could have been very valuable".
Here was such as issue. All my noble friend need do is to introduce on Third Reading a new subsection to Clause 22, or for that matter into Clause 63, bringing the clause into operation on such date as the Secretary of State may by order provide, and then as soon as possible cause an inquiry to be held by an independent person, such as an advocate or an independent expert. If the inquiry comes down on the side of leaving things as they are, then I hope there will be no question about
accepting the result of that inquiry. My Lords, I beg to move.
§ 5.27 p.m.
§ Lord Mottistone
My Lords, I should like to support my noble friend. I spoke at length on Second Reading and at Committee stage and I shall not trouble your Lordship with repeating all that I had to say. It seems to me that one can but endorse what my noble friend said. This is a clear-cut position in which the Stodart Committee—and I hope that my noble friend Lord Stodart will agree—now appear not to have been as fully informed about all aspects of it as have later come to light—as I brought to your Lordships' attention principally at Second Reading. It would seem therefore that my noble friend's suggestion, that if the Government cannot accept that the status quo would be the best solution and the fact in this particular case that the subsequent evidence confirmed that the region really is the best place for this function, perhaps they could make sure that there is a further inquiry to ensure that there is proper and full information on all aspects of the case. I do not think that there is much point in saying more. I hope that my noble friend will be agreeable to those alternatives.
§ Baroness Elliot of Harwood
My Lords, the noble Lord, Lord Drumalbyn, has given the whole story. This is a case of something which is working perfectly well. It could go on working perfectly well and does not require to be changed. The Stodart Committee—admirable as many of its recommendations are—had not the time to go into this, and they say so in the report. Nobody wants to change. I am speaking as someone who has a quite close association with the Consumers' Associations in England and Scotland. I know they feel very strongly about this, and it would be much better if the Government were to be wise enough and broadminded enough to realise that this is something people do feel very strongly about. It is not necessary. It will multiply enormously the number of people engaged on the bureaucratic side. That is one of the things that we on this side of the House stand for trying to prevent. We are in favour of doing away with as much bureaucracy as we can. This is an opportunity to do that, and I hope that the Government will take this opportunity and heed the advice of my noble friend Lord Drumalbyn.
§ Lord Stodart of Leaston
My Lords, again I rise with some trepidation. Your Lordships were extremely patient with me at the Committee stage. I shall not detain your Lordships long because I am well aware that I must not be guilty of repeating what I said at Committee stage. All I would say about what I said then, in the light of the remarks made by my noble friends about evidence that has come out since the report, is that we have heard nothing said during the Committee stage, nor have I read of it as having been said in the other place, of which we were not fully aware when we wrote our report, in which we came to a unanimous conclusion.
What I should like to tell your Lordships, because it may be of interest, is the position that my committee found when we were examining how the powers of the 1956 Food and Drugs Act had been distributed under 494 Section 158 of the 1973 Act. That may not be fully known even to some of my noble friends. I think only one section number is given in the Bill we are now discussing, and only four—the regional ones—are mentioned in my report; and I hope that, having told your Lordships of the difficulties that we faced, my committee and I might receive a little more sympathy and, if I may say so, a little less scorn from my noble friend Lord Drumalbyn.
What we found was that four duties that existed in the 1956 Act had been placed on the regions and islands and 12 duties had been placed on the regions and again on the islands. As a result, of course, the island authorities do the whole lot, which shows that there is no argument or difficulty about expertise. It is irrelevant, in my view, for the purpose of this debate, to list all the district functions—all 12—which included such things as the supervision of slaughtering, the registration of manufacturers and traders and the regulations concerning the sale of horsemeat. The spotlight is really on the four functions which were given to the regions, and we remarked that we felt the functions had become somewhat intertwined with some of the district ones.
Perhaps I may explain what we meant. We found, for example, that one of the four regional functions was to see that any substance which resembled cream but which was not cream must not be sold as cream. "Reconstituted cream" and "imitation cream" were defined. That was very good; but then given to the districts was the duty or obligation of seeing that no water or colouring matter or dried or condensed milk should be added to milk intended for sale. We found it quite extraordinary that one authority should be responsible for cream and another one responsible for milk.
We then come to the contentious matters, and I fully accept them. The other duties that were given to the regions, if I may just paraphrase them, were that they must see that nothing was added to food or abstracted from food which renders food harmful. We asked ourselves, if food is harmful, is it unfit for human consumption?—because, if it is, that is a function for which the districts are responsible. Food must not be sold which is not of a substance or quality demanded by the purchaser. That is a regional function. Labels or adverisements must not give false or misleading descriptions of food.
When one found that to the districts the functions were that no food was to be sold or exposed for sale if it was unfit for human consumption, one has surely got a very considerable intertwining there—that food suspected of being unfit for human consumption was to be examined and seized by the district either on exposure or in the course of delivery; and food must not be sold or moved if the medical officer might suspect it could cause food poisoning. And of course, the district do the inspection of food that is imported into their particular area.
I do accept that the regions will still be involved as the watchdogs over such things as weights and measures, but the latter, of course, did not come under the umbrella of the 1956 Food and Drugs Act and I still think that on balance—and this is a matter of balance—it was not a bad thing to tidy up the functions which were allocated under that one statute to two 495 different authorities and to have them operated by one.
§ Lord Mottistone
My Lords, before my noble friend sits down, would he not agree that he took no evidence from the food manufacturers' organisations who could have clarified for him the misapprehensions I have just heard him giving us in his speech?
§ Lord Stodart of Leaston
My Lords, I am afraid that my noble friend may be correct, without my going through all the papers. We saw no point in taking oral evidence, as I said on Committee stage, from those who had submitted excellent papers in writing. I think that is a matter of practical common sense. But what I do repeat, whether or not my noble friend is right, is that nothing he has said and nothing that has been said by the noble Lord, Lord Campbell of Croy, or the noble Lord, Lord Drumalbyn, has told me anything that my committee or I did not already know. I repeat that it came to a unanimous conclusion, and on it there sat members of regional councils and the head of the leading supermarket chain in Scotland.
§ Lord Lloyd of Kilgerran
My Lords, if I may, I should like to echo the opening comment of the noble Lord, Lord Stodart, that he intervened in this debate with trepidation. I do so with even more trepidation but I do so for a reason which is totally different from the noble Lord's reasons. He referred to the district function in relation to the sale of food unfit for human consumption. Some noble Lords may remember—and certainly the noble Lord, Lord Mottistone, will—when I spoke rather strongly recently in support of a Private Member's Bill which was directed towards an aspect of consumer protection in that it increased the penalties for the sale of unfit food.
I have listened to the speech of the noble Lord, Lord Drumalbyn, and I should like to ask the question: how far does his amendment affect the extremely important and fundamental question of protecting the public from the sale of unfit food? I have heard it said that the status quo is what we want in this matter, and that, therefore, the amendment of the noble Lord, Lord Drumalbyn, should be accepted. I am raising this matter only in relation to the question of unfit food and consumer protection. Will this amendment strengthen, in any way, the powers of the district, the region or whatever it is called in Scotland—I am sorry, but I do not know much about Scottish affairs, as is obvious—and will it affect the protection of the consumer against the sale of unfit food?
§ 5.40 p.m.
§ The Earl of Mansfield
My Lords, as my noble friend Lord Drumalbyn has already pointed out, this matter has exercised both the other place and your Lordships' House on a number of occasions, and I think that the areas of debate are fairly well defined. I shall not go into all the avenues which we explored in Committee, because most of the points are fairly well known. But I think that I should encapsulate my arguments in small compass, because it is something which exercises the minds of a number of your Lordships.
496 I should first point out what we are actually doing. What we are doing is to give the function of enforcing food composition standards and labelling, under the Food and Drugs (Scotland) Act 1956, back to the environmental health departments, which continued to exercise all the food hygiene and safety functions under the 1956 Act till 1975. So we are bringing back what existed before the 1973 Act took effect. Secondly, we are taking this step following the recommendations of the Stodart Committee, and the longer this debate has gone on the more convinced are the Government—and this applies equally to colleagues in another place—that that committee (and my noble friend can cover his ears, if he likes) set about its task and went into the question fully.
It did not have oral evidence directly from the food manufacturers, but it had evidence from the Institute of Trading Standards Administrators and Directors of Consumer Protection. It had a lot of material upon which to base its conclusions and, as my noble friend has pointed out—and, after all, he was chairman of the committee—he has heard no points since his committee sat which are new, and all of those points were fully considered by his committee.
So if I criticise the remarks of my noble friend Lord Drumalbyn—and I do not wish to do so—I do not think one can cavalierly dismiss the conclusions to which the Stodart Committee came. As my noble friend has pointed out, it had on it four regional representatives and a number of other highly distinguished people in this field. The Wheatley Report, of which mention has been made, made no recommendation on the subject, other than to suggest that all environmental health subjects should go together, and these functions were given to regions by the 1973 Act, as I have already said.
The aim, as I think I said in Committee, was to help build up the new departments of consumer protection in the new authorities, and they now operate effectively. But the enforcement of milk legislation was left with environmental health departments, and they were given joint enforcement powers where there was extraneous material in the composition of food. I think it is worthy of note that, at that stage, the noble Lord, Lord Ross, in his then capacity, thought that the functions could quite well have gone to environmental health departments in the districts. So this is something about which there has been a debate for a good number of years.
Therefore, in the new arrangements, we have the assurance of staff with experience, we have the assurance of the considered recommendations of the committee and, we have the fact that the key technical work, the sampling, is, in any event, carried out by the public analysts who already carry out work for both regions and districts. Furthermore, of course, this is not something which is totally novel, because, as my noble friend Lady Elliot will know, the Borders region, which is her area, has delegated these functions to districts.
We now come to post-Stodart. We have had the assurance of detailed consideration not only in this House, but, before that, going back to the beginning of 1981, and, indeed, having two stages. The first asked for comments on the report, and my right honourable friend made his decision in June, 1981. The second 497 was a reconsideration of the position between June and November, 1981, when the Bill was published. I acknowledge that the Food Manufacturers' Federation have written to me to point out that their comments were made after the Secretary of State's decision in June. But I have assured them, in turn, that their representations, which were first made at that late stage, and those from other bodies were considered by the Secretary of State before the Bill was published, and their representations and thoughts have been much considered in argument and debate since.
So the key point is whether the subject is one for food and drugs or consumer protection. My noble friend's committee, and the Government, take the view that the subject is best returned to the food and drugs work carried out by environmental health departments. This will eliminate some uncertainty and overlap, and it should achieve a strengthening integration of these subjects which should primarily be protection of health functions. Just because we are used to high standards in this area of food safety, does not mean that we should take them for granted.
My noble friend Lord Drumalbyn might care to reflect on whether when in his youth he was travelling about in the Middle East developing British commercial interests, he bought food, his prime interest was in the precise weight and value of the food he purchased, or in whether it was safe to eat and what effect it might have on him. I acknowledge that it is quite true that these changes which we propose in the Bill will result in some overlaps on the weights and measures side. There always will be overlaps, but the Bill will remove the main overlap by ensuring that food law is all dealt with by one local department with existing roots, experience and contacts and greater accessibility, particularly in the more rural areas.
It has been said that the transfer is illogical, but, looking at the perspective in which food standards and composition are presently set, is it not more illogical to leave them where they are? Section 1 of the Food and Drugs (Scotland) Act 1956, by requiring that food shall not be injurious to health, sets the tone for the whole Act. Set alongside regional functions connected with quality and quantity control of equipment, hallmarking, fertilisers, petroleum and explosives licences and price and credit control, I suggest that food functions seem out of place. On the other hand, if one takes the responsibilities of the districts for such things as sanitation, atmospheric pollution, rodent control, food hygiene, safety of milk and ice-cream and port health functions, I suggest that there is a much greater degree of compatibility with these food functions.
There is the argument about uniformity being more difficult because there are many more district authorities than there are regional authorities, but co-operation is already there in environmental health departments in other subjects. There is GB machinery for cooperation into which the environmental health departments intend to slot. They are represented on the European Food Law Group. There will be refresher training of their staff. The two professional organisations, the Scottish Institute of Environmental Health and the Royal Sanitary Association of Scotland, intend in any event to merge to form one very powerful body, and the directors are very willing to enter into 498 consultation with the trade to iron out any possible difficulties before they arise.
In conclusion, I have to say that I still think that what is proposed in the Bill is the right way to proceed. The history of the matter, the investigation by my noble friend's committee and the weight of argument on the health side, the keenness and the organisation of the districts and their officers and the existing machinery for consideration all point to a straight-forward transfer of what is in effect a fairly modest function.
Yesterday my noble friend Lord Drumalbyn rang up my department. Unfortunately, I was out, but I was able to consider some of his points with my officials, particularly the last point he made in his speech concerning the moment when these proposals would come into effect under Clause 68 and what we could do meantime. I say to him that under Clause 68 there is complete flexibility. The commencing days may be made by statutory instrument and there may be different commencing days for different clauses of the Bill.
At this very late stage and bearing in mind the full debates and discussions which we have had, I think that the time is past for any formal inquiry—if that was the noble Lord's thinking. But what I am prepared to do, and I am very happy to give this undertaking, is this. Between now and the making of a commencement order—which, as I have said, is flexible—we shall be very ready to consider any representations of substance which include previously unconsidered matters, and we shall be very happy to consider details of real practical difficulties. If something comes to light, we shall give it the time that is required, and if there has to be a delay about laying an order in respect of this particular clause, or section as it will be then, I give the undertaking that we shall have that delay so that we allow as much time as is necessary to get things right before the actual commencing date takes place.
With that undertaking, which I think is very nearly what my noble friend was asking for, I hope he will see that the Government have given prolonged and anxious consideration to all the matters which he and my noble friends and the noble Lord, Lord Lloyd of Kilgerran, have raised this afternoon. I hope he will feel that, while the Government have, as it were, remained faithful to Stodart, they have done so for reasons which are genuine and, I would say, cogent. After the assurances which I have been able to give him, I hope that my noble friend will see fit to withdraw his amendment.
§ 5.55 p.m.
§ Lord Ross of Marnock
My Lords, I was not here at the Committee stage, so I was denied the opportunity to allow my noble friend Lord Stodart—I do not think he will mind me calling him that—to quote what I said in 1972. I apologise to him for that. I am sure that he spent a long time trying to find out how what I said then is in conflict with whatever I might say now.
People have spoken about handing back to districts or to departments. Let me remind them that they are doing nothing of the kind. New regions and districts were created when the 1973 Act came into being. Handing back is not the point. The point is that we are going back on a decision that related to the functions 499 of three new sets of local authorities. When all the departments were being created anew, I argued that this should go to the districts.
It is ten years since I made that speech. Since 1973 we have had experience of the new position, and I do not think that a case has been made out for the Stodart Committee's proposal. I am very glad to see that paragraph 166 said:The Scottish Home and Health Department did not make any major criticism of the existing arrangements".Even though I said something different as to what the arrangements should be, the existing arrangements have been in being from 1974 until 1982. They have worked well and I do not think that sufficient justification has been put forward for this retrogressive step. It would be far better to leave it alone. You do not do things unless you have really got to do them. In the case of concurrent functions, there was a certain measure of intertwining and overlapping, but both Stodart and the Minister have said that there will still be that. With new departments and officers having been created, our experience of the reorganisation of local government has not been all that good. It would be far better to leave things as they are.
The Minister made the point—so did Lord Stodart, I think—that there were a number of regional councillors on the Stodart Committee. I have had a look at the composition of the committee. There were far more district councillors. One of them made his maiden speech yesterday in the House of Commons. It might have been better if we had kept this back, for he might have been able to enlighten us about his feelings concerning this matter. This was Provost Tom Clarke, who had a very distinguished victory a short time ago at Coatbridge and Airdrie.
My feeling is that it is working well, so why interfere with it? I must also confess that if the speech made from this Bench had been made by my noble friend Lord Hughes, he would have said the very opposite. Our counsels are divided on this.
§ Lord Hughes
My Lords, my noble friend has referred to what would have been said if I had made the speech. The only thing wrong with that is the tense, because I am going to make the speech. He knows perfectly well from the discussions which we had both before the debate and today that I do not agree with him, so whatever else I may be accused of I certainly cannot be accused of cowardice. It is a bold man who disagrees with my noble friend, particularly when he is sitting on the same Bench. If my noble friend Lord Howie of Troon is here, he will not be supporting me because he has already enunciated the doctrine that anything my noble friend Lord Ross of Marnock says is automatically correct, so on that basis I am "out" again.
I do not intend to make a long speech because I expressed views on this point at Second Reading. I support what is in the Bill. I was surprised at some of the things said by the noble Lord, Lord Drumalbyn, and I was equally surprised that they were repeated in almost the same way by my noble friend Lord Ross of Marnock. The noble Lord, Lord Drumalbyn, asked why should there be change, and questioned whether there was widespread criticism of the way things are 500 working now. That is a reasonable enough basis, but when the 1973 Act was passed and it was decided to change things from the sanitary inspectors—as I believe they were still known, and he is the same creature as the environmental health officer—it was not done because there was widespread criticism of the way in which the job was being carried out then. So that is no argument against changing now—because there was no criticism—if it was not an argument against changing when the original change was made.
The second point on which I disagree with the noble Lord, Lord Drumalbyn, is where he said that no doubt the job would be done quite well if it went to the district council. That is a perfectly fair statement. He then went on to ask, would it be done better if it was transferred to the district council, or would it be done more economically? Many things have been said about regional councils since the Act was passed in 1973, but I doubt whether there are many ratepayers who would say that regional councils have been economical. I doubt very much whether the shifting of this function from one authority to the other would give an increase in expense. I do not believe that the authorities will need any more staff to do the job than they have at the present time. I am pretty certain that the regional councils will not dismiss any staff because their main emphasis, as has been stated, has been on protecting the consumers' pocket. I thought that the point made by the noble Earl, Lord Mansfield, about the movements of the noble Lord, Lord Drumalbyn, in the Middle East, and whether he ought to have been more interested in the price and weight of the food or whether it was safe to eat, shows the difference between what the region is doing and what the district council is doing in their respective functions.
If the matter which is most important is protecting the health of the individual, it will be best protected near to the individual—and that is in the number of district authorities which exist. As to capacities, surely no one would suggest that the Western Islands Council is more capable of undertaking that than, say, Edinburgh District Council or Glasgow District Council? Yet because they are all-purpose authorities, they have these departments at the present time, as they are in Orkney and in Shetland. So size is not necessarily the determination of how the job can be done efficiently.
My noble friend Lord Ross of Marnock said that it was not a case of returning this power because it was borough councils which had it before and they no longer exist: that it is a totally new organisation, with district councils on the one hand and regional and islands councils on the other. But what did not alter at that time were the people who were doing the job. The bulk of the people who were undertaking that function are the class of people who are still employed by the district councils and not by tile regional councils. Under the Bill, the work will be done by those people who have expertise in looking after health and so on. I do not believe there is any political argument on this, and the only reason for saying what I said at Committee stage was to make it perfectly clear that there is no political point of view on this matter on this side of the House either.
§ Lord Drumalbyn
My Lords, we seem to be agreed on both sides of the House to disagree with our own sides. I would like to thank my noble friend Lord Mansfield for his reply, and I recognise that, in the circumstances, possibly he has gone as far as he can. I believe that the Institute of Trading Standards Authorities and its Scottish counterpart will probably take advantage of his offer. I find it difficult to answer some of the points which have been made without reopening the whole debate, and I am quite certain that your Lordships would not wish me to do that.
My noble friend Lord Stodart of Leaston felt he would have welcomed more sympathy towards his committee than I appeared to show. I have every sympathy with his committee because they did not have time to do the job. This is exactly what my argument has been throughout. If your Lordships will look through the list showing the amount of oral evidence, you will find hardly any at all on this subject. I am asking for a proper inquiry and lots of time. I am in no doubt that I have not said anything this afternoon which my noble friend has not heard before. It would be quite astonishing if he had not heard the major economic argument and, for that matter, the health argument that I put to him. The fact remains that since redistribution in 1973, the tendency for more and more control to be exercised at higher and higher levels is one that is very difficult to rebut when one is considering where the questions of composition, trading, advertising and so on are to be controlled. This seems to me to be a cardinal point.
Like the noble Lord, Lord Ross of Marnock, I too am against upsetting things which seem to be going well. I am sorry if I have offended my noble friend because that is far from what I wanted to do, but I think he went a little far in saying that I showed scorn. I showed no scorn at all; it is simply that he did not have time to do the job. He said so, and he said so at Committee stage too the implication of what he said was just that. As I have said from the outset, I think that he did an admirable job, except in this particular case.
I recognise that the conclusion of my noble friend's committee was a unanimous one, but we all know how these things go. There is often a strong emphasis on achieving a consensus—and there has been some criticism of this in your Lordships' House recently—and also, perhaps, there is a tendency to look for recommendations which will stand up when they are put down, so to speak, and this may have influenced unanimity in the Committee.
The noble Lord, Lord Lloyd of Kilgerran, asked a question about protecting the public from unfit food. I believe he had a copy of the Food and Drugs (Scotland) Act in his hand at the time. It is not for me to dilate on this, but the provisions dealing with food which is unfit for human consumption are contained in Clause 8 onwards, which are already the district councils' responsibilities. The earlier part deals with the sale of goods. Clause 8 states:.—(1) Subject to the provisions of this section, any person who—502 This is a matter which relates back to the days before the Food and Drugs Acts were consolidated, when so much of the food both in Scotland and in the Middle East was open to the flies and all the rest of it. The responsibility that was placed on the district council was the responsibility to avoid contamination. The responsibility on the regional council was to avoid adulteration. That was the principal distinction. The adulteration now takes place at the level of the factory and packing to a far greater extent than it did before, when it was common enough to put sand in sugar and all the rest of it. I hope that answers that point.
any food intended for, but unfit for, human consumption shall be guilty of an offence against this Act.
- (a) sells, or offers or exposes for sale, or has in his possession for the purpose of sale or of preparation for sale; or
- (b) deposits with, or consigns to, any person for the purpose of sale or of preparation for sale,
I do not think I will follow up what was said about the Middle East because I have made that very important distinction. Incidentally, it was the person himself who had to look after his health in those days rather than the local authorities. I would simply close by saying that I cannot recommend your Lordships to divide on this matter, not because I do not feel strongly about it. I would add that, quite naturally, the Institute of Trading Standards feel strongly about it because they consider they have not had a fair deal. It is not the fault of my noble friends. There just was not the time. It would not really make sense. It is unlikely that we would win this Division with the proportion of noble Lords present in the Chamber. And even if we did, I feel absolutely certain it would get put back in the other place, so it is not worth the trouble of dividing against it. But I am grateful for the distance to which my noble friend has gone, and, in the light of that, I think it would be ungracious of me to divide the House. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 33 [Consequential transfer of officers of local authorities]:
§ 6.12 p.m.
The Earl of Mansfield had given notice of his intention to move Amendment No. 9:
Page 22, line 34, leave out ("is") and insert ("are").
§ The noble Earl said: My Lords, I shall just touch on this amendment and also Amendments Nos. 10, 11 and 12. I have been thinking whether we are going to continue to be gloriously inconsistent or whether we should, as it were, give effect to the obvious desire of the House for what it considers to be better English, as opposed to the law, which really ought to be more precise. I have considered the matter. I think I must go back and satisfy myself that in showing this delightful inconsistency the House is not going to put something into the Bill which it might afterwards regret. So, with the possible threat of coming back to this matter on Third Reading, I will not now move these four amendments.
§ [Amendments Nos. 9 to 12 not moved.]
The Earl of Mansfield moved Amendment No. 13:
After Clause 49, insert the following new clause:
§ "Power of local authority to incur expenditure for certain purposes not otherwise authorised.
- (a) the following subsections shall be inserted after subsection (2)—
- "(2A) Without prejudice to the generality of subsection (1) above, the power of a local authority to incur expenditure under that subsection includes power to incur expenditure in giving financial assistance to persons carrying on commercial or industrial undertakings.
- (2B) Financial assistance under subsection (2A) above may be given by lending or guarantee, or by making grants.";
- "(4A) For the purpose of determining whether a local authority have exceeded the limit set out in subsection (4) above, their expenditure in any financial year under this section shall be taken to be the difference between their gross expenditure under this section for that year and the aggregate of the amounts specified in subsection (4B) below.
- (4B) The amounts mentioned in subsection (4A) above are—
- (a) any grant paid to the local authority for that year under the Local Government Grants (Social Need) Act 1969, in so far as the grant is in respect of an activity in relation to which the authority have incurred expenditure in that year under this section;
- (b) the amount of any repayment in that year of the principal of a loan for the purpose of financing expenditure under this section in any year;
- (c) so much of any amount raised by public subscription as is spent in that year for a purpose for which the authority are authorised by this section to incur expenditure;
- (d) any grant received by the authority for that year out of the European Regional Development Fund or the Social Fund of the European Economic Community, in so far as the grant is in respect of an activity in relation to which the authority incurred expenditure in that year under this section;
- (e) the amount of any repayment in that year of a loan under this section made by the authority in any year; and
- (f) the amount of any expenditure—
- (i) which is incurred by the authority in that year in circumstances specified in an order made by the Secretary of State; or
- (ii) which is incurred by the authority in that year and is of a description so specified; or
- (iii) which is defrayed by any grant or other payment to the authority which is made in or in respect of that year and is of a description so specified."; and
§ The noble Earl said: My Lords, your Lordships may recall that we had a debate in Committee on this matter, and the noble Lord, Lord John-Mackie, who I am sorry is not in his place, moved a very similar amendment, and withdrew it eventually on my assurance that we had the objects of his amendment under urgent and sympathetic consideration, and that I would look at the drafting of his amendment and bring forward an appropriate provision at Report. The Convention of Scottish Local Authorities have confirmed that the amendment is desirable, and minimal adjustments only had to be made to the drafting. In fact the new clause proposed in this amendment is, except for the side title, identical to that proposed by the noble Lord, Lord John-Mackie, in Committee.
§ The effect will be to make it absolutely clear to local authorities that Section 83 can be used to assist financially persons carrying on industrial and commercial undertakings, and, secondly, to clarify that the limit 504 on the total expenditure incurred under this provision in any financial year is the product of a rate of 2p in the pound calculated net of certain items which are specified in the amendment.
§ The need for amendment of Clause 83 on the lines now proposed was suggested to the Secretary of State by several Scottish local authorities and in particular by the Convenor of Strathclyde Regional Council, when my right honourable friend last met the convention. The amendment reflects similar amendments made to the corresponding provision for England and Wales in the Local Government (Miscellaneous Provisions) Bill. I beg to move.
§ Lord Hughes
My Lords, I would like to take this opportunity of thanking the Minister for fulfilling the undertaking which he gave at the last stage of the Bill. I have gone through the amendment and compared it with that which was moved by my noble friend Lord John-Mackie in Committee. As the noble Earl has said, this one is identical, with just a few minor drafting amendments. If I may give as an example the very first one that occurs, in the amendment as my noble friend put it forward, the 1973 Act was given its full title and, in the amendment as it stands, it is just described as the 1973 Act, because in the interpretation clause the 1973 Act is explained. So there is a saving in language. That is the sort of alteration which has been made.
I am also glad that in moving the new clause the Minister referred to the fact that this had originated with the local authorities concerned. I should like particularly to express thanks to the Strathclyde Regional Council, because it was they who noticed at a very late stage in the proceedings that the Bill did not contain the alteration which had been made to the English Bill in similar circumstances. So between them this somewhat unlikely combination of the Strathclyde Region and the Scottish Office have produced this very desirable clause, which I have much pleasure in supporting.
§ On Question, amendment agreed to.
§ Clause 52 [Limitation on payment which may be required of persons exercising right to purchase under Tenants' Rights, Etc. (Scotland) Act 1980]:
§ 6.19 p.m.
§ Lord Hughes moved Amendment No. 14:
Page 35, line 40, at end insert—
("(3) In section 4 of the Tenants' Rights, Etc. (Scotland) Act 1980 (regarding the conditions of sale), for subsections (7) to (8) there shall be substituted the following subsection—
(7) In a rural area to which an Order under subsection (6) above applies, there will be no further disposal of the dwelling-house unless—
§ The noble Lord said: My Lords, with the leave of the House, my remarks will be devoted to Amendments Nos. 14 and 15. These were amendments which I withdrew at the last stage and I said then that they would be re-tabled. But just as the noble Lord, Lord 505 Drumalbyn, on an earlier amendment said that he did not propose to divide the House, at this stage I am in that same position so far as these amendments are concerned.
§ I personally hold views in relation to the sale of houses which are not universally held by people in local government, or even in new town development corporations. My disagreement with what is being done is not concerned with the principle but with the extent to which it is carried out. There are two things particularly that I do not like. I do not like the possibility that all houses in a particular area may be sold. I think there ought to have been some provision for maintaining a balance between houses for sale and houses to rent.
§ The second matter I do not like concerns the question of the authorities being compelled to provide finance. This is rather important in relation to both amendments. I know from experience that last year, for instance, approximately four-fifths of the money which was seized from the sale of houses to sitting tenants went back in loans to those tenants, and what was left as being available for the building of new houses was such that somewhere between five and 10 houses had to be sold to provide sufficient remaining money to build one house. These two particular categories—houses in rural areas which have been available for renting, and houses which are primarily adapted for disabled people or which, in relation to their vicinity, are particularly suitable for elderly people—are ones for which it would be most undesirable to have no provision of this kind made. If there are a comparatively few houses and they all find themselves in owner occupation, then authorities will be compelled to go on building more houses of this kind.
§ The two amendments suggest that there should be no further sale of houses of that kind unless the tenant who is exercising his option undertakes to give the authority the chance to acquire the house if he decides to sell it—acquire it not at the price which he paid for it, or even at the updated value of what he paid for it, but at the market value then prevailing. If the authority decides not to take it or—to go further—if it has failed to exercise the right to acquire it within one month, then the sale can go ahead. It gives the opportunity—if the Government were to accept it—in the comparatively small number of cases, for there to be the possibility of houses reverting to the ownership of the local authorities, so that they are available to the people who are on their waiting lists for these particular classes of houses.
§ The case for the amendment is exceedingly good, but I am in no doubt at all that the Government will not accept it because they are so tied to the idea that houses must be sold and, having been sold, must remain sold, that this flies totally in the face of their wishes in the matter. But it seemed to me, having tabled the amendments in the first place, that it would be wrong not to explain what would arise if these amendments were accepted by the Government. I beg to move Amendment No. 14.
§ Viscount Thurso
My Lords, I am sorry that the noble Lord, Lord Hughes, feels so pessimistic about the chances of these two amendments. He will know that we on these Benches have always supported him 506 in this matter and, indeed, when the Tenants' Rights, Etc. (Scotland) Bill was before your Lordships' House, we fought for the retention of a certain number of specialised houses by local authorities so that they were able to discharge what is their undoubted duty.
It is clear from what the noble Lord, Lord Hughes, has said that it will become increasingly difficult for local authorities to discharge their duty in providing houses of the specialised type, such as, old people's houses, houses for the disabled, houses for the elderly who require attention and so on, it these houses are to be exposed to the possibility of purchase. This is especially true in rural areas; and it is expecially true in the remoter parts of Scotland. I am sorry that the noble Lord thinks that this will not receive even a smile from the Government Front Bench. Nevertheless, if there is any hope, I would plead with the noble Earl, Lord Mansfield, to accept—or to give some hope of accepting—these amendments. If he will not do so, I can only applaud the noble Lord, Lord Hughes, and his friends for bringing them before your Lordships' House.
§ 6.25 p.m.
§ The Earl of Mansfield
My Lords, once again the noble Lords, Lord Hughes, has spoken briefly but cogently to both Amendments 14 snd 15 and I shall do the same. As noble Lords have said, the matter of the sale of council houses was one which we debated at very considerable length when the Tenants' Rights Bill—as it then was—went through your Lordships' House in 1980.
The amendments apply both to sales of councils houses in rural areas and also to houses in respect of the elderly or disabled. So far as rural housing is concerned, of course we are now in a different situation from that which we were in in 1980, because in 1980 we had to speculate about the possible effects of the legislation. Now the Act has been in operation for 21 months and we have had hard evidence by which to judge its effects. In the circumstances the onus must be on those who want to change the provisions of the 1980 Act, to show that problems have arisen in practice, that the existing legislation is unable or inadequate to deal with those problems, and that therefore there should be a change in the Act. The Government have received no such representations since the Act came into effect which would suggest that there have been problems either in relation to sales in rural areas in general or in relation to the specific issue of second homes, which your Lordships may recall was one of the matters which came to light. Noble Lords this evening have not been able to produce any such evidence, either.
Therefore, I think that the House has to conclude that unless there is something which would cause the Government to reconsider their policy, the Government are at least entitled—whether noble Lords opposite like the policy or not—to pursue their policy unless and until evidence that they should make some sort of reconsideration becomes, as it were, cogent and present.
I do not want to go over the old ground as to the effects of a sale on the stock of houses in the non-rural areas. We did have an independent study of second homes which was completed in 1977. It was called 507 Second Homes in Scotland and it was prepared by the Dartington Amenity Research Trust. It indicated that there had been no net growth in the number of second homes in Scotland in the previous five years, and that state of affairs remains valid today. I submit that the presumption in Scotland is, therefore, that a second homes problem related to the sale of council houses is unlikely to arise. That presumption is so far borne out by experience. It follows, therefore, that special powers should only be available where there is evidence of the emergence of a second homes problem and that is, therefore, where we part company with the amendment.
I remind your Lordships that the Secretary of State may allow a local authority to apply a 10-year preemption condition to council house sales in its area, or in some part of its area, if there is evidence of council houses being resold as second homes. The amendment would remove that requirement from the Secretary of State. In other words, he would not have to be furnished with such evidence, and so there would be no criteria governing the Secretary of State's use of the power, and that I think would be wholly wrong. Therefore, I do not see that there is any case that has been made out for Amendment No. 14.
On Amendment No. 15, again, this is an area which has been extensively debated—I could say exhaustively debated. On at least two occasions the House decided on a Division that elderly and disabled tenants should not be deprived of the same rights as other tenants. That is a principle to which I stick. We have now had 21 months' experience of the legislation in operation. Again, there has been no evidence that the existing legislation is in any way in adequate. We have received no representations on this broad issue from the Convention of Scottish Local Authorities since the Tenants' Rights (Amendment) Act—which, as your Lordships may remember, dealt directly with this area of policy—came into effect.
So the legislation as it stands was carefully thought out. It was very thoroughly debated and, so far as I know—and noble Lords have not furnished the House with any evidence to the contrary this afternoon—the Act is working well. In those circumstances, I could not possibly advise the House to accept this amendment. Quite frankly, I do not even think that the noble Lord, Lord Hughes, was trying to make me do so.
§ Lord Hughes
My Lords, if I am anything, I at least claim to recognise what is possible, and I know that in matters of this kind, even if I had persuaded the Minister of State that this was the right thing to do, he would have found himself in serious difficulty with his colleagues in another place if he had so far departed from the ideas to which they appear to be so firmly attached.
The noble Viscount, Lord Thurso, said that he was surprised that I was so pessimistic about it. If I had thought that there was some way in which we could lock the doors and confine the voting on these amendments to those who had listened to the debate, there would be a fair chance that we would have carried the amendments, but I know perfectly well that as soon as the bell rings people come crawling out of the 508 woodwork from all over the place, and those who would determine the fate of the amendments are those who have not listened to a single word of what has been said. We know that on both sides of this Chamber people will come in and say "How are we voting?". On that basis, the noble Earl, Lord Mansfield, would win if I divided on these amendments.
However, I did get some help from the noble Earl's reply. He is more or less inviting those who know what the position is to make representations, and I shall encourage my friends in local government to gather evidence on these matters, although not between now and the next stage of the Bill, which I understand is not very far away. Unless the Minister has been making a totally empty promise, there is a possibility that if the evidence can be forthcoming in due course, the Government will table the necessary amendments to the legislation. On the basis, I beg leave to withdraw Amendment No. 14.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 15 not moved.]
§ Clause 56 [Liability of water authorities etc. for damage caused by escapes of water onto agricultural or forestry land]:
Viscount Thurso moved Amendment No. 16:
Page 38, line 36, leave out ("(but not any building)") and insert ("and fixed equipment as defined in section 93(1) of the Agricultural Holdings (Scotland) Act 1949 excepting all permanent buildings including farmhouses and farm cotages").
§ The noble Viscount said: My Lords, your Lordships will recall that I moved a very similar amendment to this one at the Committee stage and withdrew it on receiving an assurance from the Minister that he would look into the matter. This he very kindly did and wrote to me suggesting that the wording within the Bill before your Lordships was sufficient to cover all the eventualities that I had in mind. In fact, he was able to suggest that, with the usual caveat that the interpretation of statute is a matter for the courts, the word "land" for the purposes of this clause would attract the definition in the Interpretation Act 1978 and would, therefore, include buildings and other structures.
§ There is no disagreement between the noble Earl and myself on purpose. I think we both agree that the purpose should be to compensate people for damage to agricultural land in so far as this cannot normally be insured against. Therefore, it is agreed by both of us that buildings—farmhouses, farm cottages and so forth—should be left out because these can normally be insured against damage, and are normally insured against damage. We are trying to make sure that the compensation which it is being strictly enjoined upon the local authorities to give for burst water mains should be given for farmland and for the things that go with farmland which it is not normally possible to insure.
§ If I accepted the definition which the noble Earl has given to me—that is, the one in the Interpretation Act 1978—it seems to me that for certain one thing which is very important to farmland would not be covered by this provision, and possibly several other things as well would not be covered. The one thing that it seems to me for certain would not be covered 509 is shelter belts, because the definition in the Bill before your Lordships is that where the ground is covered by trees the compensation would be given only if the trees were for growing of timber or for purposes connected therewith.
§ The areas where it seems to me possible that the farmer or landowner would not be covered are where we refer to a part of the land which, in effect, is not a structure. It really depends on the definition of the word "structure". For instance, I wonder whether a ditch is a structure or whether it is part of the shape of the land; whether an open drain is a structure, or whether a mole drain is a structure. If a flood were to block up the mole drainage system in, say, a clay soil, it would do enormous damage which would cost large sums of money to put right, and if it were not regarded by the courts as a structure, there would be no compensation for this important part of the land.
§ The same might apply to roads, although one might think that a road was a structure in the sense that somebody has brought something to it and made something on the surface of the land, but one could hardly describe a mole drain as being a structure in the normally accepted sense of the word, and I think that open sheep drains and field ditches might hardly be regarded as structures.
Therefore, I invite the noble Earl to consider the amendment which I have put before him, because, as far as I can see, it excludes as much as would be excluded. I am asking him to accept a definition which excludes,
all permanent buildings including farmhouses and farm cottages",
from the definition of "agricultural land" contained in the Agricultural Holdings (Scotland) Act. So far as I can see, these are the only things to which he could take exception in the sense that they are normally insurable. The remainder of the things listed as being part of agricultural land under the Agricultural Holdings (Scotland) Act—the fences, hedges, stone dykes, gate posts, ditches, open drains, tile drains, conduits, culverts, ponds, sluices, flood banks, main water courses and so on—are all things against which it is not normally possible to insure. Therefore, I invite the Government to accept this amendment and, if not, perhaps for your Lordships to ask the Government to accept it.
§ The Earl of Mansfield
My Lords, I confess to a faint feeling of pique that the noble Viscount simply will not accept the effect of the advice which I gave him by letter. I undertook in Committee to consider whether the existing wording of the clause covered such items as ditches, culverts, fences and drains. I have fulfilled my undertaking. I have written to the noble Viscount, and I said to him in the letter that "other structures" do cover these things, and indeed I can say shelter belts too. But apparently the noble Viscount will not be persuaded that his concern is misplaced.
I want to correct one point about what is the object of this exercise. It is not to provide compensation for farmers, as such. It is, in fact, to make the water authorities liable to a measure of strict liability, so that if there is a flood and if a farmer sustains damage to, for instance, his crops and is unable to prove 510 negligence on the part of the water authority, nevertheless he will still be compensated. In any instance, if he can prove negligence of course he will be compensated. But what we were trying to do—and I recognise that it is a compromise, and, as a compromise, may I say is unpopular with the convention—was to provide a degree of strict liability in respect of the uninsurable, but to make farmers certain of obtaining relief, if they suffered a flood in the absence of negligence on the part of the water authority, by insuring that which they can insure.
If I accepted this amendment it would go much wider than the compromise. I should also note that an addition to the Bill of a reference to "fixed equipment" would import a concept of agricultural law which enables waygoing tenants to get compensation for items provided by them during their tenancy. This reference is not at all necessary, and certainly is not appropriate in the entirely different context of this provision.
I cannot accept the amendment. I can only reiterate to the noble Viscount, Lord Thurso, that it is not realistic to try to separate such items as ditches, fences and drains from the land itself. The fence is clearly seen to be for a good agricultural purpose—the containment of livestock. Without it the land, for all intents and purposes, could not be used for an agricultural purpose, particularly if it is adjacent to a road for instance. Equally, without a ditch or a drain the land would not be suitable for any agricultural purpose at all if the drain did not work. That is why the law says that these items, such as fences and ditches, and indeed shelter belts, are part and parcel of agricultural land, and if damaged in the circumstances I have described would attract compensation under the Bill. I hope that the noble Viscount will not divide the House on this because I assure him that it is quite unnecessary.
§ Lord Hughes
My Lords, before the noble Earl concludes his remarks—which is a different way of putting "before he sits down"—may I ask him a question?
As I understand the point raised by the noble Viscount originally, the farmer in England and Wales was in a more favourable position because of the responsibilities which were placed on the water authorities. Does the Bill as it stands put the water authorities in Scotland in exactly the same position as the water authorities south of the Border? If not, why not?
§ The Earl of Mansfield
My Lords, the answer to the noble Lord's question, in short, is no. As the noble Lord will know, the water authorities are the local authorities in Scotland and not a separate statutory body as they are in England. It has been a bone of contention for some time that the English farmers had this rule of strict liability and the Scottish farmers had none. During consultations which have now gone on for over two years—just about as long as I have been in the Government—the Scottish local authorities, naturally enough, were unwilling to undertake further possible financial burdens which were not already enjoined upon them, or imposed upon them, by statute.
That is why I say that this is a compromise. What we decided to do was to provide a measure of com- 511 pensation by strict liability in cases where the farmers could not insure. In cases where he can insure then we think that it is incumbent upon him to provide a measure of compensation for himself. That is the way the compromise has been reached. I hope that the noble Lord is satisfied before I finally sit down.
§ Viscount Thurso
I am grateful to the Minister for at least expanding his letter somewhat. His letter, which I hold before me, does not include any reference to shelter belts. It certainly would be a natural mistake for any reasonable person to make to assume that land with trees on it was not land with structures on it. I have never before heard a tree described as a structure. However, the noble Earl has assured me that shelter belts are included; that holes in the ground are also structures and therefore are included; and that all of the things that would be included if he accepted my amendment are in fact included. On that basis I am happy to agree that he has given me what I wished to have. In those circumstances, even though the Scottish farmer is not given the same protection against the burst of a water main as the English farmer is given, even though the strict liability is not so extensive on the Scottish water authority as it is on the English water authority, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Schedule 3 [Minor and consequential amendments]:
The Earl of Mansfield moved Amendment No. 17:
Page 69, line 39, leave out ("such application") and insert ("their so applying").
§ The noble Earl said: My Lords, this is a drafting amendment to correct a possible ambiguity. I beg to move.
§ On Question, amendment agreed to.
§ [Amendments Nos. 18 and 19 not moved.]