Lords Sitting of 8 March 1982

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

Apartheid in South Africa: Economic Sanctions
Lord Hatch of Lusby: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will consult with their allies and the front line states on the practicalities of imposing economic sanctions against the Republic of South Africa to end the policy of apartheid.
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office: (Lord Trefgarne): No, my Lords. In our view sanctions would fail to achieve the desired effect, would inflict serious damage on the economies of African and western countries including Britain, and wreck any chance of success for the Namibia negotiations.
Lord Hatch of Lusby: My Lords, does the noble Lord the Minister recall the number of times that his Government have objected to the principle of economic sanctions as a means of international pressure? Why have the Government changed their mind over Poland? Do they believe that the Polish régime is more tyrannous than that of South Africa? Is this not leading the Government to use double standards in their actions in foreign policy?
Lord Trefgarne: No, my Lords. The comparison which the noble Lord seeks to draw between Poland and southern Africa is not in the remotest degree valid. What we have done in respect of Poland is to indicate by the measures we have taken that business cannot continue as usual with that Government or with the Government of the Soviet Union.
Lord Paget of Northampton: My Lords, I am a little worried about the word "allies". Could the noble Lord confirm that in two great wars South Africa proved to be a most valuable and loyal ally? Could he further confirm that she continues to be one of our most valued and valuable trading partners?
Lord Trefgarne: My Lords, it is indeed the case that we have substantial commercial relations with South Africa. As for the drafting of the Question and the words used in the Question, the noble Lord, Lord Paget of Northampton, should address that point to the noble Lord, Lord Hatch of Lusby.
Lord Jenkins of Putney: My Lords, is the noble Lord the Minister aware of the letter in The Times from the Archbishop of the Indian Ocean asking the Government to explain the moral difference between their attitude to Poland and their attitude to Namibia? As the noble Lord himself is apparently unable to do that, will he ask his noble friend the Foreign Secretary to do so?
Lord Trefgarne: My Lords, I did see the letter in The Times to which the noble Lord refers. In particular, it drew attention to the case of Mr. Walesa, currently detained in Poland. Our anxiety and indeed our locus for expressing our anxiety in regard to Poland stems not least from the Helsinki Final Act.
Lord Hatch of Lusby: My Lords, would the noble Lord agree that the actions of the South African Government—who include certain individuals who are

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opposed to South African participation in the war—against trade unionists, against the Churches and against the South African Council of Churches, is parallel to the actions which we all deplore in Poland? Can he explain where the difference in principle lies? Would he also note that in the Question I asked him whether he would consult with the front line states, which he has mentioned, and all of which have declared that they are willing and anxious, even if they have to suffer, to play their part in international sanctions against apartheid?
Lord Trefgarne: My Lords, the distinction between Poland on the one hand and southern Africa on the other hand is as follows. First, we have not sought to impose trade sanctions on Poland. The difficulty in which we now find ourselves in regard to our trading arrangements with Poland is that the vast amount of credit Poland has enjoyed in recent years has imposed serious difficulties on her economy. To continue the trading relationship as it was would involve extending a good deal more credit to that economy under circumstances which would not, I believe, be prudent. We have consistently and repeatedly stated our opposition to apartheid, to everything that goes with it, and to everything that it stands for. I do not believe that they or the noble Lord can be in any doubt about our views on the matter.
Lord Nugent of Guildford: My Lords, is my noble friend aware that the debate on this Question, which was as distinguished for its length as for its interest, has, according to our clock, taken only one minute? Although witty as ever, his brevity was not quite up to that standard. Perhaps officers of the House would have a look at the clock.

Local Government Staff and Economies
2.41 p.m.
Lord Ellenborough: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper:
The Question was as follows:
To ask Her Majesty's Government whether they are satisfied with the rate of reduction in local government staff numbers to meet the need for all possible economies.
The Parliamentary Under-Secretary of State, Department of the Environment: (Lord Bellwin): My Lords, the Government believe that, as is implied in the expenditure targets that they have set local authorities, there is scope overall for an increased rate of reduction in local authority manpower which can be achieved by greater economy and efficiency in the provision of services and in administration.
Lord Ellenbourgh: My Lords, in thanking my noble friend for that Answer, and noting his belief that there is further scope for economies, may I ask whether my noble friend agrees that unless high-spending local
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authorities do make further staff reductions, especially in non-essential projects, inevitably rates will continue to rise, which will mean that more businesses will be forced to close down and unemployment will rise further? In particular, may I ask my noble friend whether one way of reducing staff costs in local government would be for many more councils to follow the encouraging lead of such councils as Southend and Wandsworth in putting some services out to contract in the private sector? Will my noble friend do all he can to encourage this trend?
Lord Bellwin: My Lords, I agree entirely with my noble friend on his first remarks. As for the second part of his question, I agree that there is without doubt great opportunity here if local government will look at this matter objectively, and will simply compare and obtain competitive quotations. I entirely agree that there is much scope.
Lord Molloy: My Lords, is the noble Lord aware—I am sure that he is because of his experience and background—that the service provided by British local government is truly remarkable, much of it rarely realised? The work of local authorities and local councils is often the butt of newspapers and so on. Does the noble Lord not agree that the present Government seem to be obsessed with two words: making somebody redundant, giving him the sack—and putting him on the dole? Does he not also agree that local authorities give a great deal of encouragement, contracts and support to private industries, and that this provides a way for both sides of industry, public and private, to work together in harmony?
Lord Bellwin: My Lords, it really is difficult to respond to a speech made in the form of a question, although I appreciate the point the noble Lord makes. I think one has to recognise that this whole debate is about obtaining value for money. This is what concerns people. The level of services provided is in many cases of a good standard; there is no argument about that. The question is whether all the services can be afforded in the way in which they are now provided. Are they being provided in the most efficient way? That was the thrust of my noble friend's point, which I think was a very fair one and ought properly to be made.
Lord Alexander of Potterhill: My Lords, would the noble Lord the Minister agree that, having regard to the relationship between the targets set and the achievement in reaching those targets, local government is very much more successful than central Government? Would he not agree that the point of the Question would be more appropriately addressed to central Government than to local government?
Lord Bellwin: No, my Lords, I would not agree at all. There is no way of making comparison; we are not comparing like with like. Local government does not have to deal with national matters such as defence. The only fair way in which one might draw comparison is by looking at the reduction in manpower since this Government came into office and since local government started to react to the Government's request.

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The numbers show that the reduction by central Government in their staffing is 7·1 per cent. while the reduction by local government is 4·1 per cent.
Baroness Gaitskell: My Lords, is not this question of reduction of personnel as a way of curing unemployment simply adding to unemployment?
Lord Bellwin: My Lords, with respect to the noble Baroness, the fact is that if there is either inefficiency or over-manning—and nobody that I know in local government denies that there is much of that—people are simply paying for something that they are not getting. The long-term effect of that is what we are seeing today; people are saying that enough is enough and they will not stand for it. That has a disadvantageous effect on the private sector, who at the end of the day have to provide the real jobs and the real wealth that produces the money for all the other employment.
Lord Beswick: My Lords, is it not a fact that we are seeing streets remaining uncleaned and services that we should have in a civilised community being reduced? Would the noble Lord make absolutely clear that there are no staff reductions when absolutely essential services are required?
Lord Bellwin: My Lords, I would have thought that any authority really concerned about the streets being cleaned and the need to make reductions should go and look at places which have taken on the services of the private sector, like Southend, and see the improvement in standards there for a dramatic decrease in cost.

American Weapons and European Bases
Lord Brockway: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper:
The Question was as follows:
To ask Her Majesty's Government whether their attention has been drawn to the statements made on the BBC "Panorama" programme on 25th January that the Pentagon plans to manufacture a nerve-gas warhead for cruise missiles in Europe and Big-eye bombs for the F-111 fighters already at American bases in Britain; whether such plans are known to them; and whether consent has been or will be given to fulfil these alleged intentions.
The Minister of State for Defence Procurement (Viscount Trenchard): My Lords, I am aware of the "Panorama" statements to which the noble Lord refers. In my Answer to the noble Lord, Lord Mayhew, on 18th February I explained that, while the United States Government have decided, in the face of the Soviet Union's massive chemical warfare capability, to proceed with some development of new chemical weapons, no decisions on deployment have been taken. We hope that arms control discussions in this field will now make progress.
Lord Brockway: My Lords, would not the noble Viscount agree that chemical weapons can now become even more deadly than nuclear weapons? Can he give us an assurance that chemical weapons are not being and will not be installed on American bases in Britain without our consent? May I ask him to do two more fundamental things? First, in view of the charges that chemical weapons have been used in Afghanistan, Kampuchea and Eritrea, will the Government urge the United Nations Security Council to appoint a commission of unaligned nations to examine those charges? Secondly, will the Government agree to support at the Geneva Committee an international convention banning and dismantling all chemical weapons, in view of the Soviet and American stocks, and President Reagan's plan, which the Minister himself has mentioned?
Viscount Trenchard: My Lords, when I answered the noble Lord, Lord Mayhew, I compared these weapons, as the noble Lord has just done, to nuclear weapons. I also mentioned that the Soviet stocks were well in excess of 300,000 tonnes of modern weapons mainly stored forward, against an out-of-date, aging stock of 30,000 tonnes in America, which is the only stock that they have. Against that situation, I hope the noble Lord, instead of pressing this House, will press for the cessation of production of chemical weapons in the UUSR and for the destruction of their stocks. We have the guarantee on consultation of which the noble Lord speaks and which I also announced on 18th February, and, so far as the various United Nations or other forums are concerned, we shall lose no opportunity to support practical disarmament moves.
Lord Peart: My Lords, is the Minister aware that recently in the International Herald Tribune there is an account to the effect that so far nothing has been decided. We have the statement by the Defence Secretary Caspar Weinberger that, according to sources, he told alliance diplomats that no decision had been made on either production or deployment. I should like to know whether the noble Viscount has something to say on this matter. I think that my noble friend, with whom I sometimes disagree, is right to question this matter in this way. Cruise missiles, as carriers of chemical warheads, can be very dangerous indeed to all.
Viscount Trenchard: My Lords, I would draw the attention of the noble Lord the Leader of the Opposition to my Answer on 18th February—I have the feeling that the noble Lord was in the House but I may be wrong—that the United States has, in fact, confirmed that it intends, against the balance that I have mentioned, to start certain developments and particularly they involve ordering long-lead items. That is all. No decisions have been taken on deployment of any kind, and before they are taken, consultation has been promised.
Lord Boyd-Carpenter: My Lords, can my noble friend confirm that all experience, including that of the last war, is that the vast Russian stock of these horrible weapons is much less likely to be used if those who

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control them know that their use would produce retaliation in kind?
Viscount Trenchard: My Lords, it is, indeed, that thinking that has driven our American allies to the very modest step of ordering certain long-lead items as a back-up for efforts at discussions as regards which we wish them well.
Lord Avebury: My Lords, is the Minister aware that persistent reports have been reaching the West of the deployment and use of chemical weapons by the Ethiopian armed forces backed by the Soviet Union in Eritria, and that evidence of this has been sent to the Foreign Secretary on more than one occasion over the last 18 months, but that the Foreign Secretary and the Ministers in his department simply say that the ambassadors of the western nations in Addis Ababa do not have conclusive proof of the deployment of these weapons? Therefore, will not the Minister take on board the suggestion made by the noble Lord, Lord Brockway, that the United Nations should be invited to set up an international commission to examine the deployment of weapons of this kind in Kampuchea, Afghanistan and Eritria?
Viscount Trenchard: My Lords, we are indeed taking part in an investigation in relation to the use of chemical weapons in the Far East. I promised the noble Lord, Lord Avebury—at least I think I did—an answer in relation to Ethiopia which I have not yet sent him, but which I have called for and will send him.
Lord Orr-Ewing: My Lords, will the noble Baroness the Leader of the House look at the phrasing of this Question, because it would seem that this is a formula which would allow the Order Paper to be used and Questions to be asked on anything which is written, broadcast, televised or disseminated by any process? Can it be in the interests of the House to draw attention to matters for which Her Majesty's Government have absolutely no responsibility at all and would always stand back from—"Panorama" programmes or any other televised programmes? Could my noble friend look at this matter? I would not ask for a decision now. However, I am not sure that this is in the interests of the House because it opens Question Time and the Order Paper to a lot of erroneous and inaccurate statements being made which may be believed outside?
The Chancellor of the Duchy of Lancaster (Baroness Young): My Lords, the whole question of the framing of Questions for the Order Paper is, I think, governed by the wording of Questions and Motions as set out in the Companion to Standing Orders. I think that it would be very difficult to show that in this particular Question there was any reason why it should not appear on the Order Paper.
Quite a number of noble Lords are indicating that they wish to ask supplementary questions on this matter. Perhaps the noble Lord, Lord Paget of Northampton, the noble Baroness, Lady Gaitskell, and the noble Lord, Lord Mayhew, will ask their
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questions and then I suggest that we move on to the next Question.
Lord Paget of Northampton: My Lords, can the noble Viscount confirm that, in terms of lethalness, a cruise missile armed with gas would be somewhat less than 0·1 per cent. as lethal as one charged with a nuclear weapon—that is, nuclear weapons are at least a thousand times more lethal? Secondly, but most unfortunatunately, will the noble Viscount confirm that we have no control whatever as to what the Americans choose to put into their cruise missiles, even though they may be based here?
Viscount Trenchard: My Lords, so far as lethality is concerned in a hypothetical situation where no decisions have begun to be taken about deployment of weapons of a power which I do not think we have yet understood—I am referring to modern chemical weapons—I cannot answer the noble Lord's question. So far as the second part of the noble Lord's question is concerned, I would say once again that Her Majesty's Government are entirely satisfied that the American assurance on consultation before any deployment—assuming that by then no progress has been made on disarmament—will be entirely satisfactory.
Baroness Gaitskell: My Lords, is the Minister aware that a copy of this remarkable document is in the Library due to the kindness and courtesy of the Librarian? It is a transcript which he obtained for me and it is for any noble Lord in this House to see it there.
Viscount Trenchard: My Lords, I presume that the noble Baroness is referring to a transcript of the "Panorama" programme. I find that there is plenty of speculation in the media of every kind on every defence subject. I am finding that the vast majority of it has very little correlation with the facts.
Lord Mayhew: My Lords, will the noble Viscount agree that, in spite of the points that he has made, the competitive development and production of chemical weapons by the Russians and the Americans is a fresh and deplorable escalation of the arms race? Secondly, will the noble Viscount be more specific?—he referred in his reply to the fact that the Government are willing to support measures in suitable disarmament forums. Can he assure the House that the Government are going to take an initiative in a particular forum of a particular kind in order to try to check this arms race?
Viscount Trenchard: My Lords, Lord Mayhew's definition of an "arms race" or a race at all is, I think, different from mine. If your opponent is within 10 yards of the finishing post and you order a pair of running shoes and tell him that if he does not stop you are going to start chasing him, then I suppose that you can call it a race. That is the situation. As far as an initiation of disarmament talks is concerned, I am quite sure that my noble friend loses no opportunity whatever to initiate them. But as I have said so often in this place, I believe that most worthwhile initiations are not widely announced in advance.
Baroness Young: My Lords, I think that the House did agree that, after we had taken the last three questions, we should move on to the next Question.

London: Non-Domestic Rates Increase
3.59 p.m.
Baroness Lane-Fox: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what is the estimated increase of non-domestic rate burden in the Greater London Area for the financial year 1981–82.
Lord Bellwin: My Lords, the non-domestic rate burden in Greater London rose from £1.294 billion in 1980–81 to £1,706 billion in 1981–82, disregarding the supplementary rate issued by the GLC. The year-on-year increase in rate burden includes a gain in rateable value of 1.3 per cent.
Baroness Lane-Fox: My Lords, while thanking my noble friend the Minister for his Answer, disturbing as it is, I should like to ask him whether he is aware that the leaders of Labour boroughs in London have warned the GLC of the consequences of these substantial rate increases this year`? Would he not consider that the present rising trend could threaten chaos for London's jobs and industry of a kind favoured by the enemies of democracy?
Lord Bellwin: My Lords, I have seen the expressed concern of the London borough Labour leaders and, of course, I share that concern with them, as I do with my noble friend who asked the Question. As to what the effects of this will be, I would refer my noble friend to a survey carried out at the beginning of December by the London Chamber of Commerce, which was quite dramatic in its answer to those who said that increases of this kind in rates to the non-domestic sector is of little consequence in so far as it affects jobs. It affects jobs and employment very much indeed.

Travel Concessions (London) Bill
3.1 p.m.
Lord Bellwin: My Lords, I beg to move that this Bill be now read a second time. This is a very short Bill, but nevertheless an important one. It gives the Greater London Council power to pay for travel concessions for elderly and disabled people. The GLC is the only authority which does not have specific power for that purpose. County and district councils outside London were given this power under Section 138 of the Transport Act 1968. It was extended to London boroughs by Section 40 of the Transport (London) Act 1969, but not to the GLC.
Very soon after the passage of the 1969 Act, the London boroughs arranged for concessionary fares on London transport for their elderly and disabled residents. These arrangements were taken over and
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extended by the GLC, and London now enjoys one of the most generous concessionary travel schemes in the country for these categories of people. However, following the judgment in December in the case brought by the London Borough of Bromley, the GLC said that they would not be able to go on paying London Transport for these concessions. I should make it clear that the case had nothing to do with travel concessions for pensioners, and there was no reference in the judgment to the lawfulness of the present scheme. It was the GLC who said that they could not go on financing it. They have, in fact, been using their Local Government Act powers to spend the product of a 2p rate to maintain these concessions until now, but they have said that they are not prepared to continue doing so beyond the end of the current financial year. There are apparently other things on which they would rather spend their money.
The statements made by the GLC that the judgment threatened free travel were, therefore, thoroughly misleading. They caused a great deal of unnecessary alarm and anxiety for many people who enjoy the benefits. In order to allay these fears, my right honourable friend announced that he would introduce legislation to give the GLC the same powers as other authorities to finance travel concessions. These powers are quite separate from the GLC's powers to pay grants to London Transport under Section 3 of the 1969 Act, which were at issue in the Bromley case, and the GLC are not subject to the same financial duties under this Bill as they are in making grants under Section 3. This Bill will, therefore, put the GLC's powers in relation to travel concessions beyond question. It is for the GLC to decide how they use them. They have, in fact, made provision for some £50 million in their budget for next year to enable the present arrangements to continue.
The Government have made it clear to the GLC that, apart from bringing the GLC into line with other authorities on concessionary travel, no immediate legislation is needed to enable them to pay a reasonable amount of subsidy to London Transport. My right honourable and learned friend the Attorney-General has given his formal opinion that it would be lawful for the GLC to approve the revised budget put forward by London Transport for 1982.
That budget involves a very substantial level of support for London Transport from public funds, over and above the £50 million for travel concessions. London Transport will get in all a total in the region of £250 million for grants. London Transport expect to raise some £500 million in fares, so grants from all sources will amount to about 30 per cent. of London Transport's total income. There is also a hidden subsidy, because London Transport receives its capital funds free and, therefore, does not have to meet interest charges on borrowing for capital investment.
In addition, the GLC will have to raise an extra £125 million from the rates next year to make good the deficit incurred by London Transport in 1981–82. My right honourable friend offered to introduce legislation to enable London Transport to meet this accumulated deficit by borrowing in order to widen the options for making it good, but the GLC decided to pay off the whole amount next year by increasing their rate

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precept—in other words, by making London ratepayers make it up all in the one year.
It is regrettable that London ratepayers will still be faced with a very steep increase in the GLC precept next year, from 18·2p in 1981–82 to 34·85p, which is a rise of over 90 per cent. But for the Bromley case, however, the burdens imposed on London ratepayers would have been far heavier still. The extra cost of the GLC's policies would have been about £250 million next year, rising to over £400 million in 1985–86. In total, the extra cost would have been some £1,200 million over the life of the present council, which is, co-incidentally, about the same as the total amount of bus and rail subsidies for the whole of the country this year.
My right honourable friend has made it clear that he is not prepared to introduce legislation to enable the GLC to carry on their unbalanced policies. It is apparent from the evidence brought forward in the Bromley case that these policies were introduced without proper regard for the interests of ratepayers. That is particularly evident in the case of the elderly, with whom this Bill is particularly concerned. They received virtually no benefit from the new policies, yet over a quarter of the heads of households in London are elderly people, so they have had to meet a substantial share of the cost of the fare reductions, which were of greatest benefit to people who work in London, many of whom live outside the London area and do not contribute at all.
Moreover, the GLC did not stop to consider whether cutting fares across the board was the most effective way of spending money to improve transport in London. It was purely and simply political dogma rather than a transport policy. They have claimed that it improved productivity by increasing the number of passengers and, therefore, reduced the cost of carrying each passenger. It is an illusion to think that one can get something for nothing. In fact, the cost of running the system did not go down; it went up. It was really an expensive way of buying extra custom. On the GLC's own figures, it cost the ratepayers £1·40 for every extra journey on London Transport.
That is an incredibly high price to pay; so what benefits did the GLC expect to gain? They did not expect the policy to lead to a reduction of more than 1 per cent. in car traffic in London. Most of these extra passengers were probably public transport users making extra journeys. There were also probably a significant number who switched from British Rail.
The GLC have made a great deal of their concern to increase employment in London. But cutting fares is a singularly ineffective way of spending money from that point of view. Many of those who benefit are visitors to London or, as I have said, commuters from outside the London area. For those boroughs and others who are concerned about their ratepayers, this policy pressures their ability to provide other services. Furthermore, a large part of the cost is met by industry and commerce in London, and in the long run this is bound to lead to loss of jobs; so the overall effect is likely to be a net reduction of employment in London.
It is easy to criticise the irresponsible actions of the GLC, which have caused such turmoil in the operation
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of the capital's public transport system. But there are serious underlying problems which need to be tackled. The Government consider that it would be premature to try to deal with these by hasty legislation. The Government accept the need for a reasonable level of subsidy to maintain the public transport services, which are essential to the life of the capital. The Government are also in favour in principle of low fares. But the problems which have to be faced are, first, how to cut costs and improve productivity so as to minimise the need for subsidy; secondly, how much subsidy should be paid and who should pay for it; and, thirdly, how to ensure that these decisions are taken in a responsible way.
The cost of operating London Transport has been increasing faster than that of other comparable undertakings. Since 1970 the costs of the National Bus Company have risen by about a quarter, after allowing for inflation. The costs of municipal bus companies have risen by about a third in that period, whereas London Transport's costs have risen by a half. Instead of backing the efforts of London Transport to reduce costs, the GLC intervened to increase them. We now need to consider how to ensure that London Transport services are run better and more efficiently than in the past.
Lord Jenkins of Putney: My Lords, would the noble Lord give way on one point? The noble Lord, making reference just now to a decision of the GLC, said that it had caused turmoil. Is it not the case that it was a decision of the Law Lords rather than the GLC which caused the turmoil?
Lord Bellwin: No, my Lords; I do not accept that at all. The fact is that there was no turmoil, there was no problem of this kind in any way before the GLC made the decision which necessitated a reference to the Law Lords.
The cost of operating London Transport, as I said, has increased faster than in comparable undertakings. To the extent that lower fares cannot be achieved through greater productivity, the costs must be met by either ratepayers or taxpayers. Both may, with good reason, consider that they are already paying enough. The contribution by central Government, through the transport supplementary grant, fully recognises the special position of London as the capital city. In the coming year London will receive practically 40 per cent. of the total grant for the whole country, though it has only 15 per cent. of the population. There is no case for taxpayers outside London to subsidise London Transport still more in order to hold down fares in the capital. If the GLC want to widen powers to subsidise London Transport then it is up to them to say how a proper balance between the interests of ratepayers and travellers is to be preserved, and who will be the gainers and who will be the losers.
We also need to clarify the responsibilities for transport in London. At the moment there is an incredible confusion and there are signs of a breakdown in the relations between the GLC and London Transport, and we have the quite extraordinary spectacle of the chairman of London Transport calling for London Transport to be freed from the political control of the GLC. My right honourable friend has now seen Mr. Livingstone

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and will be seeing Sir Peter Masefield tomorrow to discuss the issues.
So far, the GLC have not attempted to address themselves seriously to dealing with the real problems of providing a stable basis for public transport in London. Instead they have launched an irrelevant and misleading publicity campaign at the ratepayers' expense. After they have themselves approved London Transport's budget for this year, and agreed to the fare increases due to take place later this month, incredibly they are actively encouraging the employees of London Transport to strike and to refuse to collect the new fares—which they themselves have agreed. And they are calling on Londoners to act illegally by refusing to pay the fares, I say again, which they themselves have approved. That seems to me to be the height of irresponsibility.
The Government greatly regret the need for the fare increases, but absolutely no purpose will be served by the strike which is planned for Wednesday. Nobody can gain from it. It has been brought about by playing on the fears of workers about job losses, I say again, in a totally irresponsible way. The GLC have talked about job prospects, service levels and fares, in a way that confuses the actions that are needed now to get London Transport's finances back on to a stable basis, with wild speculation about what may happen in the longer term.
The Government share the views of all those who want efficient services to meet London's needs, at reasonable levels of subsidy. The present Bill represents an essential step towards that end. I hope that it will now be possible to move from political campaigning to serious discussions. I should explain to your Lordships that the reason why the Second Reading of this Bill has been brought forward without allowing the normal interval after First Reading is that the GLC need the powers by the end of the month so that they can use them for the next financial year. I commend this Bill to your Lordships.
Moved, That the Bill be now read a second time.—(Lord Bellwin.)
3.14 p.m.
Lord Underhill: My Lords, of course we on this side of the House support this Bill in so far as it puts the Greater London Council in precisely the same position as local authorities outside London. I need hardly say that concessionary fares for the elderly and disabled are vital for the people of London. For every three passenger journeys by normal fare-paying passengers there is one concessionary passenger journey.
Following the legal judgment, concern was expressed about the situation of London's transport concessionary fares scheme. Ministers said that such fears were groundless and nonsensical. The Secretary of State said that it was alarmist talk. The Secretary of State also said that nothing would be gained and a great deal of unnecessary anxiety would be caused by demands for instant Government measures. But I was pleased that the noble Lord, Lord Bellwin, agreed that the GLC had advised the Secretary of State that in view of the legal ruling by the Law Lords it could not use its powers to subsidise London Transport to pay for concessionary travel because it was decided not to use
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the power of the 2p rate for that purpose. Therefore, something had to be done. It was not alarmist talk.
Now we have this Bill, which we welcome. We cannot consider this Bill without reference to the judgment, to the present position of London Transport, and the future. In fact, the Minister made clear in his speech that we cannot separate these aspects. The general position of grants towards public transport outside Greater London is dealt with in the Transport Act 1968. That for Greater London is dealt with in the Transport (London) Act 1969, and that was well dissected and discussed at the legal hearings.
There will be few Members in the other place, and few noble Lords in this House, who were here at the time of the passage of the 1969 London Act who did not believe at that time that they were providing for Greater London precisely the same powers as those in the 1968 Act for areas outside Greater London. If the noble Lord, Lord Marsh, who has joined your Lordships' House, were here, he would (I have a copy of his speech) be able to confirm that that is what he said in introducing the Second Reading in the other place.
Of course, judges must determine on the actual provisions of Acts of Parliament, and not on what is said by Ministers, not what is in Hansard of the other place, nor in the Official Report of this House. This is a point that I repeatedly stressed in relation to amendments that I moved to the 1980 and 1981 Transport Acts, but no notice was taken. I was told that one could trust Ministers, irrespective of what is written down in the Act, and I shall be reminding noble Lords of this when we reach the 1982 Transport Bill later on.
To paraphrase the judgment, the 1969 Act gave the Greater London Council power to make grants to the London Transport Executive, but this had to be subject to the undertaking being run with due regard to ordinary business principles, and the GLC had to give proper regard to the fiduciary duty to the ratepayers. What the Law Lords did not decide—it was not their position—is the level of grant support raised from the rates which will be within the fiduciary duty of any council. At what level do grants from rates impinge the fiduciary responsibility to ratepayers, and upset the balance between ratepayers and a particular group? Is not the determination as to the level of grant that is reasonable a political decision, not a legal decision, and is this not a matter which must be left to the elected representatives to determine?
I wonder what would have been the position of any legal challenge to the reconstruction of Waterloo Bridge? When Labour took control of the old London County Council for the first time in 1934, Herbert Morrison was tired of the delay and procrastination and he decided that the London County Council would tear down Waterloo Bridge and put a new bridge in its place—which is a credit to that administration—using the LCC's funds. I wonder what the position of that would be in the light of this present legal ruling?
Further, could not the issue of fiduciary duty affect the decisions taken by local authorities in other matters? To assist me in asking that question, I have with me the Statement of Mr. Kenneth Clarke, until a few days ago the Under-Secretary of State for Transport, who on 1st March in the other place said:
" In the GLC case, the Law Lords touched on fiduciary duty.

15
Among other things, their Lordships drew a distinction between the duty in relation to transport, which is essentially a trading service, and other social services. They applied a stricter test to transport than they might have done to other social services ".
In other words, it could affect a number of other local authority issues. I do not know exactly who has paid for the Barbican, but presumably it could cover the Barbican Centre, or the development of a huge council housing estate, or expenditure on a big park, although somebody might say that was unfair to the general ratepayers.
The then Minister went on:
"The fiduciary duty to the ratepayers is not statutory". (Official Report, Commons, 1/3/82; cols. 45–6.)
I am sure that that is a statement with which all noble Lords would agree. I have asked repeatedly what the criteria are for determining the level of grants, what subsidies can be paid. Again, Mr. Kenneth Clarke said on 24th February:
"We accepted the Revenue support for 1982–83 of a little over £89 million, which is nearly 5 per cent. more in real terms than we gave for 1981–82". (Official Report, Commons, 24/2/82; col. 937).
Who determined that that level of grant was lawful? When does an £89 million grant become lawful but a £149 million grant does not? The Law Lords never laid that down. Mr. Kenneth Clarke (I must keep referring to that former Minister because he did most of the talking on the subject) said on 1st March, only a few days ago:
"That"—
referring to the London Transport Executive's budget and the budget of the GLC—
"is a lawful budget. It is not cast in any doubt by the Law Lords' judgment. Because doubt continues to be expressed, we have gone to the extent of letting the GLC have the Attorney-General's opinion, which puts it beyond doubt that it is a lawful budget". (Official Report, Commons, 1/3/82; col. 44.)
Again I ask: what determined that it was a lawful budget? What are the criteria for determining such matters? I ask that because it is very important not just for the future of Greater London's transport but for the future of transport outside as well.
A leader in the Sunday Times on 20th December, soon after the judgment, said:
"It leaves it utterly uncertain"—
referring to the judgment—
"what, if any, subsidies to fares are legal, not only for the GLC but for every other transport undertaking. For this, the only remedy lies with Parliament".
It went on:
"For, like the present GLC or loathe it, the plain fact is that it was elected, more recently than Mr. Howell's Government, with a clear mandate for its cheap fares policy. Mr. Howell is entitled to refuse to finance that policy by cutting the Government's grant to the council, but he is unwise to seek actually to veto it by allowing the Lords' judgment to stand. The consequences, if he refuses to budge, could be serious".
On 18th December the Guardian made it quite clear that a new law was absolutely essential, and other journals made similar statements.
In recent days we have had the judgment of Mr. Justice Woolf in which he dismissed the application of Great Universal Stores that the supplementary rate levied for transport purposes by Merseyside Council was unlawful; and the grounds for the application
16
were precisely the same as those in the GLC case, except that Merseyside was acting under the powers given by the Transport Act 1968, which did not cover Greater London. The learned judge said that there was an absence of the word "economic" from Section 9(3) of the 1968 Act and that the general view of the executive had not been made especially subject to the financial duty. Should not the Government therefore put the position right so that the GLC is put in the same position as Merseyside and all authorities outside Greater London?
It cannot be said, as seemed to be implied in the Minister's opening speech, that London's fares policy was hastily conceived. It may be criticised, but there is no doubt that it was adopted by the Labour Party in London after considerable discussion, and a great deal of that discussion was brought before the public. There was actually a discussion involving the issue of the London fares policy some 12 months ago in the other House; throughout the election it was a controversial item; the electors knew it was a key issue; and it was actually featured in a television programme which I saw. Did anybody throughout the election period allege that the act proposed by the Labour Party in Greater London was unlawful? They may have said it was unwise but nobody suggested that it was unlawful. On the contrary, it was considered to be within the law. Since it came into operation, we have figures from the London Transport Executive to show that the use of buses went by up 11 per cent., and the use of the Underground by 7 per cent. An article in the Sunday Times on 13th January, under the heading, "Why nobody can win the fares war", stated:
"Transport in London has reached a level of chaos and public dissatisfaction that requires a complete change of direction if the problems we now face are to be solved".
It went on to point out that that was not a statement made after the Law Lords' judgment. It said:
"In fact, the sentence quoted above opened the transport section of a 150-page statement on Labour Party thinking written more than a year ago. It became the manifesto for the May elections. It was precisely to order the chaos and stem public dissatisfaction that cheap fares were introduced".
That is not me speaking; it is from an article in the Sunday Times.
Noble Lords will have noticed that the Minister, in what I would say with respect was an untypically aggressive speech, made this a political issue. My notes have scored out three paragraphs because I did not want to make this an aggressive speech; I was going to say that transport in London was a non-political issue, but after the noble Lord's speech I fear I cannot, and, in spite of what he said, on Saturday morning I shall be taking part in a demonstration to press the Government to act on restoring a sensible position in regard to London's transport.
The former Minister, Mr. Kenneth Clarke, allowed himself when closing the Second Reading debate in the other place to make a political attack on the GLC in general, not just on transport, and the issue is really what is needed for London's public transport. Why, in the United Kingdom, is transport in the capital and other major cities made the subject of political football? Other Continental countries deal with the matter more sensibly and there is little or no argument about the need to pay large-scale subsidies for public

17
transport. Indeed, the subsidy in London is much lower than it is in other capitals—a fact which has been agreed by Ministers in the figures that they have given—and in London more of the costs are met out of fares revenue than is the case for transport services in other parts of the Continent.
The need now is to clarify the position in Greater London. I have asked questions about the criteria, but up till now I have received no answer. I therefore ask this question: should the Government decide on the level of transport supplementary grant, how far could the GLC go—or, for that matter, any other authority—to take from the rates income monies to finance a low fares policy on which the council members have been elected and on which the council has made a democratic decision? Would such a course be unlawful? If so, can the Minister give me the legal references which would make it unlawful? If not, what is the legal restraint against the council?
Is there any assurance that payment of a grant for concessionary fares could not be held to be unlawful? Could not the fiduciary duty of a local authority be quoted even against a grant for concessionary fares? We must ensure that everything possible is written into the Bill to make certain that the legality of concessionary fares in Greater London is not to be challenged in law. It must be made absolutely watertight.
In conclusion, I would point out that the former Under-Secretary of State for Transport said on 1st March:
"We are prepared to look at the general law if and when we reach the stage where we feel that we are receiving serious representations on it from the GLC and the London Labour Party".
I am delighted to know that the Secretary of State has today met Labour leaders in Greater London.
In view of the references made to Sir Peter Masefield, the chairman and chief executive of the London Transport Executive, I should like to close my speech by reading from a statement which he addressed to the Greater London Council with his full report on a proposed budget for London Transport. Sir Peter stated:
"The Executive believes these measures "—
that is, the proposals for dealing with the situation—
"to be both in conformity with the present law and feasible, and stands ready to implement them. The result would, however, be to drive large numbers of passengers away from public transport.
"By the end of 1984, scheduled bus mileage would be reduced by one-quarter (mileage actually operated by one-fifth) and passenger miles by bus and Underground by one-quarter. Some people would not be able to travel at all, others would use cars and taxis and increase the general level of road congestion. Employers would be faced with higher London Weighting costs and increased wage demands".
Sir Peter continued:
"We have to say that this decline in the role of public transport in London would be against all international trends and could only be to the long-term detriment of the economic and social life and well-being of the capital city, and therefore of the country as a whole. London Transport therefore seeks the Council's support in endeavours to obtain changes in the law which would permit the level of financial support needed to maintain an adequate standard of public transport in London".
That is the statement that Sir Peter Masefield addressed to the Greater London Council. In welcoming the present Bill, which covers the one issue of concessionary fares, I urge the Government to cease making political
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capital out of London's transport and to get on with the job of putting the law in order.
3.33 p.m.
Lord Tordoff: My Lords, there is no doubt that your Lordships' House will this afternoon give an unopposed Second Reading to what I regard as a somewhat pathetic and puny Bill. I doubt whether a single voice will be raised against what is contained in the Bill, but there is no doubt that my colleagues and I believe that it is a totally inadequate measure. In a sense it is also an unnecessary measure, and a measure which stems from what I might describe as a clash of dogmatism. Dogmatism has been referred to from the Government Front Bench, and I would suggest that it is not all on one side of this argument.
In passing, I should like to refer to the fact that the Law Lords have been attacked from all sides, not within your Lordships' House, but outside, and that is something which I think we all deplore. It is their job to interpret the law as they see it. It is our job in Parliament to make sure that laws are properly enacted, and if we fail so to do, the blame should not attach to the Law Lords, who are doing their job, and who must be respected, because any other way would lead to anarchy and chaos in our country.
As I say, my Lords, the responsibility rests with Parliament to get the laws right, and in particular it rests with the Government to bring forward legislation to correct anomalies and to fill gaps in the law as it stands. That is what the Government should have been doing in relation to London Transport, in terms not just of concessionary fares, but of a much wider spectrum of problems that exist; and that the Bill singularly fails to do.
I do not think that today anyone will suggest that London Transport should be left to the free processes of market forces. I do not see on the Government Benches anyone who is likely to stand up and put forward that eccentric point of view, even on a subject such as this. However, perhaps some Conservative-controlled boroughs in the Greater London area might take that view. But at least the Government are now on the side of the angels and by putting forward the Bill at all they admit that they are prepared to intervene. But it simply does not go far enough. We are within a matter of days of public transport in this capital city being set on a course which could lead to its total destruction. It could lead to a decline in an already bad environment, to clogged roads, to further depopulation of our capital city and, indeed, to a loss of revenue through a deterioration in tourist traffic.
This is a serious problem, and it is a problem not only for the citizens of Greater London; it is a problem for the country as a whole, and it is a problem in particular for the whole of the South-East region. I say that because the transport problems of London are not confined to the City of London, Westminster, or even the GLC area. They go much further than that. At least the whole of the South-East region is involved. I do not want to give your Lordships a long lecture on regional government—that might come some other time—but there is a sense in which the GLC is not big enough an authority to deal with strategic transport planning for the region as a whole.

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We know the reasons for the opposition to cheap fares. They are twofold. First, some ratepayers are unable to use services because the London Transport services do not reach into their part of Greater London. I am talking here, as the Minister did, of those people who travel on the commuter services of British Rail, and surely that factor has to be included in the total package if we are ever to get a solution to the problem. The other reason is that there are many users who do not in fact pay rates, such as tourists, and people who live in other parts of the country and who come here and use London Transport because it is part of the capital city. It is the sense of unfairness on both sides that makes the equation so difficult to balance.
I believe that the first mistake on the part of the GLC was to go for so dramatic a reduction in fares in such a short period of time. The second mistake was to try to recoup the cost from the rates. The truth is that on all sides we need a much less dogmatic approach to the problem. We need a smaller degree of hyperactivity on the part of the GLC and, if such is possible, a lower degree of inactivity on the part of the Government. Neither the one nor the other offers a solution to this extremely complex problem. Indeed, when we look at the long-term situation we see that we might well be faced with a totally different demand over a period of 10 or 15 years; during that time the whole pattern of office usage in London, with the advent of the micro-processor, might undergo a complete change, which might mean that people will not come into large offices in the centres of this and other cities. But we simply cannot wait for that development to solve a problem which is immediate and which, as I say, is within a matter of days of hitting us.
The Government really must recognise that the problem will not go away. Making rude noises about the GLC will not make it go away. I believe that they must act—and act soon. It may be that some stop-gap measures have to be introduced, but I hope that in his winding-up speech the noble Lord will say more than he said in his introductory remarks, which I found extremely depressing. If not, I warn the Government that within a few years people will say of London Tranpsort what I fear I have to say about this Bill today: It is all right so far as it takes us, but it takes us hardly anywhere at all.
3.40 p.m.
Lord Mishcon: My Lords, this House is a very tolerant place. There is a Bill before us at the moment which deals with a couple of Acts of Parliament and certain narrow sections; namely, Section 138 of the Transport Act 1968, which allowed the shire counties to make provision for the elderly and the disabled, and Section 40 of the Transport (London) Act 1969, which extended that power to the councils of London boroughs and the City Corporation. The Greater London Council, as we have been reminded, used its 2p rate provision to deal with these matters before; has decided that it has many duties to perform which may well have to be performed out of that 2p rate; and that in any event certain legal advice it has received makes it doubtful as to whether the 2p rate user would be proper having regard to the House of Lords decision. So this Bill, we are told, comes before us, as it came before
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another place, in order to enable the GLC, without any doubt, to do what the shire counties have been able to do and the boroughs of London and the City Corporation.
There, one would have thought, the Minister might have left it. But quite properly, in my view, in one sense, and quite improperly in another, he himself has extended the whole area of this debate by pouring an onslaught of abuse on the Greater London Council, its policies, its irresponsibilities, its leaders, what it has done with finances and so on. From that point of view it was not a very proper exercise, in my view, and hardly lends dignity to the Government's case on this Bill. Where it was quite proper, in my view, is that it is quite absurd to treat this one little Bill as being a contribution towards a solution of the very drastic problems of London Transport.
I have only three points to make, and I hope to make them fairly briefly. The first point I want to make is that if it be a fact that there is an imprimatur of trusteeship for ratepayers upon any expenditure of rates under statutory powers, is the Minister sure on the best legal advice he has obtained—is he sure beyond a peradventure—that in regard to the usage by the Greater London Council of the powers under this Bill for the elderly and disabled, that user, too, is not imprinted with the need to observe a fiduciary relationship to the ratepayers of London? if it is so subject, could he please inform the House, as my noble friend Lord Underhill was asking, what really are to be the criteria in the way of the Greater London Council—we are talking only about the Greater London Council, but it would apply to other local authorities—for the user of these essential powers in supplying an economic and decent system of transport for the aged and the disabled?
So that is the very first point I make. It is an important point because if the Greater London Council and the public are being misled into thinking that this is an unconditional, unfettered power, then of course it would be a very wrong thing. If there is no doubt about the situation and it is an untrammelled power to use this benefit for the elderly and disabled, then I am sure we would all appreciate it if the Government were to say so.
My second point is the one with which I tried to open and which other speakers have mentioned, and that is the whole question of this not being an isolated matter that one can deal with in regard to London Transport. The noble Lord, Lord Tordoff, I think was responsible this afternoon for an extremely sound and (if I may be allowed to say this without being patronising in any way) extremely eloquent and well-delivered speech, and in the course of it he dealt with the whole importance of London transport, the transport of the capital city. I should like to embroider the point that he made so well, and I hope in doing so not to ruin the texture of it.
But it is a fact, of course, that the whole question of London transport and the transport of the capital city, and the fares of that London transport, have an effect upon housing, the effect upon the housing of its citizens quite obviously being that if fares are so expensive that they cannot afford to travel to the areas that need employment then it is of great importance as to where the housing takes place. It also has the effect that I have just hinted at on employment, and

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it has an effect upon our tourist trade. In London we are fast becoming not a very attractive place from the point of view of economical living, economical hotels and economical entertainment. At least it would be an attraction if our public transport system in London were known throughout Europe and, indeed, the world as being a transport system which was efficient and cheap.
It goes beyond that. It has an effect upon the whole governmental policy in regard to inflation, because, quite obviously, an increase in fares is one of the essential ingredients in a wage claim; and this, too, is going to force up wages. So it is a very important matter that one is dealing with when one is thinking in terms of London Transport and fares.
My third and last point is this—and for me it is a very sentimental point. There is no justification at all for the noble Lord the Minister to address this House as though every single problem of London Transport can be met by the one question, "Mr Livingstone, I presume?". I say this is a sentimental point for me because this is not a problem that arose since the present GLC came into power. Back in 1955–27 years ago—a departmental committee was set up to deal with the problems of London Transport. It was an eight-man committee which was chaired by a very eminent gentleman, unfortunately no longer with us, Sir Paul Chambers, who at that time was the deputy chairman of Imperial Chemical Industries and who subsequently became their chairman. Among the other seven members of the committee, the humble Lord who addresses your Lordships now was included.
I took the trouble to look at the recommendations of that Committee on London Transport that sat and reported more than 20 years ago. I wonder whether your Lordships will bear with me as I quote from just a few of the recommendations then made, and may we all reflect upon the words of the old and somewhat sad song, "Will they never learn?". I quote from paragraph 391 and onwards:
"Some of the most important and most effective of the suggested measures, including those relating to traffic congestion, involve decisions and heavy capital expenditure by authorities other than the London Transport Executive. Others, including those relating to maintenance costs, involve internal action by the London Transport Executive itself. These measures are all the more urgent because of the unsatisfactory financial position of the undertaking. London has one of the best passenger transport systems in the world. It is served by a body of workers of all grades who have a fine tradition of loyalty and public service. If, however, steps are not taken to improve the external conditions in which London Transport operates and if certain internal reforms are not made there is a serious danger that the standards of efficiency will decline and costs will rise with an inevitable reaction upon fares".
Paragraph 394 says:
"The standard of service provided by London Transport is high except for (a) acute overcrowding at a number of points during peak hours, (b) poor interchange facilities, and (c) some irregular and slow running of road services which pass through congested streets".
The report might have been written yesterday and the noble Lord might have acccompanied the very eminent Minister of Transport in discussing these very topics this morning with the leaders of the Greater London Council. I could go on reading from the passages of the report but I shall bore your Lordships if I do so. They deal with the contribution the Government could make by way of example to the nation in
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trying to get rid of traffic congestion and the costs and the competition between public and private transport which result if only they managed in their own Government departments to stagger the hours of employment so that the peak hours did not lead to an over-abundance of transport staff which have to deal with the peak hours and are not necessary for other hours, quite apart from the transport itself which has to be supplied.
As I have said, we are not dealing with a new problem; we are dealing with an old problem. There is no point in the Government throwing offensive remarks at the Greater London Council as though these problems were created only yesterday. What is required and what the citizens of London require and expect at this moment is that, instead of a Minister delivering a speech full of invective, the Government sit down in sanity and without trying to make political propaganda with the heads of the Greater London Council, with the heads of the London Transport Executive and forgetting for a moment (if they like) manifestoes and documents which might be sent out by one party or the other, and try to deal practically, sensibly and humanely with a problem of the capital city and its machinery of transport which is of such vital importance not only to London but to the nation as a whole.
3.53 p.m.
Lord Bellwin: My Lords, I fail to appreciate how, when faced with the kind of "politicisation" (if there be such a word) that we are faced wtih in this matter, the Government, and least of all, I, can be accused of becoming involved in political attempts to raise the temperature—and I think that was the implification of what noble Lords opposite have said. Let me try to get this back on course. One of the clear difficulties in dealing with subsidies for transport is that they can get out of hand. London Transport expect to have direct running costs of over £700 million next year. It is very easy for subsidies to escalate rapidly when costs go up, even without cutting fares. When control of a local authority changes hands, it may be tempting for a new council to make a dramatic shift in policy and to increase expenditure very sharply, much more quickly than would be possible with a service like education. That was the experience that faced the last Labour Government. I will not hold up your Lordships by going into that.
The whole nub of the problem, the financial aspect, seems to me to be to maintain a balance, to provide enough subsidy to support an adequate level of service and to meet the needs of travellers without imposing too heavy a burden on ratepayers and taxpayers. My right honourable friend gave his view of what is a reasonable level of support in his transport supplementary grant settlement. It is for the GLC to take their own view on whether a different level would comply with the law. But there can be no question of giving the GLC unfettered power to pay as much subsidy as they like without taking account of the interests of their ratepayers. They have a discretion but they must use it responsibly. They seem to be making heavy weather of this.
The only way of achieving complete certainty would be to introduce legislation enabling my right honourable

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friend to specify by how much they are allowed to spend. I am not sure that that is what they would want. In fact, I am sure it is something they would not want. One could talk at great length on what has been said and, clearly, there is a strong difference of opinion in this matter between noble Lords opposite, certainly, and the Government. I think that however much one tries to turn away from the fact that there are strong political currents running throughout this situation, it is not possible to do so. I quote a London Labour councillor in a local newspaper as saying:
"There is also a slight suspicion that the GLC at a political level is happy to have the worst possible result to give them a greater platform to campaign from".
Mr. Wetzel, the chairman of the GLC's transport committee, is reported to have said in Time Out:
"The judgment has given the Labour Party the best spur we would have hoped for before the local elections next May… We are going to spent £250,000 on a campaign. It's a real fillip for us—the best thing that could possibly have happened".
That is what he said and I think it puts it in perspective.
Lord Mishcon: My Lords, I hope that the Minister could rise above such a perspective. Instead of quoting remarks which may be in the right context or in the wrong context, I hope that the Minister—and I am asking him a question—will consider the advisability of introducing into his speech words of conciliation and arrangements for joint planning; because, as I repeat, the citizens of London are fed up with the politics of this and they want a decent transport system.
Lord Bellwin: My Lords, I rather think that that is coming it a bit. If I had been in my former incarnation I would have answered the noble Lord more vigorously than I am expected to in this House. If we want to get it on the level he speaks about, let me make three other quotations from the Law Lords—and this is really the nub of what the noble Lords opposite have said about this matter of the criteria, the fiduciary duty. Lord Justice Oliver said that the fiduciary duty was owed:
"not simply to electors but to the whole body of ratepayers including a large and important number who have no voice at all in choosing local councillors".
The noble and learned Lord, Lord Wilberforce, said:
"Once it became apparent"—
the fares reduction—
"that the ratepayer's burden would be approximately doubled, the council acted in breach of its fiduciary duty".
The noble and learned Lord, Lord Scarman, although still alluding to the decision to make the 25 per cent. fare reduction, added that this was:
"not a reluctant yielding to economic necessity but a policy preference. In so doing, the GLC abandoned business principles. That was a breach of duty owed to the ratepayers and wrong in law ".
My Lords, I think I should refer to what the noble Lord, Lord Tordoff, said. With respect, I did not think his contribution was as helpful as did the noble Lord, Lord Mishcon. Lord Mishcon said:
"The Government must act".
He said:
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"The problem will not go away".
But what he did not say was what ought to be done about it. He referred to market forces as being,
"an eccentric point of view".
He might like to know that in Tokyo most of the public transport is in fact carried out by the private sector. He also said the GLC's mistake in its fares policy was to try to recoup the lower fares by charging it to the rates. He did not say where else it should be charged to.
There it is, my Lords. We seem to have got off on an unusual tack for us in this House, but it has to be recognised that feelings run very deeply and there is much more to it than the simple point of view of this one issue which is the subject of the Bill. I absolutely concur that it has been right to broaden the discussion. Clearly, your Lordships are going to agree that this Bill should go forward. Like the noble Lord, Lord Mishcon, I am hoping that there will be discussion, that there will be joint consideration of the problems and that there will be an attempt somehow for those involved to help to find solutions in a way that is acceptable.
It is a major problem and the fact that the noble Lord, Lord Mishcon, was dealing with the same problem 20 years ago confirms that it is an old one and it will not go away and it tends to deteriorate because of the increasing enormity and scale of it. So I agree with him on that. It is a pity I could not agree with much more of what he said, but that is not the first time. I hope that your Lordships will agree that this Bill should go forward.
Lord Underhill: My Lords, before the noble Lord sits down, may I ask whether he can possibly give some information about the criteria? This must be about the twelfth time that I have asked. When does a figure become lawful and at what level does it become unlawful? There must be an answer to this because otherwise we are in an impossible position.
Lord Bellwin: My Lords, that is exactly what I was trying to do in what I was saying. I was in no way trying to belittle the difficulty of coming to that conclusion. But as the courts would say about everything, what is reasonable? What is the burden that the taxpayer, the ratepayer and the traveller should pay? If you come to a conclusion which is patently reasonable to everyone, then I would have thought that was the criteria. Beyond that, no one can go.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Coal Industry Bill
Brought from the Commons; read a first time, and to be printed.

Administration of Justice Bill [H.L.]
4.4 p.m.
The Lord Chancellor (Lord Hailsham of Saint Marylebone): My Lords, I rise to move that this Bill be

25
now read a second time. When I obtained leave to introduce it and read out the long title, a witty Peer from the Liberal Benches rose and asked whether it was intended to substitute this one measure for the entire statute book.
This sally was well received by the House, and rightly so. But I must begin by explaining that this is almost the opposite of what I am seeking to achieve. Law tends to need darning from time to time, like old socks; and, despite its monstrous long title, its nine Parts, and its 69 clauses and its seven schedules, this is essentially a darning exercise, intended to carry out a very large number of relatively small reforms, all, in my judgment overdue, none, I hope, highly contentious, and certainly not from the party political point of view. It is intended to be a measure of good legal housekeeping. But I have set my heart, such as it is, on getting it, and my colleagues have kindly consented to my receiving a slot in their already overcrowded legislative programme but only on condition that I can persuade another place to carry it through on Second Reading procedure.
It has already been shown informally in its present form to their legal representatives, and I am informed that they have generously given a sympathetic response to my humble request and I am grateful to them for it. But this does place limits on the extent to which I can propose or accept amendments, and I hope that noble Lords in this House will be sympathetic and understanding. In particular, I shall not be able to use it as a vehicle for carrying controversial hobbyhorses of any kind. In the battle for parliamentary time, the Lord Chancellor's Department is often the loser. Like the Pope, we have but few divisions, and the acres of print we occasionally require for our measures do not normally excite much political sex appeal. The only effect of trying to insert controversial clauses, even if meritorious, is that maybe we shall lose a valuable measure of law reform.
The Bill naturally falls into two halves. The first contains law reform proper, the second what I might describe as technical but necessary amendments or adjustments to the judicial process. I can succeed in carrying out these improvements by consent alone. So I now turn to the first half. The law reform proposals in the Bill come from a number of different sources. Indeed, their origins are illustrative of the way in which nowadays we go about the business of law reform. It is generally accepted that the work of the two Law Commissions, set up some 16 years ago, very largely on the initiative of the noble and learned Lord, Lord Gardiner, has led to a regular and very beneficial flow of law reform which would not otherwise have seen the light of day. Their contribution is substantial and I am always anxious to do as much as I possibly can to ensure the implementation of their reports wherever these are found acceptable. This is important if the morale of the commissions is to be sustained, and the quality of their membership kept at its present distinguished level.
Proposals emanating from the two commissions form the basis of much of Parts I and II of the Bill and some of Part III. There are times, however, when pressing problems arise in the legal field which are not necessarily suitable for a reference to one of the Law
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Commissions. In such cases a body drawing on wider membership or experience is required and the Government of the day will then decide on setting up a Royal Commission. The concern which was expressed following the thalidomide tragedy 10 years or so ago, together with other matters, was such an example. It led to the creation of the Royal Commission of which my late noble and learned friend Lord Pearson was the chairman. I was very largely responsible for its appointment, and I should like very much to be midwife to some of its proposals. Its deliberations resulted in a lengthy report, on much of which decisions remain to be taken. But however, Parts I and II of the Bill do effect some important Pearson recommendations and, in relation to England and Wales, subsume some of the earlier work of the Law Commission. I believe the changes will be generally welcome and represent worthwhile improvements.
Finally, your Lordships will find in Part IV of this Bill the results of the work of yet another kind of law reform agency—this time the Law Reform Committee which advises me on more technical matters which are referred to it. The Law Reform Committee has been in existence since 1952 and was the successor to the old, pre-war, Law Revision Committee. It consists of judges, barristers, solicitors and academic lawyers under the chairmanship, at present, of my noble and learned friend Lord Scarman. The recommendations of two of its recent reports on wills are contained in this Bill, thus confirming the wisdom of the decision to leave this committee (and its cousin the Criminal Law Revision Committee) in being when the Law Commissions were created. There is, as your Lordships will appreciate, a place for law reform by a highly qualified full-time professional body like the Law Commission as well as for a substantial part-time contribution in matters of pure lawyers' law.
I now turn to the Bill itself. Parts I and II are concerned with damages for personal injuries and death. Broadly speaking, they contain for England and Wales and Scotland respectively certain recommendations of the Pearson Commission which, in relation to England, endorse the Law Commission's Report on Assessment of Damages, published as long ago as 1973. Your Lordships will recall that I told the House in the debate on the Motion of the noble Lord, Lord Allen of Abbeydale, on 20th January, of the conclusions which the Government had reached on these. I mentioned, in particular, that the Pearson recommendations on periodic payments and the modified multiplier had, after extensive consultation, not proved acceptable. On the other hand, the Government have not yet taken a final view on the recommendation for full offsetting of social security benefits against damages recoverable for personal injuries. This is a proposal which is currently being canvassed in the White Paper on the Industrial Injuries Scheme. But in Part I of this Bill, the Government are accepting a group of Pearson recommendations which will get rid of certain obsolete or unnecessary rights of action, remove important anomalies and introduce changes of particular benefit to plaintiffs. It may be helpful for the House if I were to mention the main changes which will result from Part I, clause by clause.
Clauses 1 and 2 abolish certain claims for damages or rights of action. Clause 1 abolishes damages for

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loss of expectation of life but provides instead that, in assessing damages in respect of pain and suffering caused by the injuries, the court shall take account of any suffering caused or likely to be caused to the plaintiff by awareness that his expectation of life has been reduced. This will, in effect, abolish what is often called the conventional award for loss of expectation of life—currently about £1,250. This is regarded as being of little financial significance and has often been criticised as derisory in respect of the deaths of husbands, wives and children. I should make it clear that this does not affect any claim by a living plaintiff for damages for loss of income where his life has been shortened.
Clause 2 abolishes a number of archaic actions for loss of services, and thus completes a process begun by the Law Reform (Miscellaneous Provisions) Act 1970. There is no longer any place for an action on behalf of a husband for being deprived of the loss of services or society of a living wife as the result of injuries suffered by her or for the benefit of a parent on the ground of his having been deprived of the services of a living child. In the same way, an employer's right of action in respect of loss of services of a menial servant, of the rape or seduction of a female servant in his employment or of the enticement or harbouring of an employed servant, will be abolished. The House, I hope, will recognise that there is an anachronistic, even proprietary, flavour about these actions, and they ought to go.
Clause 3 introduces three important changes in the Fatal Accidents Act 1976 and, in doing so, replaces the text of the first four sections of that Act. The first change replaces the old Section 1 with a new section and increases the range of dependants who may bring an action in respect of fatal injury. In future, those able to claim will include all ascendants and descendants of the deceased (instead of merely parents, grandparents, children and grandchildren), former spouses and any person treated by the deceased as his child.
The second, and most important, change in the fatal accidents clauses will be found in the proposed new Section IA of the 1976 Act (now part of Clause 3(1) of the present Bill). This will introduce a new claim for damages for bereavement and, on this, I owe the House a rather fuller explanation than on the other provisions of this Part. The proposal in the Bill follows the Law Commission's recommendation of 1973. It will give a fixed sum by way of damages to a spouse for the loss of the other spouse and to parents for the loss of a child. The amount is fixed by the Bill at £3,500 but would he capable of being increased by order.
In deciding that this was the right approach, the Government have rejected the somewhat broader proposals that appeared in the Pearson report, which recommended a right to damages for loss of society, which would have been available also to children for the loss of a parent and which would have been tied to a figure of one-half average industrial earnings. I should add that we are not following the provisions which since 1976 have been the law in Scotland and which allow the courts a discretion to award damages for loss of society, unlimited in amount, to the same
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class of beneficiaries as the Pearson recommendation.
Personally, I believe that no monetary sum can adequately compensate a person for bereavement and I speak, as the House will remember, not without bitter experience of these things. It is for this reason that I think the award should be of a conventional, fixed kind available only in limited circumstances. My present view is that it should not be available to an unmarried minor child in respect of the loss of a parent because, following the minority report in Pearson, such a child is already likely to receive substantial dependency damages in any event. Bereavement damages can add little or nothing to that and I think there are telling reasons for adopting a simple solution of the kind that appears in the Bill.
The third change in the Fatal Accidents Act would require the courts to disregard all benefits coming from the estate of the deceased in reduction of damages payable to a dependant. This is now a relatively small change. In recent years many benefits, including the matrimonial home, are already disregarded.
Your Lordships will find in Clause 4 the other significant change in the law of damages. In effect, this reverses the decision of your Lordships' House in its judicial capacity in Gammell v. Wilson. In that case, the House felt itself compelled to decide, but with great reluctance, that a claim for the income which would have accrued to the plaintiff during the years of his life that have been lost, survives for the benefit of his estate. This has meant that, in some circumstances, a defendant has had to compensate not only the dependants who may have a claim under the Fatal Accidents Act but also the estate. This element of double compensation is unacceptable and Clause 4 puts that matter right. I should emphasise that it does not affect the right to damages payable to a living plaintiff in respect of the lost years' income.
Clause 5 deals with a very minor matter. It prevents another case of double compensation. Any saving to an injured person attributable to his maintenance wholly or partly at public expense in a hospital or other institution will be set off against any lost income as a result of his injuries already compensated by way of damages.
Clause 6 is of greater moment. It introduces a new procedure for provisional damages on the lines recommended by the Law Commission and endorsed, in general terms, by the Pearson Report. What is proposed is that the courts should be empowered to make a provisional award in cases where the medical prognosis is particularly uncertain and where there is a chance, falling short of probability, that some serious disease or serious deterioration in the plaintiff's condition will accrue at a later date.
One might, for example, have a case where the plaintiff's sight is impaired as a result of an accident at work, but not so badly as to deprive him for the time being of his livelihood. In such a case, however, the medical evidence may point to a possibility of his actually going blind within the next five years. A similar example might be that of a young child whose skull has been fractured in a motor accident. The recovery may appear to be complete by the time the case is heard, but the prognosis may include a slight (if diminishing) possibility of epilepsy. In cases of this kind, under the existing law the only remedy is

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inadequate. The plaintiff may apply for what is called a "split trial"; that is to say, a trial of the issue of liability first (when recollections are relatively clear) and an assessment of the damages later (when the prognosis can be, but is not always, more definite). But under the existing law, when it is made, the award is an award made once and for all.
Consequently, in the two examples I have given, if at that stage the evidence is that there is, say, a one in 10 chance that the plaintiff may lose his sight completely or become epileptic, the judge must award him one-tenth of the damages that would be awarded if there were not a mere chance but a certainty of the danger coming to pass. This method has the advantage of achieving finality (which is often as important to the plaintiff as to the defendant) but I must describe it as extremely crude. It means that if the chance event never happens, the plaintiff is overcompensated, but if it does happen he is under-compensated, sometimes to a very high degree. In other words, in either event the award is bound to be wrong.
The purpose of Clause 6 is to make it possible for the court to take a different approach, to wait and see; that is, to award nothing in respect of the feared event but to give damages for what is known, and then to allow the plaintiff to apply for damages later if the feared event actually takes place. In all other respects, the award is, of course, perfectly normal. I do not imagine that this procedure will be employed very often. It will not be invoked unless the plaintiff wants it and the court is satisfied that this procedure will not cause serious prejudice to the defendant. It will, therefore, be comparatively rare, but in those cases where it is used it will he manifestly fairer to both parties than the existing rule.
So far, I have been dealing with England and Wales and Northern Ireland. I now timorously venture north of the Tweed, though on the Committee stage I hope that I shall be assisted by my noble and learned friend who occupies the Front Bench as Lord Advocate. The content differs considerably in part, due to the fact that a number of improvements in this area have been secured for Scotland by the Damages (Scotland) Act 1976. Part II therefore covers—with that qualification for Scotland—much the same area of damages as Part I does for the rest of the United Kingdom. The Scottish Act of 1976 carried into effect the Scottish Law Commission's Report No. 31, which was published in 1973. The commission's continued involvement in this field is now evident in the provisions of Part H of the Bill.
In general, the clauses follow recommendations made in the Scottish Commission's Report No. 51, which was published in 1978, in which the recommendations of the Pearson Commission on claims for services and admissible deductions were reviewed. Where the Scottish Commission has suggested any modifications to the approach advocated by the Pearson Report, the Scottish recommendations have been preferred in the clauses which are now before your Lordships. This is the case, for example, with Clauses 8 and 9, which provide for an injured person to recover compensation for necessary services given to him by a relative, or for any loss of ability on his part to render services to members of his family. Clause 10, which lists
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payments to be received by the injured person which should or should not be taken into account by the court in assessing damages, also reflects the further consideration given to the Pearson recommendations by the Scottish Commission.
Clauses 11 and 12 are prompted directly by Pearson recommendations and have not benefited from any commission consideration separately made. Clause 11 is essentially the same as Clause 5 in Part I, and provides that maintenance at public expense will be taken into account in assessing damages. Clause 12 corresponds to Clause 6 in Part 1, which gives the court power to award provisional damages. Clause 13 provides for the interpretation of the terms employed in Part II. Clause 14 further demonstrates the close interest taken by the Scottish Commission in this field, because the repeal of Section 5 of the Damages (Scotland) Act 1976 was prompted by its Report No. 64, which was published as recently as April 1981. This concluded that the means of avoiding a multiplicity of actions set out in the Act proved rather unwieldy and the problem could be accommodated more satisfactorily by rules of court.
After my excursion into Scotland, I now return to England and Wales. Part III amends the law regarding awards of interest. Clause 15 and Schedule 1 enlarge the powers of the High Court and the county courts to award interest on debts and on damages. The most serious defect in the existing law is that, by paying his debt at any time between the commencement of proceedings and the giving of judgment, a debtor escapes having to pay interest at all. This is because the court has no power to award interest except on a judgment, and then only in respect of the sum for which judgment is given. This situation has been criticised strongly by the Law Commission—see their Report No. 88 on interest—and by the noble and learned Lord, Lord Denning, and others in a case called Tehno-Impex last year. Part III solves the problem by enabling the courts to award interest on any debt outstanding when the writ is issued from the date when it should have been paid down to the date of judgment, or, if paid before judgment, down to the date of payment. This should remedy what I regard as a serious injustice.
The other provision in Part III is Clause 16. This is not concerned with debts or damages, but with orders for lump sum maintenance and interest thereon. It often happens, particularly when the court is trying to bring about what is now called a "clean break" on the dissolution of marriage, that an order is made for one party to pay the other a lump sum by way of maintenance. If the capital is already available, there is no problem, of course, but often it cannot be paid immediately but only by instalments or by payments out of the proceeds of sale of the home, or both. In this kind of case, it would assist the court if an order could be made for the lump sum to carry interest at a rate fixed by the court from the date of making the order down to the date of payment, and Clause 16 so provides.
I turn now to Part IV. This brings into effect two reports of the Law Reform Committee—on the making and revocation of wills and on the interpretation of wills. It introduces one new proposal not emanating from the committee and it provides the legislative

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changes necessary to enable the United Kingdom to ratify the Council of Europe Convention on the Registration of Wills and the Unidroit Convention on the International Form of Will.
I refer first to Clauses 17 to 19. Your Lordships will see that they are all amendments to the Wills Act 1837. After 150 years, many of the provisions of that Act have been much interpreted by the courts and sometimes, I regret to say, the result has been to complicate rather than simplify the result. Sometimes anomalies have appeared or difficulties have resulted from changing social circumstances. The Law Reform Committee looked afresh at the way in which wills should be made and the circumstances in which they should be revoked. Clause 17 follows their recommendation in restating and simplifying the formal requirements for signing and attestation. Clause 18 deals with the effect on a will of marriage and divorce, which of course did not happen very often in 1837. The approach which is adopted restates, with some modifications appropriate to present day conditions, the well-established rule that a subsequent marriage revokes a will not made in contemplation of that marriage. The clause also introduces a new rule. Where the testator was divorced after making his will the appointment of his or her former spouse as an executor or any gift to him or her lapses. At present, divorce has no effect at all on a will and, thus, there can be unintended results where a testator who does not remarry fails to make a new will.
Clause 19, which does not stem from the Law Reform Committee's report, will deal with another, and much criticised, provision of the Wills Act, which is intended to save, for the benefit of a testator's grandchild, a gift in his will to his son or daughter who has, in the event, predeceased him. The original section of the Wills Act 1837 does not always work satisfactorily. In some circumstances, the gift may not go to the grandchildren but instead may be taken up in payment of creditors or go into the residual estate.
Clauses 20 to 22 bring into effect the Law Reform Committee's report on the interpretation of wills. This is a very technical field, and I shall not detain your Lordships in it for long. It is perhaps sufficient to say that Clause 20 extends the remedy of rectification to wills which will enable, in some limited circumstances, errors to be corrected so that the testator's real intententions can be carried out. Clause 21 replaces a good deal of complex case law on the interpretation of wills by a restatement of the principles and by allowing the introduction of extrinsic evidence to assist in the interpretation of a will. Clause 22 is designed to be of assistance where a home-made will may fail to give effect to the testator's intentions because a life interest is unintentionally created. Instead of this, a gift to a spouse will be presumed to be absolute.
I should now briefly mention the clauses which will enable the United Kingdon to ratify the Convention on Registration of Wills and the International Form of Will. Clauses 23 to 26 provide for facilities for the deposit and registration of wills in England and Wales, Scotland and Northern Ireland and the designation of the Principal Registry of the Family Division in London as the national body through which wills may be registered in other contracting states and which will answer requests for information from those
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countries about wills registered in the United Kingdom. Thus it will be possible for testators to take advantage of a system for the safe deposit of wills, while inquiries as to the position of any will deposited in any of the other contracting states will be facilitated. This will make life easier for executors, beneficiaries and others involved in the administration of estates. Clauses 27 and 28 establish a procedure whereby wills which comply with certain requirements of the convention on the form of international will will be recognised as being formally valid in any of the contracting states. The form of the international will is set out in Schedule 2 and any will made in accoradnce with that form will, in any event, be valid under our domestic law.
So much, my Lords, for the law reform proper. Now for the minor adjustments. Part V of the Bill contains a number of miscellaneous amendments affecting county courts. Some are "useful but technical". One or two are intended to modernise features of county court life which, in the light of changing circumstances, now look a little odd. One example is Clause 30, which does away with the present requirement that a registrar must live within the district of his court. The clause to which I ought to draw attention, however, is Clause 35. This provides that certain county court judgments may be transferred to the High Court and enforced in the same way as High Court judgments. Your Lordships will no doubt know that county court judgments are enforced by county court bailiffs, who are members of the public service and answerable to the Lord Chancellor, while udgments in the High Court have always been enforced nominally by the sheriff of each county and in practice by the under-sheriff whom he appoints and the sheriff's officers. Many observers, especially members of the legal profession, have suggested that under-sheriffs are more effective in this respect than bailiffs. I say nothing about the effectiveness of under-sheriffs, but I must say that I myself have not seen evidence which really supports the case made by critics of the county court system. However, I have reached the conclusion, in deference to professional and public opinion, that under-sheriffs should be permitted to enforce a limited category of county court judgments. Last autumn, your Lordships will remember, the limit of county court jurisdiction was raised from £2,000 to £5,000. Although it will not appear expressly on the face of the legislation, I propose, if the clause finds favour generally, that the minimum qualifying limit for a judgment to be transferable to the High Court for enforcement should be £2,000. This as regards execution will allow the judgment creditor the option of invoking the sheriff's officer or the bailiff, according to which he prefers.
My Lords, Part VI of the Bill restates more concisely and in modern terms the main statute law controlling the management and investment of funds in court. It replaces the separate statutory provisions for funds in the High Court and the county courts now contained in Part I of the Administration of Justice Act 1965 and Part X of the County Courts Act 1959 with a single statutory framework for dealing with money held or paid into these courts. It also clears away the present detailed and restrictive legislation which the Accountant General has found in recent years to be too inflexible in conducting the investment of funds in court in modern

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economic conditions.
The two most significant changes made in this Part of the Bill are, first, that, while the essential framework of the legislation relating to the management of funds in court is retained, it is restated in the broadest terms and the administrative detail previously dealt with on the face of the statute will be contained in rules. Secondly, Clause 42 will enable the Lord Chancellor to authorise persons other than the Accountant General to hold shares in the common investment schemes which are currently managed by the Public Trustee. In particular, it will permit the Public Trustee to hold shares in these funds, and thereby to make use of the benefits of these unitised investments on behalf of the trusts of which he is the trustee. Your Lordships may remember that I answered a Question about this—I think last week.
Your Lordships will see that Part VII introduces some miscellaneous matters. There are a number of clauses headed "Family Law". All I need say at this stage, I think, is that they are purely of a minor "administration of justice" character; they do not have anything to do with the recent Law Commission recommendation on financial provision after divorce—nor could they, because that subject is outside the scope of this Bill. I shall, however, refer briefly to Clauses 53 and 54, which resolve some difficulties which have arisen in the working of the Attachment of Earnings Act 1971. Clause 53 fills a gap in the court's power to obtain information from the debtor about his employment and financial circumstances. Clause 54 is intended to eliminate the complications which may arise where a debtor is paid in advance—for example, because he is about to go on holiday—by ensuring an even flow of payments over the period in question. Clause 56 brings into effect a minor recommendation of the Oliver Committee, removing from the statute book the requirement for an annual audit of a judicial trustee's trusts and leaving it to rules to determine how this shall be done. Of the clauses on land registration, Clauses 59 and 60, one enables the process of computerisation at the Land Registry to be carried a step further and the other, with Schedule 4, simply clarifies the powers of county courts under the land registration legislation; it makes no changes of substance.
Almost all of the provisions in Part VIII affecting Northern Ireland are intended to keep Northern Ireland in step with changes in the law in England and Wales. In particular, the changes in Schedule 5 ensure that changes in the law regarding personal injury litigation proceed at an even pace in the two law districts, and almost all the changes in Schedule 6 reflect provisions in the law of England and Wales which are to be found either in Part VI or Part VII of the Bill or in the Supreme Court Act which was passed last year. Likewise Clause 63, regarding expert evidence, and Clause 64, about allowances for justices of the peace, are modelled on provsions in the law of England and Wales. I attach some importance to a uniformity of approach in matters concerning the administration of justice and I am gratified to find how readily reforms proposed for England and Wales are accepted in Northern Ireland.
Part IX deals with general and supplementary matters, transitionals, repeals and savings, which need not concern the House until the Committee stage. My
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Lords, I have to apologise for detaining the House for so long on a Bill which contains so much detail that is useful and, I hope, little, if not nothing, that is controversial. The Bill advances the cause of law reform and will allow the machinery of the administration of justice to operate more smoothly. I commend it to your Lordships and beg to move that the Bill be now read a second time.
Moved, That the Bill be now read a second time.—(The Lord Chancellor.)
4.42 p.m.
Lord Mishcon: My Lords, the House would have been entranced by even the metaphorical picture of the noble and learned Lord the Lord Chancellor darning old socks in presenting us with certain legislation. May I be permitted to congratulate him on the neat, colourful and even artistic tenor of his presentation—of his sewing ability? May I also commiserate with him on having to deal not only with old socks but also with odd socks, in this conglomerate Bill?
If I may say so, it is a pleasure to see in his seat the noble Lord, Lord Allen of Abbeydale, especially when one has heard such frequent references to the report of the Pearson Commission of which he was such an able and useful member. Your Lordships will remember with pleasure the numerous occasions on which he has endeavoured to bring the recommendations of that commission before this House. I believe that all of us have sympathy with the noble and learned Lord's position in endeavouring to get some reforms through, having regard to a heavy legislative programme. I wish to make it quite clear, with the permission of my noble and learned friend Lord Elwyn-Jones, that we on these Benches will do all we can to assist in the happy progress of the Bill.
Having said that, and having heard what the noble and learned Lord has said about amendments, I hope he will think it useful if, in this Second Reading speech, I endeavour to bring to the attention of the House and, if I may say so with respect, to the attention of the noble and learned Lord the Lord Chancellor, certain points which he himself may wish to take on board and deal with before the Bill proceeds much further.
There is no doubt that in regard to Clause 2 of this Bill a most helpful exercise has taken place in ridding our law of some archaic and indeed anachronistic rights of action. When one comes to deal with Clauses 1 and 3 of the Bill, and in Part I as well as in Part II we are dealing with rights to damages resulting from personal injuries, perhaps your Lordships will permit me in all humility to explain what the existing rights are in relation to personal injuries, subject to correction (and I speak as though I was an advocate addressing a jury at this moment) by the noble and learned Lord the Lord Chancellor, if I get my law wrong—but I hope that I will not.
There are three types of personal injuries which are relevant to consideration of the issue of damages. The first is an ordinary case where personal injury is sustained. There, as your Lordships will appreciate, the damages awarded are for pain and suffering, or for the loss of a limb, as well as compensation for loss of earnings and any special damage which might have been sustained; the special damage being actual monetary loss—items such a clothing and so on. The

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second type of injury where damages are an important consideration is where, unfortunately, the person injured, apart from suffering physical injuries, has his life shortened. In that case, in addition to the damages to which I have just referred, the injured paintiff would be entitled, under the ruling in the case of Pickett v. British Rail Engineering which was decided in 1978, to what the noble and learned Lord referred to as "the lost years". That would be some compensation to him for the fact that he will be deprived, one estimates, of certain years of his life during which he would have earned. From that point of view, he is awarded compensation as well as for the mental suffering that obviously anybody must undergo if he knows that his life has been shortened as the result of an accident.
Nothing in this Bill affects either of those two cases, but it is relevant that your Lordships should have those rights under consideration when you look at the third case, which is the case of a fatal accident. It has been said that it is cheaper to kill than it is to maim in an accident case. Your Lordships will appreciate the truth of that, while appreciating too that the object of the law here is to compensate and not to punish, when I remind your Lordships that in that case the award of damages would be based on the following considerations at the present time. First, there would be an award under the Law Reform Act for loss of expectation of life. Your Lordships may think that that amounts to a very high sum; but let me say that, as a result of judicial decisions, the amount which is normally awarded now in that category is the sum of £1,250. That is a head of damage under the Law Reform Act for loss of expectation of life. In addition, as the noble and learned Lord said, this House when sitting in its judicial capacity came to a reluctant conclusion in 1980 that there should be also inherited by the estate the damages for "the lost years" to which I have referred, namely, the loss of the ability to earn during the years of which the deceased was deprived. Under this Bill, both those heads of damage will go.
The third right which exists at this moment is under the Fatal Accidents Act 1976, and there a dependant, as described in that Act—the father, the mother, the son and so on; a very limited description of dependants—would be entitled to claim for what he or she has lost as a result of the fact that the person upon whom he or she depended for a certain part of his or her livelihood, or indeed all of it, has been killed. That is a head of damages that remains under this Bill. But there have been added to it, and very properly added to it, if I may say so, both ascendants and descendants of the deceased, and also a former spouse, who can now claim as a dependant. My Lords, you will hear me say something about that, because the noble and learned Lord the Lord Chancellor said that he did not propose in this Bill, as he is at present minded, to include as a dependant the minor unmarried child of somebody who has been killed in an accident.
To those heads of damages this Bill seeks to add, possibly in substitution for the first two that I talked about, and certainly that of the loss of expectation of life, a heading under the title of bereavement. In respect of that bereavement, the persons who under this Bill will be able to inherit this claim, as it were, will
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be persons such as the father and the mother who have lost a child, the husband or the wife who has lost a spouse, but not the child of the deceased. Here I realise that in one respect I misled your Lordships and I ask for leave to correct myself. I think I referred to this under the Fatal Accidents Act, when, of course, I should have referred to it under the head of bereavement, because of course a child is entitled to claim under the Fatal Accidents Act both before and after this Bill is passed. I apologise to your Lordships for that, but otherwise I believe I have given a correct statement.
There are the following points that I would wish to raise on this Bill. The first is that I believe it to be wrong, if I may say so, that in the bereavement situation a child should not be allowed to benefit. Secondly if I may say so, I object to the fact that there is a price put upon a bereavement claim with a ceiling of £3,500. Thirdly, I dislike the terminology of the bereavement claim. May I mention in regard to this that the Bill now before the House in fact follows the report recommendations of the Law Commission, both in respect of the title "bereavement", and, secondly, in regard to the limitation of an amount?—the Law Commission had a different amount, a smaller amount; it was a few years ago, of course, that they reported. Thirdly, the Commission in its recommendations excluded a child of the deceased from being able to benefit under this bereavement claim.
The Pearson Report, however, did recommend that a child should be included in a bereavement claim or in a claim under this sort of head. The Pearson Report further said that it should be a claim not for bereavement but for loss of society. Thirdly, because, as your Lordships will remember, Pearson had as its overriding recommendation the issue of absolute liability which was linked to a state fund of compensation, the Pearson Commission recommended that the formula for this head of damage and the amount of it should be related to average annual earnings. I wonder whether your Lordships will permit me in dealing with this matter to make a very short quotation from the Pearson Report in this context. I am reading from page 93, paragraph 405 of Volume 1 of the report:
"Some of our witnesses felt that the entitlement to claim damages for lost dependency should be further extended".
What I wanted to say to your Lordships was this. First of all, is it not pretty obvious content that the child of a deceased person killed in an accident is the one who very possibly has suffered the greatest bereavement of the lot? After all, one may sometime hope, if one has unfortunately lost a husband or wife, to achieve happiness again by obtaining another spouse. The child can never obtain another parent who has been killed; the child can only obtain a stepparent of a foster parent. To exclude the child from this right in respect of a deceased parent seems to me, if I may say so, to be all wrong.
The points that are put against the child having a right to claim under the heading of bereavement are, first, that it would be impracticable because there might be children who were resident abroad and one would have to find out who they were and so on. Secondly, the point is made that the child will in most cases be a dependant anyway under the Fatal Accident Act.

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I would argue to your Lordships in the following way. Pearson in fact has the same recommendations as the law now is in Scotland and has been since 1976. The Scottish Damages Act in fact provides for unlimited damages—and I will talk about that, if I may, briefly in a moment—recognises the right of a child to a claim, and also deals with it not under the head of bereavement but on the basis of loss of society. I am recommending that Scottish law be followed. It has not in the slighest proved impracticable.
On the question of dependability and, therefore, having to be able to claim under the Fatal Accidents Act, one only has to envisage two cases: first, the child who has lost a mother, where the mother is not the earner in the family but the father is—there would then be no claim under the Fatal Accidents Act at all—and secondly, a child whose father has been killed, disabled, become blind or whatever and, therefore, the mother has to be the earner in the family. In neither of those cases would the child have any right under the Fatal Accidents Act.
If I may say so, it is rather absurd—I hope that I am not using too strong a word—in an area where we are endeavouring so far as possible to have a commonly related law in the EEC, to have a situation where, if an English family or an Irish family or a Welsh family travel over the border to Scotland and there is a fatal accident in Scotland, the English family would be able to claim under Scottish law, the child would be able to claim, and there would be unlimited damages and the situation would therefore be one of greater advantage than if the accident occurred on the other side of the border where, in exactly the same circumstances, a child would not be able to claim at all and there would be a limit to the damages of £3,500.
The final point that I wish to make on this issue is the title of bereavement. I ask your Lordships to consider for one moment the position of somebody occupying the same profession as I have the honour to do, in explaining to a widow that your Lordships and those in another place have, in their wisdom, decided that the amount to be paid to her for her bereavement and in compensation for her bereavement is a maximum sum of £3,500. I think that it is offensive to say the least. One can explain if one likes that, as a result of your Lordships' wisdom and deliberations, it has been decided that a loss of society claim is open to her and that there has to be a maximum for that sum, however difficult it may be to assess in money terms. That may be possible. But I am asking your Lordships, as you appreciate, to follow the law of Scotland and to say that the amount should be at large and unlimited, and that the claim should, indeed, be a loss of society claim.
I hope that I have made my points fairly clear. In endeavouring to speak away from notes I did, in fact, as I have said, erroneously make to your Lordships a point under the Fatal Accidents Act and I made the wrong point. The point that I was trying to make was that a common law wife is not deemed to be a dependent now or under this Bill. What I wanted to say to your Lordships was that as this was looked at by Pearson and recommended by Pearson for consideration, as by the Law Commssion. The position of a common law wife ought obviously to be looked at very carefully in this day and age and one would have
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thought that she ought to be included in the list of dependants. You Lordships will be relieved to know that I can now pass on quite quickly to Clause 6 of the Bill which, as the noble and learned Lord the Lord Chancellor has said, is a very useful measure and it is one that I assure him is much appreciated—namely, the award of provisional damages where the prognosis is uncertain. I want to thank the noble and learned Lord for the reasoning behind this clause which practical experience shows is very necessary in certain cases.
Before leaving this part of the Bill may I beg the noble and learned Lord to make clear, for the benefit of all legal practitioners, what I know is intended, which is that the commencement date of this part of the Bill is three months from the date when the Bill is passed? I think that it would be of great benefit if, in clear terms, the statement was made that, of course, all causes of action before the commencement date of the Act are preserved. Indeed, that would be the position, however unfortunate it might be, in the case of the decision of Gammell v. Wilson which would still obtain until the commencement date of this Bill.
I turn to the question of wills and I can deal with that very shortly. However, in the midst of an arid speech perhaps your Lordships will permit me to try to bring a smile to your Lordships' faces by saying that there is a strange typographical error on page iii of the Explanatory and Financial Memorandum attached to the Bill. The whole object of the exercise of this Bill is to make it more comfortable, peaceful and simple for a testator to make his will. If we look at the wording of the top of page iii we find that Clause 17 replaces the elaborate provisions of certain past enactments:
"with a single provision dealing with the signing and attestation of wills and relaxes the law governing the position of the testator's signature and the acknowledgment of signature by an arresting witness".
I hardly think that that is likely to bring peace and quiet and simplicity to the testator's mind.
I did have a rather more serious point to bring to the noble and learned Lord's attention and it is as follows. In the simplification process, the Clause 17 that we are now considering does, in fact, go beyond the recommendations, as I understand it, of the Law Reform Committee. In removing the requirements that a will must be signed:
"at the foot or end thereof",
it appears to relax the formal requirements for signature rather further than the committee recommended, because there should surely be an express requirement apparent on the face of the will that the testator intended to give effect to his signature to the writing signed in his will. Otherwise it would seem that the signature may appear at any place on the document, and this may give rise, it is thought, to quite a lot of litigation of an unnecessary kind. But that is a matter of an amendment which can obviously take place if it appeals to the noble and learned Lord and to your Lordships, as I hope it will.
I come now to my very last point. The noble and learned Lord referred to mending old socks. I talked in terms of his having also to deal with odd socks as well as old ones. Of course it is rather extraordinary to find provisions dealing with the Wills Acts in a Bill entitled the "Administration of Justice Bill". But

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the noble and learned Lord made his position abundantly clear and the reason for this was given by him in very lucid terms. I would only ask that consideration should be given as soon as possible to a consolidation of the Wills Acts so that at least when the practitioner or the humble citizen looks to see as regards wills what are the law and the formalities at the moment, he does not have to look at the Administration of Justice Act, but is able to look at an Act sensibly headed "Wills Act".
Again I make it clear that we on these Benches look with great favour on the small, but very necessary, reforms that have been carried out, and we are grateful to the noble and learned Lord the Lord Chancellor for the way in which he has led us through this Bill on Second Reading.
5.10 p.m.
Lord Renton: My Lords, I had not put my name down to speak in this debate and I am grateful to the noble Lord, Lord Elystan-Morgan, for saying that I may precede him. I rise mainly in order to make it clear that admiration for this Bill is not the monopoly of the Opposition Front Bench. Indeed, I think that my noble and learned friend the Lord Chancellor is to be warmly congratulated on presenting to us a Bill which is so wide-ranging and in all its terms so acceptable.
No doubt there will be a few points of detail to discuss at the Committee stage, and Second Reading is not really an occasion for adding to the excellent explanation which the noble Lord, Lord Mishcon, has given of various parts of the Bill, especially those relating to damages for bereavement. I think that he was justified in pointing out that even as a result of this Bill the position will, in one important respect, be different in Scotland from what it is in England. That tempts me to observe that in the Act of Union there was nothing about harmonisation between Scottish law and the law of England and Wales. Indeed, on the contrary the parties to the Act of Union virtually pledged each other that for the rest of time the Scots at any rate would be allowed to have their own legal system treated quite separately.
But, of course, both Scotland and England belong to the European Economic Community. Perhaps I may also mention in passing—I hope not without regard to the terms of the Bill, which deals to such a great extent with damanges under the law of both Scotland, and England and Wales—that one of these days our Parliament may be faced with a European convention dealing with damages and may then bring us face to face with the issue, which is an important one, and has been for years, in the Continental system, as to whether or not we should have moral damages against which our courts have, for the most part, leaned successfully.
However, it could be said that when we had loss of expectation of life coming into our law, that was a breach of the rule that we do not award moral damages. In a sense, it comes very close to what moral damages are on the Continent. I think that my noble and learned friend the Lord Chancellor is to be congratulated on having grasped this nettle with regard to damages for loss of expectation of life. It is an irrational concept
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and until it was laid down by high judicial authority that they should be arbitrarily fixed at the sum of, I think, £1,250, the application of the principle gave rise to a lot of difficulty in practice. I must say that I welcome the step which my noble and learned friend has taken with regard to loss of expectation of life.
I sympathise with him in not going any further than he has done at this stage with the recommendations of the Pearson Commission. Nor has he dealt with the somewhat separate question of product liability, which no doubt will again exercise our minds one of these days. Bur sufficient is it for us to take note that product liability has become a sort of legal football in Strasbourg, Luxembourg and Brussels, and various committees of the EEC have been kicking it round to each other. However, it is a very controversial subject and there is a considerable gulf between the views held on one side and those held on another. Whatever result is likely to be achieved one day, it would probably result in a very wide extension of insurance.
With respect to my noble and learned friend the Lord Chancellor, to my mind this Bill does not look like an old sock. It looks to me like an up-to-date vade mecum for lawyers, and also for that reason I very much welcome it. Although, of course, it deals, in lawyers' terms, with important legal principles, it deals with matters which are important in human terms. The bereaved family of a person who has suffered damage through injury of one kind or another, the people making wills—all kinds of human situations—are covered by this Bill in a way which I hope will commend itself to your Lordships. Indeed, it deals with them in that understanding and sensible way which we would have expected from my noble and learned friend. My final comment, if I may be allowed to say so, is that at first sight the Bill seems to be well drafted.
5.17 p.m.
Lord Elystan-Morgan: My Lords, it is always a pleasure to listen to a speech by the noble Lord, Lord Renton, and, indeed, a personal pleasure to be able to allow him to precede me in this debate. It is also a temptation to follow him in some of his remarks relating to the Act of Union of Scotland and England, if it were only for the stimulus that that instrument gives to think about two other Acts of Union, one of which is a topic upon which I have thought a very great deal and in which I am deeply interested. That was an Act of Uniformity. I think that we should leave that matter for the moment.
I wholeheartedly join my noble friend Lord Mishcon in the assurance given to the noble and learned Lord the Lord Chancellor that this Bill in no way raises any deep political issues at all, and that it is a Bill which I am sure the House as a whole will generally welcome and will, indeed, regard as a Bill that has been drafted with a great deal of thought and humanity. In many respects it is a pity that we have not heard lay opinions upon this Bill this afternoon. It may be that those Members of the House not learned in the law have taken all too seriously the stricture of St. Luke, who said:
"Woe unto you lawyers, for you have taken away the key of knowledge".
The Bill has been likened to the darning of old socks. I must say that what came to my mind when I

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first read it was that tale of the late Sir Winston Churchill who, with magisterial hauteur, on one occasion rejected a blancmange, saying:
"Take it away, it has no theme whatsoever".
Of course, this Bill has no theme, and it is none the worse for that. It is a pot pourri of a number of interesting and necessary reforms. I join my noble friend Lord Mishcon in making the point that, if the opportunity presents itself at an early date to consolidate appropriate parts of the Bill with parent Acts, then that surely is a course that should be taken. It makes it infinitely easier for lawyers and, one suspects, perhaps some day infinitely easier for the soulless computer that will to some extent replace the services of lawyers.
May I deal, quickly I hope, with matters which have already been referred to and one or two matters that have not be alluded to. First, the question which arises in relation to Clause 1. The noble and learned Lord the Lord Chancellor has made it abundantly clear—and I welcome this—that it does not refer to the living plaintiff. I would respectfully, however, point out that there is nothing in the heading to that clause, nor in the side note, nor in the language of the clause itself, that makes it clear. Perhaps I am being unnecessarily careful in this matter, but out of an abundance of caution it may well be that consideration might be given to spelling out that perhaps most obvious point.
So far as the deceased plaintiff is concerned in the context of refusing and abolishing damages for loss of expectation of life, I appreciate that deep philosophical and moral considerations are tied up with this question. There are massive difficulties in so far as any decision upon the proper and appropriate criteria to be applied is concerned. There is the impossibility of applying ordinary methods of calculation, for what is being calculated bears no relationship whatsoever to monetary loss.
I appreciate, however, as I am sure every Member of the House does, that monies paid under such a heading at the moment are in most circumstances paid to parents very often of children, or of young persons, who have been killed in accidents. Such matters, I am sure, are not looked upon by those parents in the cold light of the unremitting logic of jurisprudence. If this provision stood alone, therefore, personally I would have thought that that factor in itself might be regarded as a severe criticism, whatever the intentions of the draftsmen were in this matter. It does not stand alone, however, and in practice, although one is dealing with a totally different situation, it has of course to be considered side by side with Clause 3, which deals with the bereavement award.
I appreciate here again that it is no easier to reduce something of the quality of human grief to pounds and pence. I am sure that everyone here accepts respectfully and with sympathy what was said by the noble and learned Lord the Lord Chancellor in this connection. I am sure that in the case of parents who receive awards upon the death of children that the money itself, as money, gives them no joy whatsoever in the vast majority of cases. I am equally sure, however, that many parents would say, upon the receipt of such a sum of money, that it was not the money as such, not the economic value of the money that counts, but that the money is some expression on the part of society
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of the gravity with which society regards the loss of a human life. It is on that basis that an award for bereavement as such really and fundamentally rests.
The question arises, of course, whether it should be a fixed sum or whether it should be a sum arrived at by judicial calculation. I was greatly impressed by many of the arguments that were advanced in this connection by my noble friend Lord Mishcon. The difficulty however of judicial calculation of such a sum, as I see it, is that it would entail a very close and detailed examination of the exact relationship between the claimant and the deceased. That not only might be extremely difficult of proof but might, in many circumstances, be highly embarrassing as well.
The question arises, however, if there is to be a figure, whether that figure should be the figure of £3,500, subject of course to being changed by order from time to time, or whether it should be a higher figure. I would suggest that if a fixed figure is to be agreed upon, that figure might be of the order of £5,000. That latter figure, I would suggest, bears probably a better relationship to the sort of fixed figure that was decided upon by this House in Rose v Ford in 1937, bearing in mind the changes in the value of money. That was an award for loss of expectation of life rather than for bereavement, and I am trying to look at it not in a technical way but through the eyes of those who will be receiving such a sum.
I wholeheartedly join with my noble friend Lord Mishcon in what he has said in relation to Clause 3. The House is invited generously to extend the category of claimants, and I am sure that that is something that everyone welcomes. It is, however, particularly unfortunate that no reference has been made to the common law spouse. It is right that Parliament should consider on the one hand respect for the sanctity of marriage; it is right I am sure, however, on the other hand that Parliament should consider the exact situation that exists in hundreds of thousands of households the length and breadth of this land.
In Clause 3(5) provision is properly and generously made for the illegitimate child. Logic demands that the spouse on a common law basis should be treated with no less understanding and generosity. If Parliament be minded to accept an amendment, I would suggest that a suitable form of wording is found in Section 1(1) of the Inheritance (Provision for Family and Dependants) Act 1975, where there is reference to
"any person… who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased;".
May I refer quickly to Clause 4. This clause deals with the double recovery anomaly which was exposed in the judgment of this House in Gammell v. Wilson in 1981. A number of difficult alternative possibilities were open. In my submission, this is probably the best that was open to the House. There were two problems in Gammell v. Wilson. One was the question of double recovery, the other was the question of what criteria a judge should apply in coming to a decision in relation to the potential earning capacity of a young person.
Some cases can be very difficult indeed. The matter was touched upon in the speech of the noble and learned Lord, Lord Scarman, and it may well be that at Committee stage thought might be given to whether or not certain guidelines should be laid down in this

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connection. I quote briefly the words of the noble and learned Lord:
"The appellant in Gammell's case was disposed to argue, by analogy with damages for loss of expectation of life, that in the absence of cogent evidence of loss, the award should be a modest conventional sum. There is no room for a conventional award in a case of alleged loss of earnings of the lost years; the loss is pecuniary. As such, it must be shown on the facts found to be at least capable of being estimated. If sufficient facts are established to enable the court to avoid the fancies of speculation, even though not enabling it to reach mathematical certainty, the court must make the best estimate it can. In civil litigation, it is the balance of probabilities which matters. In the case of a young child, the lost years of earning capacity will ordinarily be so distant that assessment is mere speculation. No estimate being possible, no award, not even a conventional award, should ordinarily be made. Even so, there will be exceptions; a child television star cut short in her prime at the age of five might have a claim. It would depend on the evidence".
I am certain that it would be inappropriate to legislate for a fixed sum in such circumstances. The House may come to the conclusion also that it would not be appropriate even to lay down guidelines, and that on the whole it is better to leave the matter to judicial discretion, difficult though the problems facing the judge are in such cases.
I will deal for a moment with what in my submission is a very serious omission from the Bill. I heard, and heard with sympathy, what the noble and learned Lord the Lord Chancellor said with regard to the difficulties of Parliamentary time, and perhaps the even greater difficulties of parliamentary draftsmen being available. Nevertheless, in the long judgment of history, this will be looked on as a Bill that gave Parliament the opportunity to deal with certain vital and fundamental problems. I would refer of course to the most pressing issue on which no final decision has yet been announced by the Government, and that is the question of the recommendations of the Pearson Royal Commission on the matter of no blame damages in the context of road accidents. I was unfortunately unable to attend the splendid debate in your Lordships' House on 20th January this year initiated by the noble Lord, Lord Allen of Abbeydale. I read it with great interest and I could have added nothing to what was advocated by Lord Allen and my noble and learned friend Lord Elwyn-Jones.
It is a situation which in my submission cries out for the compassionate acceptance by Government of a problem of such magnitude that it can be settled only by legislation. The House will remember the figures; over 7,000 a year killed on our roads and some 300,000 injured, 80,000 of them seriously. The majority of those injured very probably do not make any claim at all, even probably the majority of those seriously injured; sometimes because no blame can be pinned on anybody—it is not always that there will be blame on any person—and in many other circumstances because it is impossible to find witnesses or to find witnesses who years after the event have a proper recollection of the event. A vast legion of people are deprived of their just rights in this matter.
Road accidents exist in an area that Parliament has regarded as being a special area for many years. Parliament has ordained that it is compulsory that there should be third party insurance. It is almost 50 years since an agreement was made between the Ministry of Transport and the Motor Insurers Bureau to cover
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cases of those who had not complied with statute. It is a special area, an area regarded as being special in the codes of many other countries. As the House heard on 20th January from the noble Lord, Lord Allen, it is the code in Sweden, New Zealand, all the provinces of Canada, many of the Australian states and in many of the states of the United States. The cost would not be high; it would be a small fraction of 1 per cent. of total Government taxation in a year.
I understand and accept what the noble and learned Lord the Lord Chancellor says about the difficulties of accepting amendments that might be controversial. I am sure the noble and learned Lord—I do not say this in any way sarcastically—could plead the "vehicular defence" (that this is not a proper vehicle for an amendment of such sweeping dimensions) but all I ask is that at some appropriate stage, on a matter as important as this (important not just to law reform but the community as a whole, dealing, as it does, with the deepest considerations of justice) the Government should at the earliest opportunity spell out their attitude in relation to this most important recommendation of the Pearson Commission.
There is a great deal I should have wished to have said in relation to wills, but the House has listened patiently to me and I am sure they are matters which can properly be mentioned in Committee. This is a Bill which is generally to be welcomed. Its defects, as I say, lie mainly in relation to what it has failed to take heed of. There are problems that will remain with us. A comprehensive and painstaking study has been made by the Law Commission and the Pearson Royal Commission. Anomalies have been exposed in our civil law which a responsible and reasonable society, like other communities in different parts of the world, would wish to remove. Having said that, I am extremely grateful for the patience with which the House has listened to my ramblings and again, on behalf of these Benches, I welcome the Bill and the motives behind it.
5.38 p.m.
The Lord Chancellor: My Lords, I should be churlish if I did not acknowledge with gratitude the gracious way in which these lengthy but relatively modest proposals—invaluable proposals, as I believe them to be—have been treated by noble Lords who have taken part in this debate, and I acknowledge with pleased surprise that even the draftsmanship has received the accolade of my noble friend Lord Renton. I also acknowledge with thanks the various constructive suggestions and criticisms which have been made by the few noble Lords who have felt able to participate. I will take them all into account before the Committee stage, although it may be that it would be better to see what amendments are tabled before dealing with them in any detail. I shall try to deal with one or two of them now.
First, as regards the rather ambitious proposal which the noble Lord, Lord Elystan-Morgan, has just made, I must tell him that in a Bill with 69 clauses, ranging from wills to family law, and from Scotland to interest on judgments and provisional damages, the main recommendations of Pearson would not permit me to legislate, except in a separate Bill. I could not even contemplate such a course. I recognise

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the anxiety with which the proposals are expected to receive consideration, but I am not in a position to make an announcement today. It is quite clear that, however sympathetically one regards these matters, the provision of what would really be radically a total revolution in the law of tort and the provision of a new social service, could hardly find a place in this Bill, whether it would be cheap or expensive.
I was very grateful to the noble Lord, Lord Mishcon, for setting out so plainly the provisions of the existing law. When I saw that I had 25 pages of notes to pursue, I trembled before the endeavour myself. I was very grateful to the noble Lord for having informed the House so clearly what is involved, and I was equally grateful to him for pointing out that, contrary to what he had originally said, the right of the dependent child to damages in a fatal accident case is provided for under the existing law and will remain unaltered under the Bill.
The point which has recurred in the speeches of both the noble Lords, Lord Mishcon and Lord Elystan-Morgan, concerns the very difficult question of damages for bereavement—I continue to so call it without prejudice possibly to accepting at a later stage what the noble Lord, Lord Mishcon, said about the terminology. First, I should like to say what is my policy in such matters. My policy is, so far as I can, to give effect to the reports of reputable bodies, or one of them, and to choose between one or the other, where they differ. I have personal feelings of my own, and I shall in fact disclose them at this stage. They differ from my policy, and noble Lords will understand why when I say what my personal feelings are.
Like any other lawyer, and in particular like all Lord Chancellors, from time to time I receive letters from Members of Parliament and members of the public about the loss of a child, or a spouse, or a parent, as the case may be. My correspondents say that they are awarded only the present conventional sum and that it is an insult. I have to explain, as the noble Lord, Lord Mishcon, explained in his speech, that what is being awarded is not damages for the loss of the child at all, but a notional loss to the estate of the spouse or the deceased person, based upon loss of expectation of life to her. It is notional damages to the deceased, and not real damages for bereavement. That, I believe, is a very pertinent point to have to explain to begin with. But, of course, it answers no questions at all.
I hope that the House will forgive me for talking personally about this matter. It is a very sensitive matter, and the only way to talk about it is in a personal way. I lost my mother when I was quite a boy, I lost my father in middle age, and I lost my wife when I was already an old-age pensioner. I am not at all going to differentiate between the degree of loss and the agony of bereavement in any of those three cases. I have always personally taken the view that there was no sum of money, at all that one can nominate which is not an insult to, the bereaved person, whether it is £10 million or £10. I feel that very strongly myself. I know that in saying that I am not expressing the view of the majority, but nothing will alter that opinion so far as I persona, fly am concerned.
Having said that, one has to face a quite real problem of how to express the loss terms of money. Of
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course it is said, and will be said, by lawyers that the law is always having to turn into money things which cannot be turned into money. For instance, if somebody offered to break two of my legs, I would get something for paid and suffering. But whatever I was offered for pain and suffering in return for the breaking of my legs, I think I would say, "No, thank you very much. I prefer to have two perfectly good legs"—except that they are not perfectly good. The law is constantly having to do that kind of thing.
But I believe that when it comes to the death of a wife, a child, a brother, or a parent, the law which tries to specify a sum in relation to the particular case is entering into the realms of the impossible, and either there must be a determinate sum, or nothing at all. I have opted for a determinate sum not because I believe in it, since I would give nothing at all, but because a wise body of men—one wise body of three different wise bodies of men—came to a particular conclusion, and my policy is to pursue the best, or the least bad, of conclusions of organised bodies which have investigated subjects of law reform.
I do not myself share the admiration for the charm of Scottish law in this respect. It does not in fact compensate, or purport to compensate, for grief. It compensates for loss of society, which is even more difficult to estimate. That, I am afraid, would drive one into asking questions about how well the spouses got on together, how much the children were admired or loved, or how much the parent was admired and loved, and whether the parties sometimes got drunk at nights. It involves the courts and the lawyers in an insoluble problem as a quantum, including the issue from which we shrunk during my first term in office, in a slightly different context, of deciding whether or not a widow was likely to remarry, which personally I find a most repulsive inquiry. But, again, it is a matter which one must approach sensitively, and opinions, I am afraid, are always subjective and seldom mean very much, except to the person who holds them; and we all hold them.
Sometimes the Scottish law yields a dividend (if that is the right word) in the way of solatium rather less than the £3,500 mentioned in the Bill, or the other calculation which the Pearson Commission returned. We must all think about these things. As I say, I shall pursue some policy which will not represent my private opinion, and I want to be perfectly candid about that. I know that on the whole the conscience of mankind would demand something, and I know that it is not my conscience. I shall try to give effect to something. If I can think of anything better than what I have done, or what the Law Commission recommended some years ago, I shall do it. It is not a matter of principle with me, except that my own convictions, I know, are very deeply held and are rather different from the convictions that are equally deeply held by other people.
I think that the common law wife presents a certain number of difficulties, although I note what the noble Lord, Lord Elystan-Morgan, said about the family inheritance Act. It is of course a phrase unknown to statute law as such. There are different degrees of permanence about relationships of this kind which obviously would present the courts with a very considerable difficulty which is not presented by the ordinary

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matrimonial relationship, or not to the same extent, or the relationship of parent and child. But I will certainly see what I think about that after reflection.
The position of the signature on the will, which was very properly brought to my attention by Lord Mischon, is, I am afraid, something upon which I can offer no useful wisdom at the present stage but I shall hope to arm myself for the Committee stage with something better than that. As to the commencement of Clause 6 I would expect it to be longer than three months because we shall ourselves have to think out what needs to be done and also give the practitioners time to think out the implications. It will not, I think, be retrospective as regards death before commencement. I am afraid the spirit of Gammell v. Wilson will stalk to our discomfort through the courts for some time yet, but retrospective legislation has problems of its own.
As regards consolidation, I am an enthusiast for consolidation but I should like, if I may, to share with the House a spot of bother that I am having about consolidation at the present time, and especially am I quite certain in my mind, without researching the problem, that this would be true about wills in particular. The consolidation committee, which does such useful work and through which the work of the Law Commission and others has to pass, is not allowed to consider for consolidation what are called pre-consolidation amendments. My view, which I did manage to carry through in a particular Bill, is that before you consolidate you ought to have pre-consolidation amendments which ought to be placed before the consolidation committee, and then the resulting whole could be treated in the way that consolidation Bills are treated, the pre-consolidation amendments being embodied either in the consolidating Act or, alternatively, in a separate Act. At the moment this is not possible.
I thought myself it would not cause much trouble if we did it, but it has run into a certain number of snags. If noble Lords on either side of the House can give the thing a fair wind in private conversation with those who deal with these things, I would personally be very much obliged because the state of our statute book is quite undoubtedly scandalous, as it has been for the past 300 years, and consolidation is one of the ways in which it can be reduced to some kind of decent order. But I think the greatest single piece of machinery that we could now invent to advance the cause of consolidation would be to get rid of, in some such way as I have described, the problem of pre-consolidation amendments.
Having said that, I should like to renew my thanks to the House for the gracious way in which this Bill has been received and apologise for the extremely long time I have been introducing it. I think the facts of the matter speak for themselves.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Deer (Amendment) (Scotland) Bill [H.L.]
5.54 p.m.
Lord Glenarthur: My Lords, I beg to move that the
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House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Glenarthur.)
On Question, Motion agreed to.
House in Committee accordingly.
[THE LORD NUGENT OF GUILDFORD in the Chair.]
Clause 1 [Alteration of general functions of the Red Deer Commission]:
Lord Burton Lord Burton moved Amendment No. 1:
Page 1, line 7, leave out ("and 4") and insert ("4, 5(1), 6(I), 7(1) and (2), 8(1) and (3), 110), 120), 14, 15(1) and 19").
The noble Lord said: This is a paving amendment for the next two, and if I may, therefore, I will speak to all three together. As was made clear on Second Reacting, the Red Deer Commission should not have the burden of dealing with other species except in the very limited instance of sika. The present staff have more than enough to do without any additional work. They are already two years behind with their census counting, and this amendment Bill will give them more work still to do without adding other species, as the Bill at present provides. They are constituted as a Red Deer Commission, and not as a deer commission. Why therefore add that they could be given powers "furthering the conservation and control of other species"?
When the working party representing almost all interested parties met in the Red Deer Commission offices to discuss proposals for this legislation the Red Deer Commission gave the impression that to say the least they were not keen to deal with roe. Regrettably, the findings of this working party seem to have been largely ignored, and it seems that the forestry interests have been given preference, which they were not on that committee. Once the commission have become involved with other species it could involve them running about all over Scotland instead of being confined to the red deer areas as at present, and therefore involve them in a great deal of extra work and extra expense. I beg to move.
Viscount Thurso: I was one of those who would have supported the noble Lord, Lord Burton, a few years ago in wishing that the Red Deer Commission should have to do with nothing but red deer. I have, however, changed my mind on this subject, not because I think that anything has changed about the problems that they will have to face as a result of having to deal with other species of deer but because there is no doubt that other species of deer are moving on to territory which previously was occupied only by red deer. Certainly this is true of sika, and certainly it is true of roe. I do not know about the other curious species of deer which I would have personally liked to have seen totally eliminated from the natural scene of the British Isles, such as muntjac and so forth, but it is certainly true of roe and of sika that they are extending their range and that they are presenting problems in areas that were previously solely red deer areas. Reluctantly I feel that the commission and the noble Lord, Lord Glenarthur, are correct in, framing the Bill in the way in which they have framed it.
Lord Glenarthur: I am grateful to the noble Viscount for his comments supporting the Bill. These amendments would prevent a very modest extension of the remit of the Red Deer Commission which is provided for in the Bill. Of course the commission is and will remain primarily concerned with red deer; but it came out clearly in the consultative process which preceded the framing of the Bill that it would be helpful if the commission could play an appropriate role in regard not only to sika but to other species. In going about their work, as I explained on Second Reading, the Red Deer Commission do not and cannot ignore other species which they encounter. It is more than just accident, therefore, that they acquire some knowledge of the habits and distribution of these other species. It seems only right that the knowledge which is acquired by a public body such as this should be tapped for public benefit.
The fear expressed by my noble friend that this would strain the resources of the Red Deer Commission is really unfounded. It is normal practice, where a Minister has a power to give directions to a body which is responsible to him, to consult the body before issuing the directions. The Commission itself would be keenly aware of the resource implications of taking on a new task, and quick to point them out. I hope my noble friend will consider that point and will withdraw his amendment.
Lord Burton: I am not at all happy about withdrawing this. Perhaps there could be more consideration given to it. If the powers of the commission are to be extended to roe deer, without fallow deer, then I hardly feel that my noble friend can call it a modest extension. There are far more roe deer than red deer in Scotland. Therefore, if they are to look after roe deer as well—and, after all, this amendment says that it will mean that they will be furthering the conservation and control of roe deer if the Secretary of State gives them these powers—then the work of the commission must be more than doubled. They will be a deer commission and not a Red Deer Commission; and they are not constituted as such. This wants carefully looking at. I sat in on all the working party meetings in the Red Deer Commission offices. Not in my recollection did the working party at any time come out with a recommendation that the Red Deer Commission should look after roe deer.
Lord Glenarthur: I understand my noble friend's point but the powers that this particular clause, and the other two that he mentioned, deal with are purely advisory. They do not bring in control. The effect of Clause 1(1) and Clause 1(2) is to extend the range of the Red Deer Commission's powers and functions from red to sika. That which applies to other species is only advisory. That is quite plain in the Bill.
Lord Burton: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 2 and 3 not moved.]
Lord Northfield Lord Northfield moved Amendment No. 4:
Page 1, line 21, leave out ("nippon").
The noble Lord said: This amendment corrects the Latin name for sika deer. I beg to move.
Lord Glenarthur: I am delighted to say that we acknowledge the fact that the second "nippon" should not be in place, Although it appears in the 1963 Act and in the Deer (Close Seasons) (Scotland) Order 1966, it denotes only one of a dozen or so sub-species of sika deer. We are happy to accept the amendment.
On Question, amendment agreed to.
Clause 1, as amended, agreed to.
Clause 2 [Observers and research]:
Lord Burton Lord Burton moved Amendment No. 5:
Page 2, line 12, leave out ("practical or").
The noble Lord said: This is purely a probing amendment. The wording of the Bill is:
"to support and to engage in research on questions of practical or scientific importance".
I know that, "practical or" appears in the 1959 Act and that is probably why it is here. But the fact that it is in the 1959 Act does not mean that it is good wording. I think I have some idea of what it means but I have put down the amendment to draw attention to the fact; because I feel that it is not beyond our wit to find something more suitable. Until we know what is meant exactly by, "practical or" it is difficult to put down the wording that is required. I beg to move.
Lord Glenarthur: My noble friend seeks to ask for expansion of what "practical" means. There is nothing new in these words. The 1959 Act, in Section 4(b), already empowers the commission to collaborate in investigations into questions into investigations into questions "of practical or scientific importance". Clause 2(2) merely adds that the commission may undertake such investigations of its own initiative. A question of "practical" importance would be, for instance, a duty of the stock-carrying capacity of a given type or area of land, or in general, any study that related primarily to matters of interest to deer management rather than to academic zoologists, or biologists interested in scientific aspects of deer. It is most desirable for the commission to he able to undertake such studies.
Lord Burton: I beg to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Burton Lord Burton moved Amendment No. 6:
Page 2, line 14, at end insert—
("(3) At the end of section 4(a) of the said Act of 1959 the words "on that land" shall be omitted.").
The noble Lord said: This amendment really is worded to advise any owner of land on questions relating to the carrying of stock of red deer and, if amended, sika on that land. I am not happy about this. It came up at one of the meetings on this Bill at which some of the Red Deer Commission were present. I thought that it was desirable that the words "on that land" should he removed. The position now is that there are more and more deer groups and the deer move about the area. Therefore, it is important that the whole picture should be considered and not specifically one segment of land.

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Therefore, although I do not think it of great consequence to the Bill one way or the other, I think it would tidy matters up if the words "on that land" were removed. I beg to move.
Lord Glenarthur: I see the purpose of the amendment, but I do not think an amendment is necessary here, nor do I think that the amendment as drafted would achieve its purpose. In practice the Red Deer Commission take a broad view of their duties of advising landowners, particularly in their encouragement of deer management groups. As yet nobody has seriously challenged their power to do so, so they are able to operate satisfactorily under the existing Act.
At the same time, the seemingly restrictive words, "on that land" do serve a purpose. They register that fact that a landowner has an interest only to the extent that there are, or might be, deer on his land. If his land is not deer territory, he will have no business inquiring what goes on elsewhere; if it is, he can already get all the advice he needs from the Red Deer Commission. The amendment, however, would give carte blanche to any landowner to ask any question about deer anywhere in Scotland. The commission of course are not bound to answer in cases where they think the questions irrelevant, but it is still open to doubt whether we should create the right to ask the question in the first place.
Lord Burton: I am not entirely happy with that. A lot depends on the wind and the weather and so on, and the deer still move about considerably. I think that this would largely arise when the commission were considering making some sort of a control order. I think it undesirable if a control order is made without considering the deer on the neighbouring land. Perhaps the noble Lord does not think it is reasonable, but it is of small consequence and I shall be happy to withdraw it, but I think it ought to be looked at.
Amendment, by leave, withdrawn.
Clause 2 agreed to.
Lord Glenkinglas Lord Glenkinglas moved Amendment No. 7:
After Clause 2, insert the following new clause:
("Copies of returns of deer killed by occupiers to be sent to owners.
At the end of section 5(1) of the said Act of 1959 there shall be inserted the words"; and copies of any such returns of deer killed by the occupier shall be sent to the owner of the land involved as soon as possible in order to facilitate the proper control and balance of deer stocks.".").
The noble Lord said: From conversations I have had since put down this amendment, I know that it does not altogether meet the point which needs meeting. As my noble friend Lord Burton said just now, there are coming into existence, very wisely, all over Scotland, deer groups. The purpose of these groups is for the accurate and proper management of deer in the hope that ground is not over-stocked, thereby perhaps causing marauding, which is part of the problems of this Bill. If that is to be so, people must know what is being killed in any particular area. I thought that the owners of land should be told but I thought also that, under the 1959 Act, the Red Deer Commission kept records of all deer killed whether by occupiers
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or by owners; and, therefore, if they pass on information to the owners everybody would be satisfied.
I am told by the Red Deer Commission that they do not get these returns except from what one might call designated owners of deer forests, so there are a great many deer being killed but they possibly know very little about that. I hope therefore that my noble friend will realise that the aim that I have, which is that the fullest possible information should be available for the better management of deer, is what I am trying to get at and that he will not tell me that my amendment is defective.
Lord Dulverton: I should like to speak in support of what my noble friend said in relation to returns being made to owners for the better management of deer. I should also like to confirm what both he and my noble friend Lord Burton said about the growth of deer management groups throughout Scotland which are being encouraged actively by the Red Deer Commission as a means towards better control and management of deer. I think my noble friend has a point but it may be dealt with by a subsequent amendment.
Viscount Thurso: I think that this is an important and valuable amendment. Certainly the spirit of it is very important, because any owner of land who sets out to produce a cull that keeps the deer population at a stable and satisfactory level has to take into account the numbers of deer that are normally on the ground and the numbers that are normally killed. If he is not aware of numbers of deer that are being killed, he is liable to make mistakes. He may wonder why his policy, which has been framed in all good faith and according to the best advice given by the deer commission, is not having the results that it ought to be having.
It is important that the information should be available. It should be available to the deer groups, to the Red Deer Commission and to the owners of the ground upon which the deer are killed, whether they are killed by the occupiers or by sportsmen who have taken the shooting on the ground. If this amendment is not satisfactory, I hope that at some later stage the noble Lord, Lord Glenarthur, will take on board the spirit of the amendment and try and incorporate something into the Bill which will produce the same result in giving valuable management information where it is needed.
Lord Burton: The next amendment is perhaps a better one. At this stage one might draw attention to the fact that if one looks at the 1980 Red Deer Commission's report there is a discrepancy of nearly 4,000 deer out of 35,000 between estate and venison dealers' returns. Four thousand out of 35,000 is a large figure. If this amendment were put in not only would it allow owners to know what is going on on their own ground but it would give a much more accurate return to the Red Deer Commission.
Lord Ross of Marnock: Bearing in mind that the whole purpose of the Red Deer Commission is to control, I find it difficult to understand how they control if they have not adequate information. They can only get it by returns. I suggest that if this amendment is

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defective then the noble Lord should see what can be done. There is a lot of guesswork going on. I have the Red Deer Commission report for 1980 and this is one of the outstanding matters. There is a little bit of guesswork about culling and everything else when you do not entirely know the extent of the problem.
Lord Glenarthur: I entirely sympathise with the views expressed by noble Lords who feel that knowledge of what deer are killed by tenant farmers is just as much part of the management scene of deer as what the proprietors of the deer forest shoot themselves. This particular amendment would not achieve the desired effect. The commission gathers returns under Section 5 for their own purposes and they have not found it necessary to go to the smaller type of occupier at whom the amendment seems to be aimed, despite the discrepancy to which my noble friend Lord Burton referred of 4,000 out of 35,000. Nor would it be practical for them to do so. They would be in the business of chasing up returns from probably several thousand occupiers. They simply are not staffed for that kind of work.
The place to deal with this question is in the context of the rights of occupiers; that is to say, under Clause 8. I have tabled an amendment at that point which attempts to deal with the matter so far as it is appropriate to put the matter at all under statutory control. Perhaps we may debate the merits of my proposal when we reach it. I hope that it will be agreed that we cannot involve the commission. The cost would be unacceptable.
Viscount Thurso: Surely this amendment does not require them to make the return to the commission. It is the owner who is required to make the return to the commission. He is making at the present moment a false return for the simple reason that he has not the power to get the information from his tenants. He has not the power to require his tenants to give him the information on the numbers of deer which they kill. If an amendment like this were passed, this would give the owners of the ground the right to find out from the occupiers of the ground how many deer they kill. Therefore, he can then make a correct return to the deer commission as he is supposed to be doing.
Lord Glenarthur: As I said, the amendment I have tabled comes later in the Bill. I accept the noble Lord's point; but the effect of the amendment as it is written would be to oblige the Red Deer Commission to send to the owner of the land any returns of deer killed that they may have acquired from the occupier of the land. There is no way that this could be achieved without the Red Deer Commission being involved. I hope that when the noble Lord looks later in the Marshalled List he will find that my amendment meets this case.
Lord Glenkinglas: I should like to thank my noble friend for his sympathy. When we get to Clause 8 I shall look hopefully at his amendment and see whether it does what I hope it will do. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Massereene and Ferrard Viscount Massereene and Ferrard moved Amendment No. 8:
After Clause 2, insert the following new clause:
("Notice of killing of deer
. After section 5 of the said Act of 1959 there shall he inserted the following new section—
"Notice of killing of deer.
5A.—(1) It shall be the duty of any occupier of land who intends to kill deer on that land to give not less than twenty-four hours notice of his intention to do so to the owner of that land or his agent or to the Commission.
(2) It shall be the duty of any occupier of land who has killed deer on that land within 28 days of such killing to notify the owner of the land and to give him details of the numbers, species and sex of the deer killed.
(3) Any occupier of land who—

(a) fails to comply with the provisions of subsection (1) or subsection (2) above; or

(b) knowingly or recklessly furnishes any information which is false in any material particular;

shall be guilty of an offence and liable on summary conviction to a fine not exceeding £200 or to imprisonment for a term not exceeding three months or to both such fine and imprisonment.".").
The noble Viscount said: I should like to make a few remarks about subsection (2) of the new Clause 5A as the Committee have been talking about returns. In this amendment it shall be the duty of any occupier of land who has killed deer on that land within 28 days of such killing to notify the owner of the land and to give him details of the numbers, species and sex of the deer killed. As we have already heard, it is extremely important for an owner of land let to a farm tenant, to an occupier who is killing deer in his land, to have knowledge of the number, species and sex of the deer killed. My noble friend Lord Glenkinglas spoke about this in Amendment No. 7. This amendment says:
"…and copies of any such returns of deer killed by the occupier shall be sent to the owner of the land involved as soon as possible…"
My experience in the Western Highlands is that "as soon as possible" might eventually become impossible because people are inclined to put off until tomorrow what they should do today, and tomorrow never comes. I should like to see a time limit, a specified number of days. I have put in subsection (2):
"within 28 days of such killing to notify the owner".
I do not think 28 days is too short a period, because in the original Deer Act of 1959 the Red Deer Commission asked for returns from the owners or occupiers, I think, within 36 days of having a notice served on the occupier and the owner.
Perhaps I might return to the penalties involved if the occupier does not make a return within 28 days. Under the 1959 Act, if one failed to make a return to the Red Deer Commission within 36 days of being given a notice one was fined £20 for a first offence and £50 for a second. All terms of imprisonment were for three months, as I have put in this amendment. Taking inflation into consideration, I do not think that £200 as against £20 is after 23 years an incorrect rate of increase. To return to Clause 5A(1), it says:
"It shall be the duty of any occupier of land who intends to kill deer on that land to give not less than 24 hours' notice of his intention to do so to the owner of that land or his agent or to the Commission".
Some people may say that 24 hours is rather short notice, but I do not really think so. If anybody has a

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lot of deer spoiling his crops or young trees, obviously he wants to drive them out and possibly kill some of them as soon as he can; so I do not think that 24 hours is the wrong period of notice. If a person cannot get hold of the owner, he can probably get hold of the agent, and if he cannot do that he can go to the deer commission; I hope they keep their office staffed. So I think this is a reasonable amendment and I therefore beg to move.
Viscount Thurso: I am afraid that I do not think this is at all a reasonable amendment and it is not very good for the occupier, the owner or the deer, for the simple reason that the sooner the deer that maraud upon turnips are shot the less will have to be shot: it is as simple as that. The typical marauding deer are stags at the end of the rut, and if they come down to the turnips and get a taste of them it is well known that they will go back to the hill and the other deer will get the smell of the turnips off them. More deer will return the following day, and whereas you may start with perhaps two stags coming on to the turnips, the next day you may have six and the next day you may have 30. So if you shoot them the night you find them on, the better it will be for the deer population because you will remove the temptation from the other stags to be brought to the turnips, having smelt the turnips on their fellow stags the previous night.
Lord Burton: I am afraid I think this is a very good amendment and it is important that we should have it in the Bill. I have quickly looked at Amendment No. 101, which I think is the one my noble friend has referred to, and I do not think that really meets the case at all whereas this one does. This is in three parts. There is the prior information of intention to kill, and I think that is only reasonable because, after all, why should anyone be allowed to run about on somebody else's ground at night with a light so that the staff will wonder what on earth is going on, with no information having been given beforehand? Surely it is reasonable for some information to be given. Later on I see there is an amendment to the effect that the police should be notified. Then of course there is the intimation of what is to be killed. If a landowner is to control his deer properly he must know what is to be killed and he must know in reasonable time; otherwise the season for that particular species or sex could have expired. I do not think that 28 days is too long a period.
Then you get on to the penalties for failing to notify. There is no point in having a regulation if there is no penalty for not complying with it, because an awkward occupier need not bother to reply if there is no compulsion. The compulsion here is the same as the owner will have if he fails to make a return to the Red Deer Commission—which reminds me that I have not yet sent in my own return for this year. I think it is still in time but it has to be done close to the end of the season.
I think this is not at all an unreasonable amendment. There may be some difficulty about the penalties, in making one individual liable to another, but I cannot really see the difficulty involved and I have consulted two or three lawyers. I would totally disagree with
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the noble Viscount, Lord Thurso, about the question of a delay of a day or so. If you want to keep the deer out for one or two nights all you need do is to put a lamp in the field—the same sort of light, if you happen to have one, which is used at the roadside: a flashing light. That is most effective. We have used such a lamp several times for our own turnips, and this year on at least two occasions deer which have been going into a field for some time have left it just shortly after they have started clipping the turnips: just putting the turnip clipper into the field has been enough to deter them from going in for a night or two. So the question of urgency which the noble Viscount has suggested is really "baloney" in this case. There is no such necessity.
Lord John-Mackie: I have been accused by the noble Lord, Lord Dulverton, of not knowing an awful lot about red deer, but I do know something about deer destroying crops. If one is a farmer and sees deer on his crops, the point which the noble Viscount Lord Thurso, made is valid enough. But the point is, if you see deer in a field you do not look for a lamp or something: you go for a rifle immediately. To say that you have to 'phone up somebody—I believe the suggestion was made that you might even have to telephone the noble Earl, Lord Mansfield—is rather ridiculous. The noble Lord, Lord Burton, says it is "baloney", but I would say that he is talking baloney, if I may say so, on this occasion. Under Clause 5A(1) it is quite ridiculous to expect the farmers to do that.
Lord Dulverton: With the leave of the Committee, I should like to comment on the point made by the noble Lord, Lord John-Mackie. He said that I had accused him of knowing not much about deer. If I understood him aright, very recently he passed a comment to me in this House that he did not know much about them; but I am not accusing him in this regard.
Viscount Thurso: I should also point out that if Clause 5A is introduced it will in fact remove from farmers a right which they have enjoyed since time immemorial. It is a very important point.
Lord Glenarthur: The noble Viscount, Lord Thurso, is quite right when he says that the effect of the suggested Clause 5A, as put forward by the noble Viscount, Lord Massereene, would be seriously to diminish the rights of occupiers which they have held for a very long time. It would prohibit any tenant from killing deer on his land until he had given the landlord or the Red Deer Commission 24 hours' notice. First, there is a technical defect in the amendment in that subsection (1) does not make clear what would be the effect on an owner-occupier. Possibly, he can be deemed to notify himself, though if that be the case it would appear that, having done so, he would have to wait 24 hours before doing anything about it. Or it might he that he would be obliged to give notice to the commission, but in that case I cannot imagine what action the commission might take on the information.
But there is a more fundamental objection. It is simply that whenever deer come on to a crop the occupier would be forced to wait 24 hours before he

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could take effective action. But as the noble Viscount said, and despite what my noble friend Lord Burton said, experience has proved that the most effective action is often to shoot promptly the first deer that arrives, which will deter the others. Otherwise, more deer will follow, so that by the time the farmer can start shooting he will have many more beasts to deal with and more damage will be caused. As I said in relation to the amendment of my noble friend Lord Glenkinglas, I have sympathy with the idea that the owner should be able to get some information on what is happening to his deer stock, but I do not believe that this solution provides the answer.
Viscount Massereene and Ferrard: The point about notifying the owner within 24 hours is that the owner will get rid of the deer far more efficiently and far less cruelly than the occupier. The occupier may not be very used to deer. He may wound them and will probably shoot deer of the wrong sex, but the owner will usually be far more efficient. As my noble friend Lord Burton said, you can easily keep deer off a field for 24 hours. There are several easy ways. You can drag a carcase around a field, because the slighest taint of blood will keep them away for 24 hours. As my noble friend said, you can also use flashing lights and all the other methods. In this whole Bill, the odds are loaded against the owner and, strictly speaking, it is not a fair Bill. I beg leave to withdraw the amendment.
Lord Burton: Before my noble friend withdraws the amendment, I wonder whether any noble Lords here have had experience of tenants running around their property at night, with a light and without any notification. It is an extreme aggravation to the staff who are supposed to look after that ground. You do not know what the lights are doing in the fields or the woods. I have quoted what happened on three or four different occasions this winter. I was taken up by the noble Lord, Lord John-Mackie, who admitted that he himself did not have much experience. But I have had practical experience, and I do not see how your Lordships can tolerate people running around at night in this way.
Lord John-Mackie: The noble Lord mentioned shooting at night, but on this occasion we are talking about shooting in the daytime. I have great experience of deer on agricultural land in Epping Forest, not 22 miles from where your Lordships are sitting. Fallow deer there do as much damage to agricultural land as red deer.
Amendment, by leave, withdrawn.
Clause 3 [Power of Commission to deal with marauding deer]:
6.35 p.m.
Lord Northfield Lord Northfield moved Amendment No. 9:
Page 2, line 20, at end insert—
("( ) for the word "substantial" there shall he substituted the word "serious";").
The noble Lord said: In speaking to this amendment, it might be for the convenience of the Committee if I
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also speak to Amendments Nos. 16 and 92 which have the same point at issue. I was prepared to move this amendment at reasonable length, but as I understand that the promoter of the Bill, the noble Lord, Lord Glenarthur, may be inclined to accept it, I shall be more brief than I had originally intended.
In Clause 3 we are seeking to amend Section 6 of the 1959 Act, which deals with the power of the commission to deal with marauding deer. It states, in effect, that the commission, once satisfied that there is damage, can authorise in writing, with conditions if they think fit, any person who is competent to do so to follow and kill the deer. In speaking of the damage, the 1959 Act qualifies the word "damage" by the word "substantial". I am seeking in this amendment to alter that to "serious damage" and I shall explain why.
Since the 1959 Act was enacted, practice in this matter has changed and that is the most important point of all. Indeed, when the 1962 Act was under discussion in your Lordships' House, the father of the present Minister of State, the last Earl of Mansfield, used the words "undue damage" presumably in an attempt to describe some more restrictive exemption. Eventually, after some further discussion, the word "serious" was decided upon and that word has been carried on in many statutes to mean precisely what the noble Earl's father was talking about; that is, undue damage, serious damage and something more than substantial.
The latest example of this of which we must take note is the Government's own Wildlife and Countryside Act, most of which I emphasise applies to Scotland. So we have the words "serious damage" used in like contexts in an Act which now applies to Scotland. The word "serious" has supplanted the word "substantial". Indeed, in a debate in the other place on the 1963 Act, the Government pointed out the difference and said that the Scottish Act,
"which at this point is not followed by the Bill"—
that is, the Bill which was then under discussion—
"leaves the onus on the occupier to prove that his action was necessary for the purpose of preventing serious damage to his crops."
The word "serious" was already creeping in.
The Wildlife and Countryside Act is not the only pedigree of this Bill. One could mention the Protection of Birds Act, the Conservation of Wild Creatures and Wild Plants Act—which has become part of the Wildlife and Countryside Act—the Badgers Act and the Deer Act 1963, which applies to England, and the Deer Act 1980, which applies to England and Wales. So one can trace the way in which the word "substantial" has been steadily dropped from legislation since the 1959 Act, and it now seems proper to bring this Bill into line.
I would mention one final point. We are here trying to say that the damage must not just be pretty bad; it must be weighty, important and grave and that is something more than substantial. If you look up the word "serious" in the Shorter Oxford English Dictionary, you find quoted as an example:
"The damage is not thought to be serious".
That is a precise example of the way in which "serious" and "damage" are used together to mean a fairly

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weightly form of damage. That is the reason for the amendment. I repeat that we want a word which shows that the consequences or the effects must be serious, and I do not think that the word "substantial" does that. It is time that we brought it up to date. I beg to move.
Lord Burton: I do not want to take up your Lordships' time on this amendment. There is not a great deal to choose between "serious" and "substantial". However, the word "substantial" was chosen by the working party when we discussed the legislation in Inverness with practically all the parties involved. It seems to have been the preferred word. This matter was discussed by a number of other bodies upon which I sat and they all seemed to prefer the word "substantial" to the word "serious ". If, on the other hand, the noble Lord, Lord Northfield, who has no doubt studied the matter, considers that the word "serious" is better than the word "substantial", I shall be happy to accept it. Nevertheless, I should prefer the word "substantial" to be retained.
Lord Glenarthur: I am delighted to know that the noble Lord, Lord Northfield, has spent hours thumbing through dictionaries. I can assure him that I have. I have spent more time during the last few weeks discussing the relative merits of "substantial" and "serious" than upon almost anything else. I accept that damage needs to be qualified in some way, and the choice is between "substantial" and "serious". As the noble Lord said, the word "serious" has been creeping in, for very good reasons, over the years. I am very happy that the word "serious" should be substituted for "substantial", and therefore I shall accept both this amendment and the related Amendments Nos. 16 and 92.
On Question, amendment agreed to.
Viscount Massereene and Ferrard Viscount Massereene and Ferrard moved Amendment No. 10:
Page 2, line 22, after (" "any") insert ("fenced or otherwise enclosed").
The noble Viscount said: This amendment raises the question of what is meant by "enclosed". Nobody appears to have arrived at a conclusion, which rather surprises me. My amendment suggests that the words "fenced or otherwise enclosed" should be inserted after the word "any" in line 22 on Page 2 of the Bill. The enclosure could be effected by a wall, or a fence, or even a dry moat, though one seldom sees dry moats in Scotland.
If I may speak from personal experience, I have a deer forest and various tenants. One of my tenants farms about 12,000 acres. On this land there are several hundreds of acres of natural forest. This is on lowland, none of which is higher than 400 or 500 feet at the most. When the weather is bad, the deer come into these woods—as they have done for centuries. It appears to me that because of the way the Bill is drafted the Red Deer Commission could come into those woods and slaughter the deer if the occupier complained. The deer have never done any damage to these woods, which have been there for hundreds of years. The only animals which are doing damage to the woods are the sheep They eat all the young
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seedlings. Therefore, when the gales come the trees are blown down. Eventually there will be no natural woodland. There are also mature larch and mature pine trees on this land. The deer have free access to those.
How will one define enclosed agricultural land? I know of farmers who have put up a few rotten posts and one wire and called that enclosed land. They then attract the deer and shoot them. It brings in a far larger income for some farmers than they can earn from farming. I should like the land where deer can be shot, by the occupier asking the Red Deer Commission to do it or by the occupier shooting them himself, to be enclosed. I have never understood why it is that we cannot by statute say that such land—real agricultural land and young plantations—should not be enclosed by a proper deer fence. There would then be no trouble and bad feeling between owners and occupiers. I beg to move.
The Earl of Mansfield: It may be for the assistance of the Committee—I make no remark as to the desirability or otherwise of the amendment—if I said a word or two about enclosed land which causes a lot of difficulty. Enclosed woodland causes equally as much. So far as I know, there is no statutory definition of either term. A number of courts have sought to interpret it, in particular in an English case called Jemmison v. Priddle. Basically, the expression is a term of art. They way the courts interpret it is as land which is apt to include all ordinary farmland and also woodlands where there is a boundary which distinguishes it from moorland and similar types of land, whether the boundary is natural or man made. There does not seem to be any difference in the approach of the courts in Scotland to those in England and the terms are used more or less freely in both countries. The point is that whatever it is that encloses the land or the woodland can be something as man made as an effective fence, or as man made as an ineffective fence or as natural as a burn.
Lord Glenarthur: The proposed amendment would restrict the Red Deer Commission's power to deal with marauding deer to enclosed land. Whatever may be its intent, the effect of the amendment would be to nullify the commission's principal deer control power under Section 6 of the 1959 Act. What it proposes is nothing less than the removal of the main legal power to deal with marauding deer on unenclosed land. I do not think I should be putting it too strongly if I said that the effect of the amendment would be to make not just my Bill but the 1959 Act itself virtually unworkable. There are specific legal powers to deal with deer on enclosed land elsewhere in the Act—that is, under Section 33. Section 6 of the Act is designed for deer control on deer range generally—that is, on unenclosed land. If the powers of Section 6 were not available, I can only suppose that the commission would have to fall back on much more sweeping powers such as those which are available to them under Section 7 of the 1959 Act, which means the imposition of control schemes. That is a reserve power which has rarely, if ever, been used. I think my noble friend would agree that it would be much better if it were to stay that way and were not to be used.
Viscount Thurso: It might possibly be better if the Red Deer Commission were to fall back upon such expedients as control schemes. This has all to do with the Red Deer Commission deciding what the relative stocking of deer and sheep on hill land shall be. I believe that people should understand that what is being sought is the right to set down that one may have only so many deer per acre. That is what underlies this particular part of the Bill. Whereas I would fight to the death for the right of the farmer to obtain compensation by shooting marauding deer upon land that he has tilled and cultivated, I do believe that the deer, on the other hand, are entitled to some ground on which they may roam.
This is the point here: that if one is keeping a part of the Highlands of Scotland as unenclosed land available to deer, then the deer have somewhere to go. If one says that they may not cross through the fence and go on to enclosed land, everybody understands this—except perhaps the deer; but one can put that right by going after those deer which maraud. But once one is on the hill, one is dealing with a very "grey" area which requires clarification. I am not sure that it requires clarification by this amendment, but I believe it requires clarification after what has been said by the noble Lord, Glenarthur, in justification of his attitude to this amendment. I say to him that I hope that at some stage we may be able to clarify this point.
Lord Glenarthur: There are other amendments down which relate to Clause 6 and we shall be discussing them in due course. It is possible that there will be further improvements to that clause. As to the question of deer on hill land generally, there is a need for the Red Deer Commission to have a controlling power on unenclosed land. We heard from my noble friend what the definition of enclosed land might be, but Section 6 as it stands works very well and there is quite a lot of doubt as to whether or not Section 7 would be really effective in the way that he described the Red Deer Commission putting it into effect. I hope that the noble Viscount will see fit to withdraw his amendment.
Viscount Massereene and Ferrard: The position is further complicated by the fact that stags are migratory. I have three times the number of stags on my land in the summer as I do in the winter. It is all very well for the Red Deer Commission to set themselves up as God above the owner as to how many deer he should have, but it is very difficult to judge, because hinds always stay in the same place while stags do not. We have managed very well in the past, with the owners actually managing their deer but still, I presume that I have to withdraw the amendment.
Lord Ross of Marnock: The noble Viscount talked about the owners "managing their deer". Does anybody own the deer?
Viscount Massereene and Ferrard: On my forest we brought in deer to improve the stock, and in certain forests we do feed them sometimes.
Lord Ross of Marnock: But as I understand it, no one owns the deer. The deer is a wild animal. It is only owned by somebody when that somebody kills it, and they should kill it lawfully.
Viscount Massereene and Ferrard: I agree that the deer is a wild animal under existing law. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Lord Greenwood of Rossendale): I must point out that if Amendment No. 11 is agreed to, I shall not be able to call Amendment No. 13.
Viscount Massereene and Ferrard: We have other amendments coming up which are better than Amendment No. 11, and so I shall not move that amendment.
[Amendment No. II not moved.]
The Deputy Chairman of Committees: If Amendment No. 12 is agreed to, I shall not be able to call Amendment No. 13 or Amendment No. 14.
6.55 p.m.
Lord Northfield Lord Northfield moved Amendment No. 12:
Page 2, leave out lines 24 and 25.
The noble Lord said: We are still dealing with Section 6 of the 1959 Act, which deals with the power of the commission to deal with marauding deer. The reason for my amendment to delete lines 24 and 25 is that those words are safely in the first subsection of Section 6 of the 1959 Act, and to put them in at this point again would make the section almost unreadable by simple repetition. I should like to read out how Section 6(1) would read if lines 24 and 25 stay in the Bill:
"Where the commission are satisfied that red deer or sika deer are causing serious damage to crops, pasture, animal or human foodstuffs, or trees on any agricultural land or woodland or garden ground, or injury to farm animals…"
and then going over it all again, as the Bill would now propose,
"(including competing with them for food) or damage to agricultural production".
The whole thing is so repetitive that if is almost nonsense. I believe it would be much better to leave out lines 24 and 25 because they are safely in the subsection already, in the 1959 Act.
Lord Burton: I am a bit of a quandary because I am not sure that the noble Lord is not right. On the other hand, my noble friend behind me, Lord Dulverton, has proposed very much better wording than this. I believe that for the first time this evening my noble friend who is moving the Bill may agree that this particular part of the Bill is not well worded and that it certainly wants revising. But whether we should revise it by taking the amendment moved by the noble Lord, Lord Northfield, and removing lines 24 and 25 altogether, or whether we use my noble friend Lord Dulverton's amendment, leaves me in a bit of a quandary.
Viscount Thurso: I should be happy to take the amendment proposed by the noble Lord, Lord Northfield, and let my amendment fall.
Lord Glenarthur: I agree with the noble Lord. Lord Northfield, that Section 6 of the 1959 Act, as these amendments detail, will result in fairly arduous reading. The amendment of the noble Lord, Lord Northfield, would remove from the categories of damage for which the Red Deer Commission may employ their control, powers, competition by deer with farm animals for food and damage to agricultural production. I accept that there may be some in-precision in the term "competing with them for food" and I hope to deal with this point in a moment when another amendment is moved by my noble friend Lord Dulverton. But there is some real point in lines 24 and 25 in that damage done to agriculture by deer can go beyond the destruction of crops and pasture. For example, it can extend to the impoverishment of pasture, which can be evidenced perhaps by poorer lambing.
Lord Northfield: But that is already in the clause, in Section 6(1). There already appears in line 4 of Section 6(1):
"pasture, or animal or human foodstuffs."
So why repeat it?
Lord Glenarthur: I agree, and I said just now that, yes, there is a lot of complexity and perhaps unecessary complication in the wording of this section. I hope that I can explain a little further when we come to my noble friend Lord Dulverton's amendment. I hope that the noble Lord, Lord Northfield, will withdraw his amendment.
Lord Burton: Would it be possible for the two amendments to be discussed together? If we can hear what the noble Lord, Lord Dulverton, has to say then we might be able to decide which amendment to concentrate on.
Lord Glenarthur: I am perfectly happy for the two amendments to be taken together, and so perhaps my noble friend Lord Dulverton would like to speak to his amendment as well.
Lord Dulverton: I was diffident about interfering with the noble Lord, Lord Northfield, in his amendment, but there is one point I should like to place before the Committee, in the wording I have suggested as an alternative to the five or six words in parenthesis. I quite take the point made by the noble Lord, Lord Northfield, that the words are somewhat repetitive in their sense with the words which appear in the 1959 Act. Nevertheless, I would advance the suggestion to your Lordships that there is some merit in them over and above those used in the 1959 Act, and certainly those used in parenthesis here in this Bill.
I have admitted to your Lordships that I am a member of the commission. I see how the commission work and the troubles they have with marauding, overgrazing and so on. On this point, as on many others which occur in this Bill, I have come to respect the judgment of the commissioners and of the staff by whom
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they are served. Simply to say "damage to pasture" is very loose indeed, as we discussed in Second Reading; it does put an awful onus on the deer commission to interpret what degree of damage is required before action of a drastic nature is justified. There are, as I think I mentioned at Second Reading, a number of scientific papers which advance the thesis that grazings by different kinds of animals—in the Highlands probably sheep, cattle and deer—are to a great extent complementary and non-competitive. But there can arise a situation where there is over-stocking by one or other or all three of these species, and then is the time when action is really called for.
That is why I have suggested in my amendment the words, "serious over-grazing of pastures" and, "competing with farm animals for supplementary feeding", because that is a different sort of case. As we all know, things like cattle nuts, turnips, hand feed of one sort or another, are supplied by farmers in the winter months for cattle and sheep. In the case of sheep in particular there can be instances—there have been instances and there are instances—of a stag coming down off the hill; he weighs twice or three times as much as the sheep, and he will not have cast his antlers till the end of March, and he will see the sheep off and get the nuts or turnips or whatever it is. So I would suggest to your Lordships that the wording I have suggested here may have some merit.
Viscount Thurso: Before the noble Lord sits down, are we to take it that he is suggesting that if the ground is over-stocked with sheep you shoot the deer? Is that what the noble Lord is saying?
Lord Dulverton: If the over-stocking was purely by sheep and not by deer, certainly the Red Deer Commission would not countenance the shooting of deer.
Lord Glenarthur: There is merit in both amendments. I agree entirely that the wording here is very convoluted indeed. I also think Lord Dulverton's amendment to specify rather more accurately over-grazing of pastures and competing with farm animals for supplementary feeding, is a very good form of words. We have to try to define as precisely as possible the circumstances in which the commission may legitimately intervene. I would like to take both amendments away and look at the situation again and put something down on Report.
Lord Northfield: I am very happy with that assurance, and I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 13 and 14 not moved.]
On Question, Whether Clause 3, as amended, shall be agreed to?
Lord Houghton of Sowerby: Before we pass this clause may I make a few maverick comments on the attitude of the human species to animals. In the rubric here we see "Power of Commission to deal with marauding deer". It is true that that appears in the principal Act, but in this Bill this is the only guilt label fixed upon the deer. Most people have strong affection for the deer; the female of the species

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is lovable and elegant to look at; the male is a noble beast, and people are thronging to the Tate Gallery at the present time to see Landseer's portrayal of a Stag at Bay.
It is a curious thing that if we human beings want to repel or destroy an animal we must first fix it with a guilt label. If it is a fox we call it a pest and that justifies hunting it, gassing it, snaring it, and destroying it. If it is a lower mammal we will call it vermin and that will justify painful death by toxic poisons and so forth. When Aneurin Bevan had a lapse and described the Tory Party as being lower than vermin the whole nation was shocked, especially the Labour Party; ill as they thought of the Tory Party they would never classify them as vermin. Poor Aneurin Bevan spent 24 hours pacing up and down wishing he had bitten the end of his tongue off. That is what happens when you fix the wrong sort of guilt label on the wrong sort of species.
These marauding deer have to be repelled or killed, but you must first classify them as being in the wrong: you must convict them of something. I do not know whether the original marauders were men or animals or whether they were all animals and they were all marauders. Since my noble friend Lord Northfield has been looking at his dictionary I have been looking at mine: to maraud is to make a plundering raid, to go about pilfering. Noble Lords who suffer from the depredations of deer may say that is just what they do and there could not be a more apt description of this malpractice, which must be repelled or punished.
But the deer are unaware of this guilty behaviour. They are going in search of food. Why cannot we then put in the rubric, "Power of Commission to deal with deer in search of food"? After all, that is what it is. If in their search for food they are doing serious damage to agriculture and taking food out of the mouths of human beings, or even sheep, that puts them in the wrong and has to be punished. If they were elephants we would probably say, "to deal with rogue elephants". I know that some Members of Parliament have been described as "rogue elephants" at times, which has usually meant that they have a mind of their own and do not do what they are told, which probably applies to rogue deer as well as the marauding deer.
There is a serious note here despite this apparent levity on my part. I thought that the Wildlife and Countryside Bill had lifted the relationship between mankind and the animal kingdom to a much higher level than before. We had some most elevating debates on the relationship between man and the animal kingdom. Therefore, I do not think that merely to bring forward in this Bill the out-of-date guilt label on deer of the 1959 Act is satisfactory. I think we should have an uplifting description of the deer, even though it might be in the wrong. However, I have said enough. I think it is as well that we should reconsider at a later stage of the Bill whether we remove the one guilt label which is put upon the deer. We put it upon the deer when it is in search of its basic requirements, because man of course drives the animal off its habitat, cultivates the land and uses it for his own purposes, and then when the deer comes back for food they say it is maurauding.
It is all a matter of balance. There are equal rights
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here. There is a relationship which has to be acknowledged and put on a somewhat higher plane. That is the situation. I hope that later I shall be able to find a form of words which will eliminate the rubric "maurauding deer".
Clause 3, as amended, agreed to.
Clause 4 [Further power of Commission to deal with marauding deer]:
The Deputy Chairman of Committees: The next amendment is Amendment No. 15. I must tell your Lordships that if this amendment is agreed to, I shall not be able to call Amendments Nos. 16, 17 and 18.
7.11 p.m.
Lord Burton Lord Burton moved Amendment No. 15:
Page 2, line 30, leave out from beginning to end of line 38 and insert—
("(1) Where the Commission are satisfied that substantial damage has been caused by deer to agricultural land or to woodland they may, with the consent of the owner and occupier thereof, for the purpose of preventing further substantial damage, kill such deer of species other than red deer or sika which their servants may encounter thereon in the course of their duties.").
The noble Lord said: I beg to move Amendment No. 15. I am not quite certain, but I think that if this amendment were accepted it would not be necessary to call Amendments Nos. 16 and 17 or certainly one of them. Also, when we gave way just now to the noble Lord, Lord Northfield, on the question of "serious" or "substantial", I thought that we might run into further difficulties. This amendment contains the word "substantial" but the question of "substantial" in this connection is a fairly minor one and clearly if the amendment were accepted, then at some later stage we would want to substitute "serious". What also has to be added is the owner. He is not mentioned and I feel that it is important that the owner should be consulted as well.
I should also like to say at this point, that the noble Lord, Lord Houghton of Sowerby, made a most opportune intervention, because he said that the animal must first be guilty. If we look at the wording in the Bill, it says:
"are likely to cause damage".
They do not in any way have to be guilty at the time: it is just that they thought that they might be going to do damage. My amendment takes that out, because at least they must be guilty; it must not be thought that they might be guilty. Therefore, I beg to move my amendment, which I think contains very much better wording than that in the Bill.
Viscount Massereene and Ferrard: I should like to support the amendment. I presume that the amendment applies to roe deer and fallow deer. There are not many fallow deer in Scotland, but there are a tremendous number of roe deer. Roe deer in a mature forest cannot do any damage, but they can do a lot of damage in young plantations. I am very glad that my noble friend Lord Burton has brought the owner in here because, as I said earlier, the owner comes out of this rather badly. I can see no reason why this

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amendment cannot be accepted. I shall be very interested and pleased to hear what my noble friend Lord Glenarthur has to say about it.
Lord Glenarthur: The whole question of owners is something which we discussed previously and will come back to again. But new Section 6A of the Bill is, in a sense, complementary to Section 6 of the 1959 Act. It is designed to come into play in conditions where the commission's staff, already in the field, are operating under Section 6. I believe, therefore, that, on reflection and in the light of the amendment that we have seen, the terms of new Section 6A should be made as similar as appropriate to the existing Section 6. My noble friend's amendment in fact goes some way in that direction. It would qualify damage as "substantial" although we have now agreed to call it "serious". It requires that damage should actually be occurring rather than merely likely to occur, and it makes some reference to the interests of the owner, albeit not in the same terms as are found in Section 6. If my noble friend would agree to withdraw his amendment, I would be happy to take the matter away, reconsider it, and perhaps draft another amendment in the light of those considerations.
Lord Burton: I shall have great pleasure in withdrawing the amendment. I am delighted that at long last we have found something on which we largely agree. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees: Amendment No. 16 has already been discussed.
Lord Northfield Lord Northfield moved Amendment No. 16:
Page 2, line 32, after ("cause") insert ("serious").
On Question, amendment agreed to.
[Amendments Nos.17 and 18 not moved.]
The Deputy Chairman of Committees: The next amendment is Amendment No. 19. I think that this was debated with Amendment No. 9.
Lord Glenarthur Lord Glenarthur moved Amendment No. 19:
Page 2, line 38, at end insert—
("( ) The Commission shall give to the onwer of the agricultural land or woodland concerned such notice of their intention to kill deer under this section as may be practicable.").
The noble Lord said: I beg to move Amendment No. 19. Where the Commission take action under Section 6 of the 1959 Act they are required to give to the owner of the land such notice as may be practicable. The point has been quite fairly made that the owner has no less interest in action under the new Section 6A. This amendment is intended to achieve that effect. I beg to move.
Lord Burton: If my noble friend had ended his amendment at "section" and left out "as may be practicable" then I would have been quite happy. However, what I am concerned about here is that the commission would be out, they would find some roe deer about, and they would shoot them and then they
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would say, "Oh well, we could not notify the owner. We had seen them in the wood and we have shot them. We are now notifying the owner after the event has taken place". It really depends on what is "as may be practicable". It could well be an excuse for not giving prior notice to the owner.
Lord Glenarthur: I understand what the noble Lord is saying, but in point of fact, the owner will be aware, under Section 6, that the Red Deer Commission are there anyway. I do not think that one can cast aspersions at the Red Deer Commission in that way. I hope that that satisfies the noble Lord.
On Question, amendment agreed to.
On Question, Whether Clause 4, as amended, shall stand part of the Bill?
Lord Burton: I should like to draw attention to subsection (2) where it says: "and 23(1)". This would permit the Red Deer Commission to shoot roe deer at night. From what your Lordships said on Second Reading, I got the impression that most of your Lordships were very opposed to roe deer being shot at night. I should like to draw attention to this matter, because I think that perhaps we should look at it again on Report.
Lord Glenarthur: We shall be coming to Clause 8 in due course, which deals in detail with the whole question of night shooting. Therefore, perhaps we could leave the matter until then.
Clause 4 as amended agreed to.
[Amendment No. 20 not moved.]
Clause 5 [Chairman of Commission]:
7.19 p.m.
Viscount Thurso Viscount Thurso moved Amendment No. 21:
Page 3, leave out lines 26 to 29.
The noble Viscount said: I beg to move Amendment No. 21. This amendment deals with the question of the chairman of the Red Deer Commission. I feel here that the problem is that the chairmanship of the Red Deer Commission is a part-time appointment and that it is desirable that it should remain such, an appointment that is suitable for somebody who has a wide and active connection and experience with deer. I think that it is important that it should not become a job of a professional nature which is given to somebody whole-time; he should not expect to hold it a long time and then be pensioned at the end of it.
One of the great successes of the Red Deer Commission has been the way in which those interested in deer in one way or another have been brought together because of the fact that they are not solely professional people; they are experienced people and they are not merely serving time and hoping for pensions at the end of the day. I think that it weakens the position of the chairman to make him appear different from the other members of the commission in this respect. I agree that he has to be paid because he has to give up his time, but I think that it would be wiser to leave out his pension.
Lord Glenkinglas: I should like to support the noble Viscount, Lord Thurso, on this amendment, One of the great dangers of the modern age is the proliferation of index-linked pensions. If we are to bring all the Quangos into it on the ground of uniformity, before long the taxpayer in this country will be in a very miserable condition. I entirely agree with the noble Viscount, Lord Thurso, that it is essential for a chairman of a deer commission to be fairly young, because he has to be active, get about and look in the forests and the hills, and not just take everything for granted Secondly, it is highly desirable that the post moves around the different people concerned with deer. Therefore, to my mind, a five-year or a six-year appointment is perfectly adequate. At the end of that time the person concerned may well be 20 years away from being pensionable, and the whole idea of index-linked pensions at that age is entirely abhorrent. I shall not go on to my amendment, which is rather more wide-ranging, until we have dealt with this one, but I entirely support this amendment.
Viscount Massereene and Ferrard: I should like very strongly to support this amendment. Speaking from memory, in the year before last the percentage increase in index-linked pensions in relation to inflation was £398 million for Government servants. I do not have the figures for last year, but I presume that they will be about £450 million; they may even be approaching £500 million. What they will be for this year, heaven knows!—perhaps £600 million. Therefore, on the grounds of economy, I most heartily support this amendment.
Lord John-Mackie: It is rather difficult to know whether noble Lords are against a pension or against an index-linked pension.
Viscount Massereene and Ferrard: I am not against a pension; I am against an index-linked pension. I am not against the old-age pension.
Lord Glenkinglas: I am against a pension.
Lord Ross of Marnock: I thought that the amendment related to the pension rather than to an index-linked pension. If you oppose and get rid of the pension, it does not matter whether or not it is index-linked, it is not in the Bill. I also raised this matter on Second Reading because I am interested in it. Let us face it, this clause is a Government clause. No Private Member puts this in without having taken the advice of the Government. Indeed, I say this to the noble Lord, Lord Glenarthur: one of the matters that tend to hold up Private Member's Bills when they reach another place is that they require a money resolution. That will not be a difficulty for the noble Lord, but it will he a difficulty for the person who he persuades to do the kind of work that he innocently undertook in relation to this Bill on behalf of whoever it was who persuaded him.
The Bill states that:
"The Secretary of State may make such provision"—
there is no great promise for the chairman of the Red Deer Commission here. It goes on:
"if any, as he may"—
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that is, the Secretary of State—
"with the approval of the Treasury".
All these hurdles are erected, and I feel sorry for the poor chairman of the Red Deer Commission. The Explanatory Memorandum tells us that the effect of the Bill on public expenditure is expected to be minimal. What kind of pension is this to be? The suggestion is, or may be,
"…if any, with the approval of the Treasury".
A few of us here have experience of the Treasury and, of course, as far as the Treasury is concerned, it will be minimal. But the suggestion that has been made, that this is coming into Bill after Bill, is always one that surprises me. I do not know whether it has anything to do with the usual business nowadays that everyone has to be either in a Government pension scheme or something equivalent to a Government pension scheme. There may be some adequate explanation for it, but it is the kind of thing that certainly does not please me, and I tend to favour this amendment.
Lord Houghton of Sowerby: I do not see any reason at all why the index-linked pension should be thrown into this discussion. There are probably more index-linked pensions received by noble Lords here than by those in other institutions of which we know. All people on national insurance retirement pensions are on index-linked pensions. So we must not disparage the index-linked pension and hang our prejudice upon this poor Red Deer Commission chairman, who does not even have his pension yet. So, whether or not it will be index-linked, we do not know.
I must declare an interest in that I am the recipient of an index-linked pension. Of course, my trade union instincts would lead me to suggest that those of us who have index-linked pensions are probably in danger, and that it is desirable that there should not be any more of them. After all, this is how we all feel; do not let us have too many. The more there are, the greater the danger; so let us keep it as a kind of closed shop. But not in this Bill.
I think that the noble Lord, Lord Glenarthur, ought to confess to your Lordships' Committee who prompted this. The voice may be the voice of Jacob, but the hand surely is the hand of Esau. As my noble friend Lord Ross said, who put him up to this?
When we come to look at Clause 5 in its broader context, we shall want to know what sort of chairmen of the Red Deer Commission there have been in the past that we need a Clause 5 like this to safeguard the Realm from all sorts of malefactors and incompetents. Heavens above! I should have thought that anyone who might fall into any of these categories was scarcely fit for employment at all, much less as chairman of the Red Deer Commission.
However, I support the amendment because I do not think that the chairman of the Red Deer Commission will be long enough there to justify a pension. He ought not to be there long enough to justify a pension, especially—as the noble Lord said a few moments ago—if he is young and active. He must get around and see deer, especially marauding deer; he must look at them very closely indeed; he will probably have to chase them to know what they look like. In those circumstances, he will be there surely only for the best years

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of his life and he will not be thinking of a pension at all. He will probably earn one later on in a much easier appointment. I think that we ought to delete the pension from the clause, and when we come to the clause itself, we might think of deleting a bit more.
Lord Burton: On this occasion I think that I must disagree with the noble Lord, Lord Houghton. The current chairman is very fit and active, and we hope that he will be there for many years yet.
The Minister of State, Scottish Office (The Earl of Mansfield): As this is a matter of Government policy, perhaps I should seek to justify it. It is perfectly obvious from the debate tonight that the Red Deer Commission is such a well-known body in Scotland, and no doubt to many noble Lords who are on it, who have been on it or who know many people on it, it has a sort of Corinthian, I might say amateurish, air. But really that does not justify, in my submission to the Committee, the meanness of spirit that has been exhibited. The noble Viscount, Lord Thurso, said that to pay the poor chairman a pension actually weakens his position, rather in the same way as noble Lords in your Lordships' House, when expenses were first mooted, rejected them because it might weaken their position. When I was at the Bar it was proposed that the minimum fee should go from 1 guinea to 2 guineas, and I remember that that was considered something which really no gentleman should talk about, and anyway it would weaken our position.
If we have any statutory body with a full-time chairman, I do not suppose that anybody would argue that his terms of service should be any less favourable than those of any other public servant. If, on the other hand—and one gets this with certain Quangos—we have a chairman whose duties are purely formal and whose role is to preside over meetings of his particular body and thereafter not to have to do anything, then I do not suppose one would expect that he would get anything beyond his expenses and possibly some kind of an honorarium, and that happens in a number of cases. But here we have a part-time chairman who may he, and frequently is, called on to act between meetings and he is paid a salary.
His salary is based on the assumption that he devotes on average two days a week to commission business. This is a substantial proportion of a man's time. The policy of successive Governments has been, so far as possible, to standardise the conditions of chairmen and members of public boards of all sorts. The particular rule of thumb that has been adopted is that a post that is remunerated on a basis of two days a week or more should, in principle, be pensionable. Those are the terms that are applicable to members of the Crofters' Commission and also to members of the Highlands and Islands Development Board, which are two local and comparable examples.
What this part of the clause is designed to do, and indeed what Clause 5 does—and I dare say we shall come on to it in minute—is to bring the chairman of the Red Deer Commission into line with his peers; with the chairmen of other, similar bodies. The fact that he is not already in a position similar to his peers is an anomaly, and if the amendment of the noble
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Viscount, Lord Thurso, is agreed to it will merely perpertuate an anomaly, and I wonder whether the Committee means to be so ungenerous as that.
Viscount Thurso: What the Bill does not say is that any member of the Red Deer Commission who works two days a week, or more, will become pensionable. It merely mentions the chairman. In the case of the examples quoted by the noble Earl, Lord Mansfield, any member of the Highlands and Islands Development Board or any member of the Crofters' Commission, other than the chairman, who works two days a week, or more, becomes pensionable. That may, or may not, be a good idea, but here the chairman is being singled out.
There are a lot of local councillors who work for something approaching two days a week. In fact, I can think of chairmen of district councils who are also on regional councils who do every bit as much as this. Are we going to pension all of them I do not think that it is an anomaly. Here we are talking about somebody who is strictly part-time and he is remunerated for his time on a basis of two days a week, but I do not see why he should acquire a pension as a result of that. I hope, in spite of what has been said by the noble Earl, Lord Mansfield, that the noble Lord, Lord Glenarthur, will be able to accept this amendment.
Lord John-Mackie: I must declare an interest as an ex-chairman of the Forestry Commission. I have a small pension. This two days a week usually develops into three and sometimes four. I know that the present chairman of the Red Deer Commission is a very good chairman, indeed, and has done a lot of work—as do a lot of chairmen who have these positions, as the noble Earl, Lord Mansfield, mentioned. I see no reason why we should be different from anybody else. After all, if I remember rightly—and the noble Earl, Lord Mansfield, will put me right—we pay a subscription from our salary for this pension.
On Question, amendment negatived.
On Question, Whether Clause 5 shall stand part of the Bill?
7.36 p.m.
Lord Glenkinglas: This is where we get into more interesting fields. We have had the pleasure of listening to the noble Lord, Lord Houghton, as a trade unionist saying that he wants to have a closed shop, and we have listened to the noble Lord, Lord Ross of Marnock, warning my noble friend Lord Mansfield what happens if you have a money resolution in the House of Commons. Having suffered on many dozens of occasions from Lord Ross of Marnock's very detailed examination of money orders in the House of Commons, may I say that of course he is quite right.
I am sorry to say that I entirely disagree with my noble friend Lord Mansfield on this point. The Deer Act laid down that the Secretary of State, if I remember the phrase, could pay such salaries and expenses as was thought fit. This is what it should be. I do not believe in any of this. It should be a comparatively short-term appointment. You should be generous and you should pay a good salary to the person doing the work, but I do not believe in a mass of pensions being built up for part-time people.

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As the noble Viscount, Lord Thurso, said, there are a vast number of people in the Highlands working for two days or more a week who not only get no salary but get no pension either, and they work very hard in a number of ways. There is no reason why the Secretary of State should not continue, as he has been able to do very well for the past 13 of 14 years, to find most suitable people; paying them, I should think, not really enough, but there is no reason why he should not pay them more; and then changing to somebody else who will perhaps be equally good. So far as I know, we have had no difficulties at all with the chairmen of the Red Deer Commission. The system as laid down in the 1959 Act is easy to follow, and we simply do not need this clause, and I shall stick to keeping it out.
The Earl of Mansfield: I hope so far as the salary part of this is concerned that I do not need to go into it at great length. Members of the Red Deer Commission are not paid salaries. The only person who is paid a salary is the chariman. Whatever the inclinations of the Secretary of State—and I have one former one in front of me and another behind—the Treasury are never going to allow them to distribute largesse with a very free hand.
I come now to the rest of the clause. I explained on Second Reading that Clause 5 is in effect a tidying-up operation. What it does is to take advantage of this Bill to insert a number of what are now standard provisions relating to the chairmen and members of Quangos. Of course, the Red Deer Commission is a Quango. If it is said that this Bill should not be used for this purpose, my answer is that it is difficult to get legislative time and one has to seize what opportunities there are. It was thought, rightly, I am still convinced, that if one was to have tidying up and consistency, one must use whatever vehicle came to hand, so to speak—and what better than this little Bill?
None of these provisions is obligatory. Each is permissive. Each may or may not be used by the Secretary of State according to his judgment and discretion. I have to say again that if we do not take this opportunity to bring the Red Deer Commission into line with other Quangos, it will be out of line, and while noble Lords may say that that is no bad thing, one must have some sort of consistency of treatment in our body of legislation, and I should have thought that this was logical.
It must be remembered that the new provisions cover a miscellany of items relating to the chairman, including his dismissal on grounds of mental incapacity, bankruptcy and so on, and the payment of compensation otherwise than on the expiry of his term of office. I do not think I can help the Committee further. I have dealt with the question of pension; nobody will serve as chairman of the Red Deer Commission for a lifetime and therefore any pension he gets will be extremely modest. I suggest that it would be a pity not to allow the clause to stand part, when all it is doing is not introducing anything startling but merely bringing this Quango into line with other Quangos.
Lord Houghton of Sowerby: You Lordships' House is a suitable place for us to take a high moral line and probably not be too concerned with the squalid details of conditions of service. The main task for the chairman
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of the Red Deer Commission is that he should look after deer, especially marauding deer, and see that no ill befalls too many innocent deer. I wonder, however, from the reply of the noble Earl, Lord Mansfield, for how long the chairman is likely to have to hold office to qualify for a pension, become an alcoholic, goes bankrupt, falls flat on his face or whatever disability must be taken into account. Does the noble Earl really mean to say that the Secretary of State cannot remove the chairman of the commission unless as set out in the statute, considering what can befall a man to make him quite incapable of doing his job, such as being absent from meetings, being ill physically or mentally, in trouble with his creditors or in any other way being unable or unfit to discharge the duties of his office? Cannot the Secretary of State get rid of him without a statutory authority classifying the nature and degree of the delinquency of this person? Is he to be afraid of a claim for wrongful dismissal going to an industrial tribunal? Do all chairmen of Quangos have this kind of protection? I am mystified. No wonder there has been a lot of trouble with quangos in recent times, if that is how they work.
Probably we should delete the whole clause and let them deal with it in due course in another place. After all, we are not to be trusted with the money box; we are not allowed to open it or touch it or even write figures on bits of paper. We are, therefore, not really fit to deal with the conditions of service of the chairman of the commission. We are above—or maybe below—all that sort of thing, or we are incapacitated from dealing with important matters such as conditions of service. Therefore, we should let another place do the job. The Government would be dealing with the reality of politics if they reintroduced the clause in another place. After all, we do not know what mood the other place will be in after tomorrow. The noble Earl says we should not be ungenerous. I do not think we should anticipate the generosity of another place in present circumstances. We are too uncertain of the mood they will be in.
I suggest, with respect, to the noble Lord, Lord Glenarthur, that he should have said when this matter was first put to him, "No; deer are my business, not the conditions of the chairman of the Red Deer Commission". But he was not strong enough to resist the seductive advances of the Government, and the noble Earl has just confessed that when you want to do something, you choose whatever vehicle comes to hand, and Lord Glenarthur is being used now. That is not consistent with the dignity of a new noble Lord who made a wonderful maiden speech, who has established his position in your Lordships' House and who is now introducing a Bill of considerable content and nobility of purpose. He should rise to his feet straight away and say he accepts the amendment, and then let the Government find their vehicle somewhere else, not in your Lordships' House.
The Earl of Mansfield: Is the noble Lord, Lord Houghton, saying that your Lordships are so mentally incapacitated—no doubt through age or other infirmity—as not to be able to deal with this matter of the Secretary of State having a discretion over the chairman of the Red Deer Commission, who may have been

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driven so dotty by the people with whom he must deal that he is no longer fitted for the position?
Lord Houghton of Sowerby: I should have thought the Secretary of State, who makes the appointment, should have the power to terminate it. He should not need all this rigmarole to give him statutory authority to do a common sense thing, something which is clearly within his statutory duty.
Lord Ross of Marnock: Unfortunately, it is not within his statutory duty. The Secretary of State can do many things—indeed, is expected to do even more than the things outlined in statute—but the one thing he cannot do under the 1959 Act is act in the case of a chairman of the Red Deer Commission who really should not be holding that position. I am rather surprised at some of the remarks of my noble friend Lord Houghton. Can he imagine what would happen to his marauding deer if the chairman was incapacitated by reason of mental illness? He might then describe all the deer as marauding deer and send people out to deal with them. Then the first man to stand up in your Lordships' House and proclaim that something should be done about it would be my noble friend. Would he deny the Secretary of State his justifiable right to take action in such circumstances? So far as I know, we have already decided on subsection 2(c) because the Committee agreed to accept that part of the clause. Thus, our whole argument now is about subsection (2)(a) and (b).
I am sure the noble Lord, Lord Glenkinglas, will recall occasions in respect of particular persons in particular positions when he discovered that he did not have power to remove them. He will remember the tact and patience that had to be used, but still nothing was done, and certainly it was not always to the benefit of Scotland that such people remained in their positions. I can recall other legislation when provisions such as are contained in subsection (2)(a) to (d) were included, and they were included because of experience. That being so, it is right they should be in this measure. That being so, my noble friend Lord Houghton would, I am sure, be the last person to deny a humble Secretary of State for Scotland, treading carefully, as he does in all ways, to have the vital powers contained in this clause should everything else fail.
Clause 5 agreed to.
7.50 p.m.
Lord Northfield Lord Northfield moved Amendment No. 22:
After Clause 5, insert the following new clause:
("Shooting from vehicles.
After subsection (2) of section 23 of the said Act of 1959 there shall be inserted the following new subsections—
"(2A) Subject to subsection (2B) below, if any person discharges any firearm, or discharges or projects any missile, from any mechanically propelled vehicle at any deer, he shall be guilty of an offence.
(2B) Nothing in subsection (2A) above shall make unlawful—

(a) anything done by, or with the written authority of, the occupier of any enclosed land where deer not in the wild state are usually kept and done in relation to any deer on that land;

(b) anything done with the written authority of the Red
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Deer Commission in the exercise of their powers under section 33(4A) of this Act.").

The noble Lord said: After some amusing talk about "vehicles", we shall now come to some real vehicles. This amendment contains a provision against poaching and by way of preliminary remark I wish to say that in considering the Bill as at present drafted I do not think that its anti-poaching provisions are strong enough. I hope at Report stage to be able to move into the Bill some tougher anti-poaching provisions, as well as provisions to give the police wider powers over poaching.
The second point I want to make is that the amendment, which tries to prohibit the use of vehicles in connection with the shooting of deer, is not a slavish copy of what is in the English legislation. I gather that I have been accused of wanting to make the Scottish legislation identical with the English legislation; but I recognise the differences that there are in Scottish conditions, and I am not in any sense trying slavishly to copy what has been enacted in the English legislation. This amendment is one good example of my willingness to depart significantly from what is contained in the English Acts.
Under the English Deer Act 1963, which applies only to England and Wales, it is an offence to discharge any firearm or project any missile from any mechanically propelled vehicle. It is also an offence to
"use any mechanically propelled vehicle for the purpose of driving deer",
except in a deer park. So the English legislation is fairly swingeing on this matter. However, the amendment that I am now moving, is, I believe, more appropriate to Scottish conditions, though I gather that I am now being criticised in Scotland for it not being tough enough. I am now trying to compromise by providing in the amendment that it shall be an offence to shoot at deer from a vehicle, but it shall not be an offence to use a vehicle for driving deer. That is an important first difference from the English legislation. As I say, I am told that that is not tough enough and I am now under pressure from the other end to strengthen the point. Secondly, my new clause provides for the use of vehicles with the permission of the Red Deer Commission in the case of night shooting. So in two very important respects this is a much more lenient approach to the use of vehicles than is contained in the English and the Welsh legislation.
I do not know whether I need stress too much the point about vehicles and poachers. I shall give two quotations simply to strengthen the kind of case that was mentioned on Second Reading. The first quotation is from the Shooting Times of 21st January this year. I think that the remark in the article is slightly exaggerated, but it is still worth quoting. It reads:
"Motorised poaching gangs using machanised transport have swept up whole deer populations in remote Highland hinterlands which were traditional deer sanctuaries".
I should like to give another short quotation from the Shooting Times of last June, when it stated:
"…spotlighting from a vehicle at night is now the most widely used method employed by the commercial poacher. Its vulnerability at the moment is that any member of the public witnessing the probing finger of a spotlight used in the dark of night can be reasonably sure that it is used in poaching and so take measures to report it…".
I do not need to develop the case. It is surely accepted in the Committee, and in your Lordships' House, that vehicles are now the most important tool of the poacher. The problem that faces us is to strike a balance between the need to cut down and deter poaching and what I know to be a need in some situations—using vehicles in more legitimate circumstances by those shooting deer. It is said that sometimes it is convenient to shoot from the back of a stationary wagon, and you get a better shot at some of the deer. That might well be so. But what are we trying to do? We are really faced with an epidemic of poaching from vehicles, and it seems right to err on the side of outlawing vehicles in order to get at the biggest aid to poaching that we know; namely, the use of vehicles.
So my new clause makes it clear that it would be an offence to shoot at a deer from a mechanically propelled vehicle, but subsection (2B) qualifies the provision by stating that it does not apply to deer parks, so that would be excepted. Secondly, as I said earlier, it allows the use of vehicles with the authority of the Red Deer Commission in exercise of its powers under the provision concerned with night shooting. So there are important qualifications and differences compared with the English legislation, yet I hope leaving a new clause which ought to be acceptable to the Committee.
This is a very important issue. I understand the feelings about it, but I hope that the Committee will look at it from the point of view of deterring poaching as strongly as we can, even if we have to make some slight inroad into the freedom of legitimate people wanting to kill deer from vehicles. We must stretch the point as far as we reasonably can in the interests of trying to stop the poaching epidemic that is now sweeping across Scotland and which is a huge industry on a grand scale. I beg to move.
Lord Dulverton: I should like most emphatically to welcome the amendment of the noble Lord, Lord Northfield, for the reason that he has eloquently propounded to us. I am not greatly worried about his not including a provision on not being able to round up deer with vehicles because on the Highland landscape, at any rate, one cannot do that. There have been cases where deer have been rounded up by helicopter, but that is another matter. However, there is one question I should like to ask. Subsection (2A) of the amendment refers to,
"any person discharges any firearm, or discharges or projects any missile, from any mechanically propelled vehicle…".
I know of several cases where, quite legitimately, with due authority from the Nature Conservancy and the veterinarians, wild deer have been darted for capture outside enclosed land, on open hill ground. The noble Lord, Lord Northfield, is very thorough and I should not be surprised if he has looked into this point and has a very good answer to it. I wonder whether he has hoisted in (if I may use the expression) that possibility in relation to the words he uses in the amendment, "projects any missile…."
Lord Burton: I was delighted to hear the noble Lord, Lord Northfield, talking about the powers of apprehension of poachers, since clearly these are sadly lacking in the Bill. I had made a note to mention the point later, but he has beaten me to the gun.
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However, I feel some hesitation over his amendment as we have it before us. It is already illegal to shoot from the public highway. It is also illegal to take a vehicle off the public highway—I think it is five yards, or some such distance; I might not be quite correct about that—without the permission of the owner. It is contrary to the Road Traffic Act, but does not seem to be widely known. So in fact there is already a penalty for a poacher, if you can catch him; but that is another matter.
I think the thing most needed in this type of amendment is something to deal with helicopters, which my noble friend behind me mentioned. I wondered whether it might not meet the situation if, instead of having the amendment worded as it is, it said "from a moving vehicle", which would cover helicopters. I do not think it could be quite added into the wording here, but that is the intention. I suspect that that would effectively debar helicopters from being used. But I think there are occasions, such as the Nature Conservancy Council darting their animals and control at various times, when it is really preferable to use a vehicle. I know it is not a sporting thing and that it should not be used for sporting purposes, but I think there are times when it could be useful in control.
Lord Glenarthur: The noble Lord, Lord Northfield, has made some very valid points about the provisions in the Bill which seek to curb poaching. I look forward to the amendments which he proposes to move later in the Bill's passage to tighten up these provisions still further, where possible; but there are defects in this amendment. I think the point which was picked up by my noble friend Lord Dulverton about the projection of missiles is certainly a point which redounds to some extent on his argument. It is already an offence to shoot with anything other than a firearm in any case; but darting is something which is occasionally required.
I am a little curious about paragraph (a) of subsection (2B), which seeks to ban the practice in the open while allowing it, for example, on deer farms. There seems to me a lack of logic to some extent there, if it was a deer farm to which he was referring. I am not sure if that was the point he was driving at, but if it is more humane to animals to shoot them from a vehicle in close conditions then why should it be less so when they are elsewhere? So there are really two objections. First, it could have the effect of banning shooting from a stationary vehicle; and, as other noble Lords have said, there are cases when it can be very prudent to fire from the back of a vehicle. That is because the person who is firing will perhaps be firing nearer, and he will have a better view of the stag or the animal at which he is shooting. This is particularly so in woodlands, where tailboards or the roofs of landrovers provide a very good vantage point.
I can only add that I feel very strongly, as other noble Lords might as well, that shooting from a moving vehicle is a different matter. I take with some interest the point made by my noble friend Lord Burton about helicopters, because I do have another interest, and that is in helicopters. The other point about helicopters, of course, is that they can come to a hover and therefore remain stationary.

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I hope the noble Lord might see fit to withdraw his amendment in the light of the fact that there are certainly occasions on which it is only prudent to use a vehicle as a platform. So far as the question of driving deer is concerned, I understand that there are no known occasions of deer being driven in Scotland except by poachers.
Viscount Thurso: Before the noble Lord withdraws his amendment, if he does withdraw it, could the noble Lord, Lord Glenarthur, give us an assurance that he will enter into some discussions about a possible new clause to deal with this matter? Because I think we have here uncovered a practice which we do not want to encourage and which can be misused. I think it would be a pity to lose the opportunity of this passing vehicle, the Bill, to produce some legislation on this subject. So could the noble Lord, Lord Glenarthur, at least give us the assurance that he will enter into some discussions on this?
Lord Dulverton: May I add another point to what the noble Viscount has just said in relation to asking my noble friend to give further thought to this, with particular reference to helicopters, with which we know he is expert? I have known of cases where a helicopter has been used to move deer in not very satisfactory circumstances or for very satisfactory purposes. On the other hand, I have known them to be used very usefully in cases where red deer have somehow broken into forestry plantations in their young stage, and where it is frightfully difficult to move them out again, even if you take a bit of fence down, by the use of men or dogs, because the deer nearly always break back. But I have known instances where a helicopter has been used most successfully in driving red deer out of a planatation to which they have just gained access.
Lord Glenarthur: I am very grateful to the noble Viscount, Lord Thurso, for his suggestion, and, Yes, I think there is merit in what he says and that we ought to take it away and look at it again. This I will undertake to do. Before I sit down perhaps I may refer briefly to what was said by my noble friend Lord Dulverton. I have done many things with helicopters myself, but I am ashamed to say that one thing I have not done is anything in the way of driving deer or even taking a census of deer from the air. But my noble friend makes a good point. He makes a point which I have made here on more than one occasion, which is to try to enhance for everybody's benefit the versatility of helicopters. He makes a good point, and I am happy to take the amendment away and to look at it again.
Lord Ross of Marnock: Before the noble Lord sits down, as he is going to look at this thing again, could he tell us anything about this epidemic of poaching? It is a phrase which requires clarification and should be substantiated by a little more, I think, than just a couple of excerpts from some journal. It is the noble Lord in charge of the Bill, Lord Glenarthur, whom I am asking.
Lord Glenarthur: It was the noble Lord, Lord Northfield, who used the word "epidemic". It was not my word.
Viscount Massereene and Ferrard: The noble Lord, Lord Northfield, is quite correct, there is an epidemic of poaching. The big venison dealers in Scotland have said that last year the amount of venison exported to Germany legally was £2 million worth, and the amount exported illegally from poachers was to about the same value. There is an epidemic of poaching. I have seen quite a bit of it on my own land. There is a real epidemic.
Lord Ross of Marnock: If the noble Viscount has seen a bit of it on his own land, I take it that he then prosecuted, because in this case the word of one witness is enough. Is this epidemic that we hear about supported by a number of cases, or is this great epidemic something which escapes the law entirely?
Viscount Massereene and Ferrard: In the last case on my land it was a police prosecution, but they were fined very little so they will do it again. They shot nine deer, which they would have probably sold for £700 or £800, at least, and they were fined the usual trifling amount.
Lord Burton: I had not expected to enter into this realm tonight because this question of the apprehension of poachers is not dealt with particularly in the Bill, but without the authority of the landowner the police cannot pursue a poacher on to someone's land and apprehend him. Equally, the landowner or his staff cannot apprehend a poacher; they are not allowed to arrest him. Clearly this is something you can do in England. The law is very much stronger in England; and this is something which wants to be taken into account. On the other hand, there was a prosecution in the Kirkcudbright sheriff court (which is, after all, a little nearer the home of the noble Lord, Lord Ross of Marnock) only a fortnight ago in which a poacher, who they all knew had been at it for some time, got three months in gaol for shooting seven red deer, I think it was, with a shotgun.
Lord Ross of Marnock: One case does not make an epidemic.
Lord Burton: No, but that was just one a fortnight ago.
Lord Northfield: I am grateful to noble Lords who have taken part in this short debate. I am slightly surprised that my noble friend on the Front Bench has not yet heard about this escalating (if he does not like the word "epidemic") amount of poaching going on. The sort of figures which have been quoted in the newspapers were used at Second Reading by several noble Lords, and, indeed, I used some myself. The sort of figure which is given as a reliable estimate is that about as much poached venison leaves Scotland as is exported legally—about 1,300 tons of each. It has got to that proportion, equalling the legitimate trade, with a worth of about £2 million at present-day prices. When one considers that gangs make £10,000 easily,

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with individual carcases worth over £100, it is not surprising that, in the absence of real deterrent provisions, it is becoming an epidemic.
On the substantive points about the clause, I am grateful to the noble Lord, Lord Dulverton, for drawing my attention to the point about projecting any missile. I will think about that. On the point raised by Lord Glenarthur about exempting deer farms, the point is that poachers are hardly likely to be there. It on enclosed land and probably they can keep poachers out. Therefore, it was thought that, in the interest of management of deer, that might sway the argument in favour of allowing the use of vehicles.
I will not deal with more detailed points of the proposed new clause. There has been a general welcome for the principle. I am grateful to the noble Viscount, Lord Thurso, for asking whether the sponsor, the noble Lord, Lord Glenarthur, will discuss with me more suitable drafting, and grateful to him for saying that he would. With all that and the assurance that he has given, I am delighted at the outcome of the debate and beg leave to withdraw the new clause.
Amendment, by leave, withdrawn.
8.12 p.m.
Lord Burton Lord Burton moved Amendment No. 23:
Before Clause 6, insert the following new clause:
("Exemption of deer farms from close seasons
. The following subsection shall be inserted after section 21(3) of the said Act of 1959—
"(3A) This section shall not apply to deer on a deer farm.
In this subsection, a deer farm means land enclosed by a deer-proof barrier upon which deer are being reared for the production of venison by recognised methods of animal husbandry and for the production of live animals and upon which all deer are externally marked by ear-tags or collars.".")
The noble Lord said: I hope that this is just a probing amendment. The position regarding the deer farms is not very satisfactory; and the noble Lord, Lord Ross of Marnock, mentioned the possession of deer. Someone who has deer in a park and is breeding them, would like to hope that he is the owner. But that is another point. It requires United Kingdom legislation. There are a lot of complications in this. There is the question of deer parks, zoos and so on which are interrelated. Before going further, I wonder if my noble friend on the Front Bench will be able to say that we will have United Kingdom legislation for deer farms. If that is so, then I need not waste the time of the Committee further. I beg to move.
The Earl of Mansfield: As my noble friend has said, in effect, this is a matter on which the Government wanted to get as wide a reaction as possible. That is why it was one of the matters in the consultative paper which my department published last year. The idea got a mixed reception as far as deer farming is concerned. There was a good deal of concern, particularly among some sections of the public, who felt that if deer are to be farmed at all they should be subject to special protection. This is something which we would wish and on which we have started to consult the Farm Animal Welfare Council before taking any legislative action.
I can tell my noble friend that the council has started to pay attention to certain aspects of deer farming but has not yet reached any conclusions. Bearing in
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mind, as my noble friend has said, that this is something which, like all other farming welfare matters, should be done at least on a Great Britain basis and not merely on a Scottish basis, it therefore seems preferable to wait until we come to a considered view as to what should be done and then do it in the form of a United Kingdom Bill. It should not be done in the context of a Private Members Bill and on an occasion like this.
Lord Burton: I am sorry that my noble friend has not been able to give more of an undertaking that legislation is pending rather than saying that the Farm Animal Welfare Council are getting round to it. Could he not expedite this? I think that it is urgent now. There are lots of complications arising. Deer farmers are anxious to get something in and they have approached me about this. If my noble friend is not able to give an assurance of something forthcoming in the near future, I shall try to put something into this Bill later.
The Earl of Mansfield: Your Lordships may have noticed that all those that have the welfare of animals at heart tend not to keep their remarks concise, to the point and able to be digested by an audience and embodied either in a Green Paper, a White Paper or legislation, easily or at all. In those circumstances, what is a complicated and difficult matter is being considered by the body which advises the Government on these things. We want to get it right. I cannot give an undertaking in respect of possible legislation which is not going to see the light of day until we have received the advice and the Government have had the chance of making up their mind. If the noble Lord thinks I am not going far enough, that is a matter for him. I am being realistic and honest. It is of no use the Government legislating until they have the expert opinion—and they have not got it yet.
Lord Houghton of Sowerby: Now the noble Earl is using this Bill as a vehicle to attack those who have the welfare of animals at heart. He must be careful not to misuse the vehicle he is given to express his prejudices about those of us who have animal welfare at heart. I understand the Minister's view upon the need for more comprehensive treatment of deer farming than is suitable or possible in this Bill. I am not going to make a long speech. I am merely suggesting that it is desirable not to let practices of deer farming become widespread and established before dealing with them; otherwise we shall have a repetition of what has happened on a previous occasion; merely, that vested interests become firmly established, capital is invested and all sorts of difficulties are then raised against humanitarian methods of dealing with animals.
At the present time, a deer farm is not covered by the slaughterhouses Act. As far as I am aware, no one who kills a deer needs to have a licence to do it in a deer farm so long as he is using slaughterhouse equipment and so on. There are problems here which will need attention. One cannot be more precise in dealing with some of the problems here than to suggest that whatever they are they need examination without undue delay. We were led to expect great things from the Farm Animals Welfare Council. I am sure that it is doing a lot of work and producing results although they are not all that conspicuous at the present time. This has

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been referred to them and we must look to that, and for the moment be content with that.
I feel that the warning is justified. The mistake we have made in the past is taking too little notice of what was happening until it was so firmly established that we were told that commercial interests, employment and profitability of enterprises and all the other desirable things in our economic situation are in peril if we introduce measures which might conflict with practices that already have grown up.
I will forgive the noble Earl for his attack on me and on others with animal welfare at heart and warn him not to misuse the vehicles—not moving ones; this is a stationary one—when they come to hand.
The Earl of Mansfield: Perish the thought that I should make an attack on the noble Lord, Lord Houghton. If I sent a bonnet sailing into the air and it happened to land on Lord Houghton's head and it fits, that is not my fault. Behind the noble Lord's droll sense of humour, I agree with a great deal of what he has said so far as the matter is concerned. I can assure him that there is no delay and I take his point that one does not want deer farmers to invest too much money and gain too much expertise, which may lead to practices which will have to be altered in the light of a forthcoming Bill. We do not want to go too far down that road before we have the legislation.
Lord Burton: I welcome the last remarks from my noble friend Lord Mansfield, in particular his remarks about the noble Lord, Lord Houghton of Sowerby. I was going to say that I am sorry if he had a guilty conscience. This must be one occasion when the Farm Animal Welfare Council would be welcomed by the farmers. I hope that, having drawn this to his attention, there will be effort to get them to co-operate with the farmers and try and get some suitable legislation at an early date. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
8.21 p.m.
Lord Northfield Lord Northfield moved Amendment No. 24:
Page 3, line 33, at beginning insert—
("( ) Subject to the provisions of this section and section 33(1) of this Act, if any person uses for the purpose of taking or killing any deer any firearm or ammunition mentioned in Schedule 2A to this Act, he shall be guilty of an offence.
( ) A person shall not be guilty of an offence under this section by reason of the use, for the purpose of taking or killing any roc deer, of any rifle having a calibre of not less than 0.218 inches (5.54 millimetres) which is loaded with—

(a) a cartridge or load so designed that, when it is fired in a rifle, the bullet discharged has a muzzle energy of not less than 1,094 foot pounds (1,483 joules); and

(b) a cartridge purporting to contain a bullet which weighs not less than 50 grains (3.24 grammes) and is an expanding bullet designed to deform in a predictable manner and thereby increase its effective diameter upon entering tissue.

( ) A person shall not be guilty of an offence under this section by reason of the use, for the purpose of taking or killing any deer on any arable land, garden grounds or land laid down in permanent pasture (other than moorland and unenclosed land) forming part of that land or on enclosed woodland, as the case may be, of any smooth-bore gun of not less gauge than 12 bore which is loaded with—

(a) a cartridge containing a single non-spherical projectile weighing not less than 350 grains (22.68 grammes); or

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(b) a cartridge purporting to contain shot each of which is 0.203 inches (5.16 millimeters) in diameter (that is to say, size AAA),

if—

(i) he has reasonable grounds for believing that deer of the same species are causing, or have caused, damage to crops, pasture, vegetables, fruit, trees or human or animal foodstuffs on that land; and

(ii) it is likely that further damage will be so caused and any such damage is likely to be serious; and

(iii) his action is necessary for the purpose of preventing any such damage.").

The noble Lord said: This is a weighty amendment, taking up quite a space on the Marshalled List. It deals with prohibited weapons. This was the subject of some exchanges between myself and the noble Earl during Second Reading. In effect, the Bill as at present drafted leaves it all to the Secretary of State to provide as he may think fit by order for the definition of any weapons that should not be used in the killing of deer, whereas I said at Second Reading, and repeat now, that it is appropriate to put in the minimum requirements in this matter into the Bill in relation to prohibited firearms and ammunition, and to profit from the exchanges, debate and final agreement that we reached on this matter in debates on the recent Deer Act which applies to England and Wales.
At the end of those debates there was a consensus about the weapons which hould be allowed and those that should be outlawed. Those are broadly copied in this present amendment. Experience may show that provisions should be modified in some way or other. For example, because there might be a new design of weapons or cartridges. The Minister would then still have the powers to vary what is proposed.
I should state that, with the leave of the Committee, we are discussing not only Amendment No. 24 but also Amendment No. 27, which goes with it, and, more important than that, Schedule 2A which is on page 16 of the Marshalled List. It would be by order that the Minister would be able to modify the minimum provisions which are laid down particularly in Amendment No. 24 and the new schedule which goes with it.
One of the objections to Clause 6 of the Bill as at present drafted is that if the Minister simply retains the power to make orders, the House is always in the difficult position that it cannot amend any such orders. It can only reject or accept such an order. If the Minister comes forward with what we think are inadequate or technically deficient matters in the proposed orders that he brings, we are in a difficulty. We shall be told: "You are stopping some small steps in the right direction by objecting to such an order". There will always be an argument for saying, "Take your quarter loaf or half loaf and do not keep asking for the whole one". The difficulty is that we do not know what it might be that the Minister will be offering as a minimum. That is why I return to the point that it is not satisfactory to let him do all that is proposed by order, and we ought to state the minimum provisions first and let the Secretary of State have power to vary afterwards.
Secondly, in this amendment and the proposed new schedule it will be seen that I have been persuaded that there is a case for allowing certain smaller calibres of rifles for killing roe deer in Scotland. The ballistics that are in my amendment are the result of advice from

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a number of people who can be regarded as experts. The minimum calibre of rifle that I propose, 0·128 inches, allows the ·222 cartridge to be used. This I think has the right foot pounds energy at 100 yards. That is one way of meeting Scottish conditions.
The third part of the amendment is based on provisions now in force south of the Border and reached after long consultation with the National Farmers' Union which are most co-operative. It refers to the restrictions or the exceptions to be made for the use of the shotgun which is of course first outlawed in the schedule but allowed to be used in the exceptions which are in the latter part of Amendment No. 24. These were the exceptions on which consensus was reached in the debates on the English and Welsh legislation.
It will be said that the shotgun cannot be outlawed in a preliminary way as I propose because chief constables will not give people firearms certificates. I hope that we can put this argument to rest once and for all. When the Deer Act was going through the House I read out—and it is all on the record—letters from chief constables making it quite clear that they had no reason to believe that this was so. They are quite happy to issue firearms certificates in appropriate cases where there are deer to be kept under control in a proper way. Indeed, some of the letters I read out made it clear that they would prefer this so that they have a better control of what is going on in the countryside. I hope that that silly argument is not going to be raised all over again, meaning that we have to write yet again to chief constables to get them to put this on the record. I hope that we shall not enter into a long argument about ballistics. If I have the ballistics slightly wrong, that is something we can put right at the Report stage of the Bill.
Last of all it will be said that the crofters need all these powers. If we are going to legislate for the crofters, let us remember that when we dealt with the English legislation we were dealing with an equally large number, an equally strong lobby, of very small farmers in England and Wales. I do not see that any special exception on the shotgun issue has to be made because of the size of crofting in Scotland when it is not dissimilar from the size or the numbers of small farms that exist south of the Border.
I repeat that the main principle is to get minimum provisions which the House has discussed and agreed on as a consensus on previous occasions, as a starting point for the gradual outlawing of the less reputable ways of killing deer. I know many members of the Committee are horrified that we are so far behind other countries in this matter of gradually outlawing the worst weapons in our own countryside. I beg to move.
Viscount Thurso: I greatly prefer the wording of the Bill to that of this amendment. I much prefer that this matter should be one for the professional advice of the Red Deer Commission and for adjustment from time to time with professional advice which is what is provided for in the Bill.
There is one obvious difference between the approach of the Red Deer Commission to this matter and that of the noble Lord, Lord Northfield. That makes me more confident in leaving the matter in the hands of the Secretary of State rather than trying to legislate
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precisely on technical matters and hoping that these matters will be adjusted from time to time. I know that the Red Deer Commission prefer to talk in terms of striking energy rather than muzzle energy. There is a considerable difference between the two. One has to maintain a fair amount of flexibility because new weapons are constantly coming in and new weapons are constantly being produced. New bullet shapes may produce different striking energies in bullets.
The way that the Bill has been drafted in this particular aspect is excellent, although I have a probing amendment following this one on this very subject. I do not know whether your Lordships feel I should speak to it at this stage, but my probing amendment which follows is merely to make sure that the Red Deer Commission are the principal advisers of the Secretary of State in matters of weaponry. But certainly I would much prefer that your Lordships stayed with the provisions of the Bill rather than with this amendment.
Lord Ross of Marnock: I think I would take up exactly the same point as the noble Viscount, Lord Thurso. When it comes to the matter of outlawing arms, I can assure the noble Lord, Lord Northfield, that we in Scotland, and particularly in the Highlands, are very familiar with the outlawing of arms even for our own protection by the English, following, I think, the 1745 Rebellion; so we are not always all that willing to listen to the advice we are given on the outlawing of arms by an Englishman, although probably with the best will in the world on this occasion the noble Lord thought this was right to put into the Bill. I know the arguments very well, but I think that the Secretary of State for Scotland will probably know fairly well the circumstances in relation to Scotland, and certainly to that part of Scotland where we are concerned about the use of firearms in respect of deer, and will be in close touch with all the organisations concerned.
When the noble Lord, Lord Northfield, spoke about and dismissed aspects of the crofters, I do not know how familiar he is with them or with the whole history of crofting or, indeed, with that celebated occasion when the crofters on Lewis actually took over the whole of the deer forests, lit fires all over the place and roasted deer in order to draw the attention of the country to their particular problems. Of course, there were arrests, and so on; but as far as he is concerned I am perfectly sure that the small farmers in England have nothing at all to do with the whole tradition and attitude regarding deer in Scotland. It was the crofters who were driven out to what were delightfully called the "heavily populated areas" and they were governed by the "congested districts" legislation thereafter. Venison was their food until they were driven out and the sheep were put in. Then, of course, the profitability and the market for sheep fell and back came the deer. Then they were all branded as poachers.
That is why I am concerned about this amendment. That is also why I want a lot of proof about commercial poaching, and no infringement of the rights of the small farmers and crofters. Therefore, I think he was going far too far, in dismissing the National

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Farmers Union of Scotland, from whom no doubt he received a letter. He has to bear in mind:
"In addition, we realise the shortcomings of the use of shotguns against deer but they are the only firearms available to many members and so the right to their use must be retained."—
and, of course, retained under very strict control. So, much as I agree with many of the things that the noble Lord said, I do not think that he is entirely au fait with the circumstances and the whole traditions of the Highlands of Scotland.
Lord Northfield: Before my noble friend sits down, may I point out to him that the amendment in fact authorises the use of the shotgun by crofters in the circumstances, as he says, with strict controls; so I do not know what he was really criticising.
Lord Ross of Marnock: I was criticising the whole attitude of the dismissal and I hope we do not have the arguments all over again. We must only have the arguments in respect of an English Bill. When it comes to a Scottish Bill, please shut up and let us get on with it! I wish the noble Lord had been a member of the Scottish Grand Committee in 1959 when we discussed the original Bill, and there to withstand the spate of the honourable Member for the Western Isles, Mr. Malcom Macmillan, at that time. I can assure him he would be standing here for hours on the subject and letting people know just how the people in the Highlands felt about deer, and the taking of deer.
Lord Dulverton: Although during Second Reading I expressed regret that this Bill could not have contained provisions for the regulation of proper weapons with which to shoot deer, on further thought I have come to the conclusion that we are much better to leave it as it stands in the Bill, although I have the greatest sympathy with the noble Lord, Lord Northfield, in his expressions. But I hope he will accept the advice which has already come from various parts of the Committee that perhpas he might leave it to the Secretary of State whom the Bill charges to undertake consultation with certain interested parties.
I do not want to detain the Committee because it is getting late, but we had some very serious talks in the Red Deer Commission about rifles. We even got to talking about rifles and roe deer, and whereas the treble-two delivers a foot pound energy of 700 or 750 at 100 yards, there are people who loose off at roe deer at 200 yards and then that figure is a gerat deal lower. I mention that in reinforcement of my feeling about this amendment, and I very much hope that the noble Lord will feel able to withdraw it and leave it to the Secretary of State to give the matter further and full consideration, and that right soon.
Lord Houghton of Sowerby: This is a stage in the Bill in which the English are made to feel somewhat inferior. I recall that Mr. Macmillan once said:
"The English should remember that they are a subject people".
I think there is probably some truth in that, but the Scots did have the opportunity of taking their deer and a great deal else into their own bosoms and their own legislature, which now stands empty and ill used in
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Edinburgh. We in your Lordships' Chamber should not have been troubled, of course, with these matters at all if the Scots had accepted the opportunity. But there were not enough Scots who wanted it that way and so we are left with Scottish Bills in the Westminster Parliament, which often means that we either keep out of debates altogether or, if we go into them, we have to listen with good grace to the sort of criticism that we do not understand, that we have not been there or that the conditions faced by the small farmer in England cannot be compared with those existing in Scotland. I think we have to accept this with good grace and good humour, as I do. Nevertheless I want to inquire whether it was the regulations in connection with Clause 6 of the Bill on which Lord Glenarthur ventured the opinion that the Secretary of State was almost ready with those regulations. I have not looked it up in the Official Report, but I believe that I said that if they were nearly ready would it not be a good thing if we knew what they were, so that they could be incorporated into the Bill?
I accept what the noble Viscount, Lord Thurso, has said about changes in weapons and in the mechanics of killing. Bills are very often difficult to amend in parliamentary time, and regulations are easier to introduce. Nevertheless, the cruelty aspect of the whole deer business depends a great deal on the weapons which are to be used to kill them, and from time to time we are rather horrified to read of the kind of carnage which goes on in all parts of Scotland. I think that so long as we are the United Kingdom cruelty is indivisable and we have to be concerned with it wherever it may occur.
I am in two minds about this. I should like to see the amendment in the Bill, and I am wondering what possible advantage there can be in leaving it to the Secretary of State, if consultations have taken place and are now sufficiently advanced for us to hear what the regulations might be. If they will be very much like the amendment, there is probably no reason why this should be held back. However, if in this flexibility there will be a good deal of licence in certain circumstances to use a shotgun, then we ought to know more about the circumstances in which that would be permitted. This is a difficult one, and the Government ought to help us on this rather more, if they are ready, or nearly ready, with regulations. If much consultation still has to take place, that is rather a different matter.
The Earl of Mansfield: I know that the noble Lord, Lord Northfield, put a great deal of thought and careful work into these amendments and, I have no doubt, a lot of research as well. If the Bill becomes an Act in the form that I should like to see, I am fairly sure that, when the Secretary of State comes to make his first batch of regulations, a lot of the noble Lord's careful work will be reflected in them. But I am bound to say that I do not think the noble Lord has fully appreciated the differences between Scotland and England and the fact that we have different ways of doing things and, dare I say it, even a different NFU which takes a decidely different view of small farmers from the English one.
There are considerable differences of view over this matter of weapons. Some people would like an outright ban on shotguns. Some people have doubts

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about self-loading rifles. Automatics are, of course, already banned in Scotland. Some experts would like to see ammunition defined in terms of striking energy, rather than muzzle energy. All these questions would have to be gone into by the Secretary of State before any regulations came to be tabled. I have no doubt that the Red Deer Commission and such bodies as chief constables and, possibly, local authorities, as well as the welfare associations, would play a considerable part in such discussions. But I am quite sure that the way that is proposed in the Bill—and, if it helps the noble Lord, I may have good news for him when we come to Amendment No. 30—is the right way to do it.
The only other thing that I would say to the noble Lord is this. If his amendment were accepted, it would make the use of a shotgun—and I bear in mind the safeguard of the single-ball cartridge—conditional on the farmer establishing that damage has been caused and that further damage is expected. I know that this exists as part of the Wildlife and Countryside Act, but in Scotland it would establish a new principle and would be deeply resented by the farming community. If we are to debate such a provision, we should do it when we come to Clause 8 and not on a matter such as this.
I have listened to the debate, and particularly to what the noble Lord, Lord Northfield, said, but for all those reasons I am convinced that we are going about this in the right way—the Scottish way. The noble Lord, Lord Ross, and I are poles apart politically, but I acknowledge without reservation that he has a definite feel for things Scottish. It is not really my Bill, but I am still going to ask the noble Lord to withdraw the amendment.
Lord Northfield: I am very grateful for the courtesy of the noble Earl. It is in contrast to the remarks of my noble friend on the Front Bench. I must say to him that, during all the proceedings on the English Deer Bill, we never complained that it was mainly Scottish Peers who were doing all the debating, and I am surprised that, in the reverse sense, he now raises that old one on my amendment.
But the most important thing which the noble Earl said was that the kind of attempt we have made to define weapons in this amendment will be considered by the Government when they come to make orders under the Bill as drafted. That is a very heartening and helpful statement for him to have made. In those circumstances, I shall not detain the Committee. The noble Earl has been extremely helpful and I should like to think over what he has said. At this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Thurso Viscount Thurso had given notice of his intention to move Amendment No. 25:
Page 3, line 33, at beginning insert ("If so advised by the Red Deer Commission,").
The noble Viscount said: I said that this was a probing amendment and, on reflection, I feel that the Secretary of State will obviously take the advice of his adviser and I do not move the amendment.
[Amendment No. 25 not moved.]
8.46 p.m.
Lord Burton Lord Burton moved Amendment No. 26:
Page 3, line 33, at beginning insert ("Subject to subsection (4) of this section,").
The noble Lord said: Having heard what my noble friend on the Front Bench has just said, I am even more apprehensive about this question of weapons. The intention of this amendment is to make any order on weapons an affirmative order rather than, as is the case in the rest of the Bill, a negative order which would have to be prayed against. The affirmative order would have to be brought to Parliament for approval. I would hate to think that this important matter of weapons should be left for someone to see, wherever it is published, and to pray against it here if that were necessary.
I have no doubt that my noble friend and my right honourable friend the Secretary of State are well acquainted with weaponry, but one must bear in mind that from time to time a future Secretary of State and Minister of State may have little knowledge of weapons, and may well become subjected to pressures which are not in the best interests of the objects of this Bill. Although my noble friend on the Front Bench knows a good deal about weapons, I am a little apprehensive about some of the pressures to which he has already been subjected.
Clearly one does not want lengthy discussions in Parliament on the various calibres, foot poundages and so on. That is why the working party decided that there should not be a schedule to the Bill, like the English Act, but that the matter should be decided upon after consultation with the Secretary of State. However, it is important that this is looked at by Parliament and does not just slip through on the nod. The affirmative order has been used in a number of places in the Wildlife and Countryside Act. Therefore, it is an appropriate type of order to use in this case. I beg to move.
The Earl of Mansfield: My noble friend will know that any orders or regulations made under the 1959 Act are subject to negative resolution. The same would normally apply to the provisions of this Bill. This amendment would, therefore, make an exception in the case of firearms which would be subject to affirmative resolution. It is right to say that one must pay attention to the fact that there will be considerable consultations in Scotland before an order is made. It follows from that—Scotland being a small country, and the number of people who take an interest in matters of this kind being limited—that everybody will know and appreciate what is in the wind, long before it actually comes to the Table of your Lordships' House and to the other place. So that there is no question of anything slipping through on the nod, without people, who might well object to the provisions of such an order, having the chance to get in touch with somebody in either House and have the matter discussed.
My difficulty about this is that the other place is already quite incapable of dealing with its ordinary business, because of time constrictions. I feel very hesitant about proposing to my noble friend that he should accept this amendment, if by accepting it he is in any way likely to prejudice the future progress of the Bill. Perhaps I could get the feeling of the House on this amendment. If there is very strong feeling about it, we will take it away and have another look at it.
Lord Inglewood: May I support my noble friend's amendment. I know all the arguments as between a negative and a positive resolution, and in my day have had to argue them. I think that the speech which we have just heard is very much common form. On the other hand, the substance of this section is not common form; it is the wider use of firearms and their control at a time when most of us would like there to be less use of firearms. Therefore, I feel that with regard not only to the general principle but to the timing, too, it is important that this House should have closer control over what is proposed in this section.
The Earl of Mansfield: If I give to my noble friend an undertaking that I will think about it, perhaps he will consider withdrawing the amendment for the time being.
Lord Burton: With your Lordships' leave, on that undertaking I have great pleasure in withdrawing the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 27 not moved.]
Lord Burton Lord Burton moved Amendment No. 28:
Page 3, line 35, leave out ("and ammunition") and insert (", sights of such weapons, ammunition and other equipment").
The noble Lord said: In moving this amendment, perhaps I might also speak to Amendment No. 29. There is concern that weapons and ammunition may not cover the sights of weapons. Many innovations have been introduced as a result of modern technology. There is an image intensifier which allows one to see at night as well as one can see during the day. There are also heat finding sights. These may be appropriate in Northern Ireland, but if they were to be used in our woods one might find a couple at the end of one's sights rather than a deer. This sort of thing should not be allowed. I am a little worried about the fact that we shall be restricting the Secretary of State if we refer to the weapons themselves and to the ammunition therefor. I am not altogether happy with my wording, which refers to "and other equipment". These new pieces of equipment are coming into being and they ought to be covered. If, therefore, better wording could be devised, I should be very happy if it were incorporated.
Lord Glenarthur: We ought to be wary of the argument that if it is to be used by poachers it should be banned, which I think is the broad thrust of the noble Lord's argument. To take the argument to its logical conclusion, we should not then kill any deer. There is another point of view: that if one is going to shoot in the dark (this comes into the Bill later, though my noble friend is talking about it now) it is best that at least the most efficient method possible should be used. This could include light-intensifying, image-intensifying sights. If my noble friend would agree to withdraw his amendment at this point, we should be prepared to take it away, obtain advice on it and come back to it later.
Lord Burton: I am trying to increase the area in which the Secretary of State would have powers to make orders. This is the important side of the argument. I am not saying that these sights should or should not be used. However, new devices are coming along all the time. Therefore, it is important that we should look
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at the matter widely. If the amendment is going to be looked at again, I beg leave to withdraw it.
Amendment, by leave, withdrawn.
[Amendment No. 29 not moved.]
Lord Northfield Lord Northfield moved Amendment No. 30:
Page 3, line 42, after ("to be") insert ("interested in or").
The noble Lord said: I understand that this amendment is acceptable. It would widen the groups of people who would be consulted before orders concerning weapons were made. It would allow those interested in and not simply those affected by the proposed orders to be consulted. This would be a very helpful improvement which is in line with other, similar legislation. I beg to move.
The Earl of Mansfield: I agree with what the noble Lord has said and I would ask my noble friend to accept the amendment.
Lord Glenarthur: I accept it.
Lord Northfield: I am much obliged.
On Question, amendment agreed to.
Lord Burton Lord Burton moved Amendment No. 31:
Page 3, line 42, at end insert—
("(2A) Notwithstanding the foregoing provisions of this section, it shall not be lawful to use any smooth-bore gun for the purpose of killing any deer.").
The noble Lord said: This is a very important amendment, because so much cruelty can be involved. The reply which I receive on this amendment will probably be that it ought to be left to the Secretary of State, as in the case of the other weapons. But this is rather a different matter from straight ballistics. We have already banned weapons like the crossbow. The smoooth-bore gun is a totally different weapon and must be considered completely separately. I do not think we can leave this matter to the Secretary of State. My noble friend on the Front Bench has already implied that he has come under pressure from certain interests and that the shotgun might very well not be banned.
During our Second Reading debate I told your Lordships that I personally have twice had to shoot stags which had been blinded by shotguns. It is a disgusting performance. The shotgun, of whatever calibre, is not a suitable weapon to use on red deer. Many people say that it is not a suitable weapon to use on any deer, even with big shot. But certainly on red deer it is not a suitable weapon to use. If one is going to use a shotgun, one must get very close to the animal. Unless you have organised drives, which is not what the NFU is talking about, you will not get close enough, apart from at night. We should not allow all and sundry to blaze away with shotguns at night when there is a very grave risk of wounding animals and causing a great deal of suffering.
The theory is that we must leave this in, because various people cannot get firearms certificates. I do not need to deal with that point. The noble Lord, Lord Northfield, raised this matter earlier. People can get firearms certificates. Indeed, in the north of Scotland there are too many firearms certificates. Anybody who has a reasonable excuse can get one, because the chief constable is frightened that there

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may be an appeal to the sheriff who would overthrow his authority, which might open the floodgates to even more firearms certificates. This is not a valid excuse for causing extreme cruelty. If one is going to use a shotgun throughout the day, the probability is that one will be unable to get close enough to the animal. If it is in the middle of a field eating turnips, you will certainly not get close to it.
Apart from this, there have been a fair number of animals—I cannot give statistics—going to the venison dealers with shotgun pellets in them. These animals have been wounded, and I do not think that we should tolerate it. It is wrong of the NFU to say that we should have this, because it is not extensively used. I have telephoned most of the game dealers and have asked them what animals they have had on their premises which have been shot with a shotgun. Two of the dealers said that they would not take them, because they thought it was extremely cruel if they had been shot with a shotgun. Another dealer said that he had seen an animal which had been shot with a shotgun. When he was asked about this he said that he had not seen it within the last three years: it must have been about four years ago. That was the nearest I got to getting any red deer shot with a shotgun. Therefore, for anybody to say that this is extensively needed is absolute nonsense. We cannot tolerate such cruelty, merely for a supposition.
I have asked the NFU to give me instances of when it is essential and necessary for any of their members to use a shotgun. They have been unable to provide one single instance. But cruelty is taking place. I mentioned just now the case of a poacher who shot several with a gun. This was at night. At last he was apprehended and he will not be doing it again for another three months. This is an entirely different matter from the calibre of weapons and I feel so strongly about this, as I am sure a number of other noble Lords do too, that whatever the NFU says—and if they are going to make these allegations they must produce evidence—we should turn it down. It is great cruelty and should not be allowed.
Viscount Massereene and Ferrard: I should like to support my noble friend very strongly. My noble friend only has to come to the Isle of Mull to see my deer larder and the amount of stags which do have shot in them. I have seen half their jaws shot away. That happens when the poacher uses solid slugs. To kill a mature stag with a shotgun one has to be incredibly near—no further away than 15 yards, and one would have to do it by light at night. But it is an extremely cruel practice. The RSPCA may complain about it, but why do the anti-blood sport people not do anything about it? They are just not interested in that kind of thing. It is incredibly cruel; it should not be allowed and should be legislated against.
Lord Northfield: I applaud the motives of the noble Lord, Lord Burton, and the sincerity with which he moved this. We have had this argument many times in this Chamber in recent years, concerning deer legislation, and I have never heard a voice raised in defence of the use of the shotgun on large species of deer. The amendment goes much further than my own amendment, upon which my noble friend on the Front Bench poured scorn. Indeed, my amendment would have
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allowed continued use of the shotgun by occupiers needing to protect their crops. This amendment would outlaw it completely. Once I have heard the kind of support which one gets in this House for a campaign against the shotgun. I must wonder whether my amendment went far enough in the first place.
I do not believe it is likely that this amendment will be accepted. I would be very glad indeed to have an assurance from the noble Lord the Minister that this would be one of the first things to be considered under the powers given to the Minister; to begin by defining classes of weapons which are not to be used. That would be a very helpful step forward. Otherwise we will have the long business, as we did in England and Wales, of convincing farmers—small farmers in particular—of the cruelty involved. We are pretty well the last country to outlaw this desperate weapon and it would be very helpful if we could have an assurance that some campaign will be mounted gradually to convince farmers that they do not need this and that it should be outlawed as soon as possible.
Lord Glenkinglas: I would like to say a word or two in support of this amendment. I know perfectly well that the NFU is very keen that we should not remove shotguns. The reason is quite simple. If one goes round the crofting counties and the areas where crofters are, almost everyone has a shotgun but coparatively few people have a rifle. They know perfectly well that they are not going to kill the deer in 99 cases out of 100, but it gives them some satisfaction if there is a deer in the field to go out and fire a gun at it. This is purely a "Get off my ground" attitude which they can take and get away with. It is entirely cruel, it is entirely ineffective, and it should be stopped.
9.3 p.m.
Lord Inglewood: I wonder whether my noble friend who has introduced this Bill has sufficiently pondered the difficulties of policing the provisions under this and certain other clauses? Scotland is a large place, but the population is very thin on the ground. The members of the police force are stationed at very wide intervals and therefore there is ample scope for people of ill-intention to poach. They are able to use almost any weapon they like with only the smallest likelihood of being caught and checked. Unless and until there can be quite a different enforcement pattern in Scotland (the only pattern I can see is that the Special Constabulary should be greatly increased in these areas), I believe there is going to be a great deal of additional poaching under this Bill and very little check on it.
Lord Glenkinglas: If I may say so, my noble friend who has just sat down got the problem slightly wrong. It is not the poachers who are asking us to keep the shotgun; it is the NFU. They are asking for this for quite the wrong reason.
Lord Inglewood: I was being tactful.
The Earl of Mansfield: There is great strength of feeling in the House on this matter. It seems only but a minute since I was sitting where the noble Lord, Lord Ross of Marnock, is seated now and was gazing across at the noble Lord, Lord Northfield, as he was propounding this over the English legislation, which I as a Scot was perfectly happy to debate.

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The fact of the matter is that this amendment goes a great deal further than the amendment moved by the noble Lord, Lord Northfield as he has very properly said. I have to repeat that what this amendment would do would be not just to curtail the present right of occupiers but would absolutely, in a black and white fashion, forbid the use of the shotgun. I have no doubt that many noble Lords would say, "And a very good thing too". Unfortunately, we have to be realistic on this matter. I have absolutely no doubt that if this amendment was put into the Bill by one means or another, it would be killed stone dead—in which case we would all go back to the 1959 Act, and all the things which so many of us want to do by way of reform would have to wait for another legislative opportunity—and I do not know when that would come.
I take the point made by the noble Lord, Lord Northfield, very much to heart. We do have to go at this in a way which will commend itself to many divergent views. We cannot just dismiss the many thousands of crofters who have over the years adopted the shotgun and have used it, as my noble friend Lord Glenkinglas has illustrated, in the same way that my noble friend Lord Burton uses his winking lamps—which I hope he does not purloin from the nearest roadworks—as a warning. I hope that on reflection the House will accept what was the general consensus on the more far-reaching amendment moved by the noble Lord, Lord Northfield, that it is really up to the Secretary of State to take the view of everybody and every organisation which will be affected and then to lay the necessary order.
I think that the great virtue of taking power as opposed to writing it into a Bill is that the Secretary of State, can as public opinion develops, take several bites of the cherry. I think there is a lot to be said for that. I think one of the results of the banning of shotguns—I take my noble friend Lord Inglewood's point, although I am not sure it is the one he was making—would be the proliferation of rifles in scattered rural communities in Scotland. I am not sure that that would not lead to more poaching from farmers who could see a very much better way of using the rifle hanging on the wall to increase the cash flow.
All these are matters which the Secretary of State will have to go into. For myself, I would hope that very quickly we can get to a stage where we can introduce the sort of rules by virtue of orders which the noble Lord, Lord Northfield, and indeed all your Lordships, would like to see. But for the reasons I have given, not least because we do want this Bill to make progress, I cannot recommend the Committee to accept this amendment tonight.
Lord Glenkinglas: When my noble friend is thinking about these things with his right honourable friend the Secretary of State, would he bear in mind that he is putting this House in a pretty difficult situation. What, in effect, he is saying is that if we ban shotguns it infuriates the NFU and they will stop the Bill at Second Reading in the other place; whereas if we accept them, all those people who feel very strongly about cruelty may well stop it in the other place also. If that is the sort of situation we are in, I think it is high time the Government took over the Bill as their own.
Viscount Thurso: I think we must recognise here that we could not suddenly ban the shotgun and hope that things would be under control. It would have to be phased in, first of all choosing proper ammunition and that kind of thing, trying to work it so that there was better control of marauding by the Red Deer Commission and so on. Many things can create the climate in which ultimately, it would be possible to ban the shotgun, but it could not be done by consent simply by laying it down in this Bill.
Lord Houghton of Sowerby: I agree with the noble Viscount who has just spoken. There are a number of things that have to be taken into account, somewhere, sometime, before we can be sure that what we do will bring in legislation which will prevail. I think the problem here is that the farming community go on assuming that their word is going to be the last word, without taking into account the changes in public opinion in society today towards their treatment and many other people's treatment of animals. I resent the easy thought that if you mention the NFU you are mentioning an authority, an opinion that must be respected and held almost sacred; whereas if you talk about trade unions, which, after all, the NFU is, you get all the prejudices against union power. NFU power is just as objectional as Transport and General Workers' Union power, and they both must be assailed where they are being misused for the protection of particular interests, and not taking full account of public opinion and the public interest.
These small farmers we hear a lot about, especially in England, we know have shotguns, and they tell us that they cannot afford rifles. The idea, presumably, is that a shotgun is a general use weapon whereas a rifle is a particular use weapon. Shall they have expensive rifles to shoot deer humanely, or can they still use shotguns inhumanely? I was very glad indeed to hear some passion in the voice of the noble Lord, Lord Burton. There is far too little passion in your Lordships' House on matters of this kind. I know the noble Earl on the Front Bench thinks that animal welfare people are woolly-minded and not precise in their approach to particular methods of reform, but the emotional case here can sometimes be translated into practical action. This is what it is all about.
I would be more comforted by the smooth words we have listened to from the Minister if I knew what sort of status these regulations will have in our procedure. Will it be the negative procedure or the positive procedure? If these regulations are there to be prayed against, we know that there will be great difficulty in getting the time to do it. A prayer in another place cannot get time for debate unless the Government Whips of the day are prepared to give it. The opportunity for debate while the regulations are still in a draft stage is unlikely to come. I am not sure of the procedure in your Lordships' House. But at any rate, if we had the positive procedure subject to the approval of both Houses of Parliament—and that is an amendment down on the Order Paper later—I think that we could feel that we would be in control of the situation in the ultimate, even if it meant rejecting the draft orders that were presented to us if they were not satisfactory.
Without some assurance of that kind we shall be

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in the hands of the Secretary of State, and he will be in the hands of the Scottish Farmers' Union. We had all this in the Wildlife and Countryside Bill. We heard all about the farming interests. They are, of course, very important indeed, but they are not paramount in dealing with animal life. There are other principles upon which the community must insist.
If the farmers want more help to be less cruel—all right, give it to them. I would provide rifles under the National Health Service or any other scheme, or state aid in order that small farmers could not plead poverty when it came to using humane weapons. What has the Minister to say about draft regulations? Who will have the ultimate say about them? This is very important.
The Earl of Mansfield: I gave an undertaking to my noble friend, who has already proposed that these regulations should be by the affirmative resolution procedure, that I would think very carefully about it. I shall think even more carefully following the contribution of the noble Lord, Lord Houghton.
Lord Burton: Apart from the Minister, the noble Viscount, Lord Thurso, was one of the few who spoke against the amendment. He spoke about the matter being phased in. This occurs hardly at all. There is absolutely no need. There is no question of phasing it in. It is used on so few occasions anyway except, as has been said, it has been used for wounding deer. I do not think that we should allow this to continue.
As regards what my noble friend on the Front Bench, and, I think, as the noble Lord, Lord Houghton, have said, we cannot be dictated to here by a small section of the community. It is not the whole of the National Farmers' Union. Many people have the same views as we do. Many of them do not like the shotgun. But there is a quite small section that is frightened that they will lose votes the next time they have to vote for the presidency of the NFU. That is what it amounts to. They all say without exception, "Oh, we would not use the gun, but we have to allow for…". I say, "Allow for who?" They cannot tell me.
So we are between the devil and the deep blue sea here. We have the Minister saying that if we leave it to the order it will probably not go through because the NFU will not accept it. If we turn it down here we are being told that because we ban the gun we ban the Bill. This is a ridiculous state of affairs. If we put it through and it goes to the other place, I believe that the other place will have as many people there as we have here tonight who will dislike the use of the shotgun on red deer or any deer. The situation is such that I do not think that we can leave it. I do not see how I can withdraw what I think is a very important amendment.
The Chairman of Committees: The Question is, That Amendment No. 31 be agreed to? As many as are of that opinion will say "Content"; to the contrary "Not-Content". I think the "Not-Contents" have it. Clear the Bar.
Tellers for the Contents and the Not-Contents have not been appointed pursuant to Standing Order No. 50. A Division, therefore, cannot take place and, in accordance with Standing Order No. 50(3), which provides that no proposal to amend the Bill in the form in which
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it is before the Committee shall be agreed to unless there is a majority in favour of such amendment, I declare the amendment disagreed to.
I have to point out that if Amendment No. 32 is agreed to, I cannot call Amendments Nos. 33 or 34.
9.20 p.m.
Lord Northfield Lord Northfield moved Amendment No. 32:
Page 4, leave out lines 1 to 5 and insert—
("(3) Subject to subsection (4) below, a person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding £500 or to imprisonment for a term not exceeding three months, or to both.
(4) Where an offence under this section was committed in respect of more than one deer the maximum fine which may be imposed under the last foregoing subsection shall be determined as if the person convicted had been convicted of a separate offence in respect of each deer.
(5) In this section "roe-deer" means deer of the species capreolus capreolus.".").
The noble Lord said: Once again, I am very grateful for the courtesy of the noble Earl, Lord Mansfield, because on Second Reading he agreed that the issue which is the subject of my amendment was an unfortunate omission from the Bill; namely, that the offences shall be in respect of each deer in the case of this part of the clause. Therefore, I hope that my amendment, or the one that is substantially like it in the name of the noble Lord, Lord Glenarthur—Amendment No. 34—will be acceptable.
Lord Glenarthur: I think that I am at one with Lord Northfield's intention in his amendment. However, I believe that it can be achieved by a shorter amendment. Additionally, my amendment picks up the consequential point that just as an offence against Clause 23 attracts stiffer penalties under Clause 24, where two or more persons are involved in acting together, the same possibility should be open for offences against the new Section 23A. Therefore, I hope that he will withdraw his amendment and perhaps we could then accept mine.
Lord Northfield: I am most grateful. In view of what the noble Lord has said, I shall look at what his amendment will do to the Bill and consider whether it needs any further amendment at Report stage. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 33 not moved.]
Lord Glenarthur Lord Glenarthur moved Amendment No. 34:
Page 4, line 4, after ("£500") insert ("in relation to each deer killed or taken or attempted to be killed or taken").
The noble Lord said: I think that I probably covered this when I spoke to Amendment No. 32 in the name of the noble Lord, Lord Northfield, in that my amendment is shorter and probably more efficient. I beg to move.
On Question, amendment agreed to.
Lord Glenarthur Lord Glenarthur moved Amendment No. 35:
Page 4, line 5, at end insert—
("(2) In section 24 of the said Act of 1959, for "either of the two" there shall be substituted "any of the three ".").
The noble Lord said: This is the same amendment. It is really consequential on Amendment No. 34. I beg to move.
On Question, amendment agreed to.
Lord Burton Lord Burton had given notice of his intention to move Amendment No. 36:
Page 4, line 5, at end insert—
("(4) No order made under this section shall be made unless a draft of the order has been laid before and approved by a resolution of each House of Parliament.").
The noble Lord said: This is a consequential amendment. Not moved.
[Amendment No. 36 not moved.]
On Question, Clause 6, as amended, agreed to.
[Amendment No. 37 not moved.]
Lord Northfield Lord Northfield moved amendment No. 38:
After Clause 6, insert the following new clause:
("Amendment of s. 25 of 1959 Act.
. Section 25 of the said Act of 1959 shall be amended as follows—

(a) in subsection (2), for the word "twenty-two" there shall be substituted the word "twenty-one";

(b) in subsection (3), for the words "said sections twenty-two" there shall be substituted the words "said sections twenty-one";

(c) subsection (4) shall be omitted.").

The noble Lord said: This is a short amendment which I hope we can deal with briefly. This part of the Bill deals with Section 25 of the 1959 Act and subsections (2) and (3) thereof. It deals with people found in possession of deer or of firearms and ammunition in circumstances that can reasonably be suspected to be connected with poaching or killing at night. It provides that in case of either suspicious possession of firearms, or deer obtained by the use of such firearms, one can be charged with unlawful possession of those firearms.
I would suggest that this provision about firearms should apply not only to people suspected of poaching or killing at night, but also to those suspected of killing out of season, and that is the whole point of my amendment. If my amendment is accepted, it would apply to those killing out of season. Secondly, I would point out that paragraph (c) of my amendment is there not because I wish to delete the provision of conviction on one person's evidence, but because I want to make one person's evidence more widely applicable in the Bill by a later amendment, No. 66, and in that sense paragraph (c) is only a paving amendment for my later Amendment No. 66. The main point is the first one I have made, the extension of this provision to people caught shooting out of season I beg to move.
Lord Glenarthur: Perhaps I might deal with parts of this amendment separately. Paragraphs (a) and (b) assume that a breach of the close season is in itself a serious a enough offence to warrant a charge of unlawful possession of a firearm on suspicion. Those who framed the 1959 Act were clearly at pains to distinguish between the offence of shooting out of season and other offences. I am not convinced that we need a change now.
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For example, I cannot possibly believe that for somebody to shoot a hind, perhaps 36 hours before the normal season for shooting hinds comes into effect, either on purpose or indeed accidentally, merits nearly such a severe penalty as one of actually being on the ground unlawfully and poaching, in the way that Lord Northfield's amendment would lead us to believe. For that reason, I do not think that I can really accept what he says.
Paragraph (c) of the amendment paves the way for a later amendment which purports to extend the range of offenders for which one may be convicted on the evidence of one witness. I shall have more to say about that when we reach it, as no doubt will my noble friend Lord Mansfield. Suffice it to say here that there are grave objections to that principle, and I hope that the noble Lord might withdraw his amendment.
Lord Northfield: I am not really satisfied because the Act, as it stands at the moment, makes this an offence in respect of shooting at night. I should have thought that what the noble Lord said about accidentally shooting one a few hours before the end of the close season can be said also about people who shoot half an hour before daylight. In other words, he is making a wrong comparison. The comparison that is needed to be made is why is it an offence to do this half an hour before daylight and not a day before the end of the close season. The noble Lord is being quite illogical over this. I hope he will reflect on what I have said and will see that he is making a totally wrong comparison. I shall think about it, as I hope he will, and we can discuss it privately. On the basis that I shall return to the matter on Report, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Glenarthur: I suggest that we have reached a convenient point at which to stop, and accordingly I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.