Lords Sitting of 15 March 1982

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

Prisons: Educational and Training Services
Lord Boston of Faversham: 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, for the foreseeable future, it is intended to maintain the present number of staff for educational and training work in penal establishments, and whether expenditure upon these services will be maintained at present levels at least in real terms: and if not what changes are envisaged.
The Parliamentary Under-Secretary of State, Home Office (Lord Belstead): My Lords, my right honourable friend is very conscious of the importance of education and training in prison régimes and everything possible is being done to maintain the high standards of these services. In view of the current constraints on public expenditure, however, he cannot give the assurances the noble Lord seeks. Nevertheless, the considerable investment in prison education and training of recent years and the current levels of expenditure will ensure that these services continue to make a valuable contribution to prison régimes.
Lord Boston of Faversham: My Lords, would the Minister accept that that is a disappointing reply; and in view of the importance that the Government attach to these matters, especially at a time when the prison population is increasing, that there should in fact be increased expenditure on these services especially because of the importance of resettlement? Would the Minister also accept that part-time training and education is an important part of these services, and that it is regrettable that there has been a substantial decrease in the number of part-time staff? Can the noble Lord say whether the Government intend to remedy these losses?
Lord Belstead: My Lords, the noble Lord, Lord Boston, refers to the reply as disappointing, but he also of course puts his finger on the reasons why it is not possible to give an absolute assurance; that is, because spending priorities within the prison service and the pressure of numbers and the heavy demands upon building resources caused by years of neglect make it impossible to give the absolute assurance that the noble Lord asks for. However, in the second part of his supplementary the noble Lord mentions the desirability of increased expenditure. I think I ought to say that whereas in the financial year we are just finishing the estimated expenditure will be some £9·2
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million on prison education and training, a figure has been reserved for next year of £11·7 million, and within that figure we shall certainly look closely at the needs for part-time teachers.
Baroness Trumpington: My Lords, while welcoming the last part of the noble Minister's statement, may I ask him whether it would not be in order to praise highly the standard of teaching which goes on in prisons, and the results which are achieved regardless of numbers of staff, or indeed of prisoners who are benefiting from the staff's work?
Lord Belstead: My Lords, I am grateful to my noble friend. I think particularly in the spheres of remedial education, where a great deal more is asked of the prison education service than is asked of the education service in the country generally, and also in the area of examinations, where the success rate is remarkably high, that the prison education service is to be congratulated.
Lord Avebury: My Lords, would the Minister consider one aspect of education in prisons on which we have had some correspondence; namely, the acquisition of skills in typewriting, which a prisoner can easily undertake within the privacy of his cell and with the minimum of supervision? Would the noble Lord agree that in spite of the difficulties he has mentioned in this correspondence, such as the need to search typewriters to make sure that unauthorised objects are not concealed in them, this is a skill which is particularly appropriate to be taught in prisons, and that if it cannot be done within the cells then facilities ought to be provided in the libraries, where the prisoners can learn under close supervision from the librarians?
Lord Belstead: My Lords, this is an interesting question, but it does not really arise on the original Question.
Lord Boston of Faversham: My Lords, can the Minister help so far as the new régime on youth custody is concerned, and whether it is intended that the present six hours per week of evening tuition, which is at the moment enshrined in the borstal training rules, will be continued under the new régime when it is introduced?
Lord Belstead: My Lords, I cannot give the noble Lord an absolutely straight answer to that because we are in the process of deciding exactly how the statutory rules relating to education and training are to be re-written, but I assure the noble Lord that they are to be re-written to take account of the new young offender's legislation in the Criminal Justice Bill which is now before the House of Commons and of course has not yet come to your Lordships' House.
Baroness Macleod of Borve: My Lords, may I ask my noble friend whether, when the Government are able to spend this further amount of money on education, they will ensure that more subjects at a City and Guilds level will be able to be taken by those who are within Her Majesty's prisons? Would my noble friend agree that a great number of prisoners already come up to that standard, and indeed that some other prisoners take and pass Open University courses?
Lord Belstead: My Lords, within the budget figures that I gave at the beginning we shall certainly take account of what my noble friend Lady Macleod has said about the importance of vocational training. I confirm the truth of what my noble friend has said about the standards in vocational training that are achieved by prisoners.
Lord Elwyn-Jones: My Lords, would it be possible to publicise the results of this educational work, which are quite remarkable in individual cases, of A-levels, university degrees, from prisoners with no apparent indication of capacity or ability? I think it would be a good thing for this to be publicised: something good to come out of the prison service for a change.
Lord Belstead: I think we should look at that in the context of the annual report of the prison service, my Lords, and I shall draw the attention of the Prison Department to what the noble and learned Lord said.
Baroness David: My Lords, will there be the officers available, under the new attendance system which is being negotiated for prison officers, to unlock prisoners and escort them to classes in the evening, and will there be as many evening and adult classes as there were before?
Lord Belstead: My Lords, the attendance system has not yet been agreed with the Prison Officers' Association.

Export Orders
2.43 p.m.
Earl Alexander of Tunis: 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 value of export orders so far won by British companies in the current financial year; and how this compares with the previous period.
Lord Lyell: My Lords, as data on export orders are collected from only part of British industry, no overall figure of their value is currently available.
Earl Alexander of Tunis: My Lords, while thanking my noble friend for that Answer, and in view of the importance of foreign trade, may I ask him to say what the present balance of payments is?
Lord Lyell: My Lords, the latest figures available, for 1980, show that the trade surplus for the year for the United Kingdom was in the region of 7½ billion dollars, which we believe compares very favourably with the comparative surplus figure for the United States, of 3·7 billion dollars—while Japan and West Germany had deficits of approximately 11 and 16 billion dollars respectively—and we think that is a great success story.
Lord Leatherland: My Lords, may I ask the Minister to take the trouble to give those figures in pounds and pence? We are not yet an American colony.
Lord Lyell: My Lords, I will write to the noble Lord with the current figure as of today's date. I would point out that they are approximate figures of very large sums of money. Nevertheless, I will do my best to see if I can obtain a sterling equivalent for the noble Lord.
Lord Davies of Leek: My Lords, do the figures given by the Minister include our invisible exports, which are of paramount importance to us whatever Government are in power?
Lord Lyell: Yes, my Lords, so far as the United Kingdom figures are concerned.
Lord Soames: My Lords, did I understand my noble friend to say that he had figures for only certain sections of British industry for the current financial year? Presumably those are the same sections for which the Government had figures for the previous financial year. May I ask my noble friend to compare one with the other, as the Question asks?
Lord Lyell: My Lords, to elucidate on the first part of the main Question, data on particular export orders in value terms are available in the United Kingdom only on merchant shipping, but there are indicators of new export orders placed with engineering, and they are published monthly. Those two are the only reasonably precise figures we can give at the moment.
Lord Soames: How do they compare?
Lord Bruce of Donington: My Lords, the Minister was kind enough to quote the balance-of-payments figures. May I ask him to say how much of the very welcome surplus to which he referred has been due to oil exports?
Lord Lyell: That is rather wide of the original Question, my Lords, but I shall endeavour to find out and write to the noble Lord.
Lord Soames: My Lords, may I press my noble friend to compare whatever figures he has for the current financial year with the figures for the previous financial year?
Lord Lyell: My Lords, the figures I have are for 1980. I am afraid that I could not, without notice, compare them with those for 1979.
Lord Soames: That is what the Question asks, my Lords.
Lord Lyell: My Lords, having given the figures for 1980, I will inquire into the relevant figures for 1979 and write to my noble friend. The 1981 figures are not yet available.

Elstree Aerodrome: Usage and Fees
2. 48 p.m.
Lord Bruce of Donington: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will cause an investigation to be made into the circumstances in which Mr. S. K. Chutani, a flying instructor, became as from 12th February last liable for a fee of £100 for each landing of his aircraft at Elstree Aerodrome where the normal landing fee is £2·20; and into the conditions upon which the Montclare Shipping Company Limited are permitted the operating monopoly of Elstree Aerodrome and further to extend this monopoly to the London School of Flying, to the detriment of a growing number of flying students.
Lord Lyell: My Lords, inquiries have been made about the position. I understand that Elstree Aerodrome is privately owned by the Montclare Shipping Company Limited, who operate it under ordinary licence issued by the Civil Aviation Authority. This enables the licensee to give or withhold permission for his aerodrome to be used as he thinks fit. The terms under which permission is given are a matter between him and the users. I regret that, in the circumstances, I cannot comment on the fees charged to Mr. Chutani or any agreements between the aerodrome and the London School of Flying.
Lord Bruce of Donington: While thanking the Minister for that reply, my Lords, may I ask whether he would agree that, on the face of it, the charges seem to be wholly disproportionate, particularly bearing in mind that a landing fee becomes payable every time circuits and bumps are done, and that therefore a very large sum can be accumulated within a matter of hours? In regard to the ordinary licence granted to the airport operator, may I ask the noble Lord to say whether any conditions attach to that licence; whether the licence is renewable and, if so, when; and whether there is any machinery for objection to be made to the renewal of the licence or indeed its continuance?
Lord Lyell: My Lords, the licence under which Elstree Aerodrome is operated is laid down in the Air Navigation Order 1980. The grant of the licence is regulated under Article 87 of that order, and of course the Civil Aviation Authority may attach conditions to the grant of the licence. Any of those conditions would concern the safety of aircraft operations. If there are any complaints or specific problems as to a licence between an individual and the private owner of the aerodrome, that would leave any aggrieved individual in the position of taking the normal action which would be available to any other aggrieved individual.
Lord Balfour of Inchrye: My Lords, can the Minister say whether this exhorbitant landing fee represents an individual discrimination or a general raising of
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levels? The Minister says that the airport is privately owned, but is it not within the powers of the Civil Aviation Authority to suspend the licence for as long as this absurd state of affairs continues at what is probably the most valuable private and commercial small airfield in London?
Lord Lyell: My Lords, when an aerodrome is licensed for public use, as opposed to ordinary use, then of course the aerodrome must be available to all persons on equal terms and equal conditions. But the airfield at Elstree is licensed under the Air Navigation Order for merely ordinary use, and is available for the use of the licensee and persons who are specifically authorised by the licensee. Under the current licensing regulations there is no requirement that all users should be accepted on the same terms so far as landing fees or any conditions are concerned.
Lord Bruce of Donington: My Lords, will the noble Lord take note o f the fact that this matter has been referred to the Race Relations Board?
Lord Lyell: My Lords, I shall certainly take note of the position, but I think that I should not comment any further.
Lord Airedale: My Lords, is the scale of the licence fees being charged by the licensee a consideration that can be taken into account by the Civil Aviation Authority in deciding whether or not to renew the licence?
Lord Lyell: My Lords, I think that the noble Lord is under a slight misapprehension. It is not the licence fees that are at issue, but rather the landing fees that are being charged by the licensee to a private individual. So far as the main part of the noble Lord's supplementary question is concerned, the answer is, no.
Baroness Llewelyn-Davies of Hastoe: My Lords, could this be said to be an argument against privatisation in general?
Lord Lyell: My Lords, so far as the other 150 licensed airfields are concerned, I do not think so.
Baroness Llewelyn-Davies of Hastoe: We do, my Lords.

Afghanistan: Soviet Use of Chemical Weapons
2.52 p.m.
Lord Orr-Ewing: 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 diplomatic representatives in Afghanistan have assessed the number of casualties arising from the Soviet use of chemical and biological weapons.
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Lord Trefgarne): My Lords, recent reports that the Russians are using chemical weapons in Afghanistan, and inflicting heavy casualties, are a matter of grave concern. We have no independent means of investigating the allegations, since our diplomats cannot travel outside Kabul. But we give strong support to the United Nations' resolutions for an investigation on the spot by experts.
Lord Orr-Ewing: My Lords, I thank my noble friend for that information. Is it not true that the United Nations has now passed two resolutions asking that this matter should be investigated, the last being on 9th December 1981? Are not the wishes of the United Nations being totally frustrated because the Kabul administration are refusing to allow any investigators to visit Afghanistan, and the Soviet authorities who are in control are equally refusing? What can be done to expose crimes of this kind where, according to a report to Congress, 3,000 deaths have occurred as a result of the use of nerve gases, toxic substances, and other chemical warfare weapons? What can we do to try to investigate the situation when local people will not allow in investigators?
Lord Trefgarne: My Lords, of course we cannot force the administration, or rather the régime, in Kabul to accept the United Nations' mission for an investigation on the spot. But history tends to suggest that those who refuse in this way have something to hide.
Lord Peart: My Lords, may I ask a question? I hope that the noble Lord who asked the Question has read the excellent report from Delhi by Trevor Fishlock, who states:
"These claims"—
that is, that 3,000 Afghans have been killed in 47 chemical attacks—
"invite scepticism. So far as is known, no other country or agency can provide evidence of chemical warfare, certainly not on the scale suggested".
I hope that noble Lords will be very careful about attacks on the Soviet Union.
Lord Trefgarne: My Lords, I, too, have seen the report to which the noble Lord has referred; but as I said earlier, I can neither confirm nor deny either of the reports that have appeared in the press, because our diplomats are not able to visit the spots on the ground.
Lord Avebury: My Lords, is the noble Lord aware that I have been talking to an Afghan refugee who came back from the border area last week, and who said that the United Nations' mission there was receiving massive evidence of casualties caused by the use of chemical weapons, and that reports have been made to the investigating mission by not only the patients, but also the doctors who have treated the casualties? Is the noble Lord further aware that evidence accumulating in Eritrea shows that nerve gases are being used there on a wide scale, too? Does not the noble Lord think that the time has now come when the United Nations should make a proper and
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thorough investigation of all the claims of the use of these weapons in the three areas referred to—Cambodia, Afghanistan and Eritrea—and stop pussyfooting about and making excuses that we do not have the information because our ambassadors cannot obtain it?
Lord Trefgarne: My Lords, I certainly agree that an investigation by the United Nations would be very helpful in this context. The General Assembly resolution makes provision for that investigation, and in the resolution the Secretary-General is invited to report to the next session of the General Assembly with the results of his investigation. But the fact remains that it will be very difficult for him and his experts to produce a conclusive and definitive report if they are not able to investigate the areas concerned.
Lord Jenkins of Putney: My Lords, is the noble Lord aware that The Times report this morning fairly conclusively reaches the view that these reports are in fact without foundation, and in these circumstances is it not right that we should withhold judgment in the matter until the United Nations has carried out a full examination—which of course all of us would wish to see—and a conclusion can be reached? Is it not undesirable that in the meantime currency should be given to these rumours while they are still rumours?
Lord Trefgarne: My Lords, I am afraid that it is not within my gift to prevent these stories appearing in the press, and I have to say that many of the press stories in fact have a good deal of circumstantial evidence to support them. I agree that there is more than one view as to the accuracy of the reports; but, as I say, there is a good deal of circumstantial evidence to support them. I certainly agree with every noble Lord who has spoken on this matter that a thorough United Nations investigation into the issue is highly desirable, and I hope that the Soviet authorities who control not only Afghanistan, but also some other parts of the world—notably South-East Asia, where these allegations have come to light—will give access to those areas so that investigations can be made.
The Earl of Lauderdale: My Lords, does not my noble friend agree that as long as investigation is prevented, the rumours will only grow, to the discomfiture of noble Lords opposite—such as the noble Lord, Lord Jenkins of Putney, and others—who are so eager that there should be a fair and just appraisal? Therefore it is vital to press the Soviets to let an investigation take place.
Lord Trefgarne: My Lords, I certainly agree that the pressure ought to continue to be applied to the Soviets. As I said in reply to an earlier supplementary question, those who seek to prevent the investigation very likely have something to hide.
Lord Brockway: My Lords, in view of the escalation of the production of chemical weapons on both sides as a result of this situation, will Her Majesty's Government press on the Security Council of the United Nations not only the idea of a commission of inquiry, but also the view that the commission should be impartial—representing

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the unaligned nations—so that it might be acceptable to both sides in this controversy?
Lord Trefgarne: My Lords, I have no doubt that the investigation which the Secretary-General has been empowered to mount by the resolution of the General Assembly of the United Nations will be impartial, and I very much hope that it will be successful.
Lord Orr-Ewing: My Lords, will my noble friend consider whether, due to the frustrations of the United Nations, and even if pressure from all quarters does not yield any progress by the United Nations, the Government should ask the International Red Cross to look into these accusations of the use of chemical weapons in, as the noble Lord, Lord Avebury, has said, not only Afghanistan but possibly Eritrea as well?
Lord Trefgarne: My Lords, I certainly think that the views of the IRC in this matter will be very important. I am not certain that they have expressed a view so far, but I shall be very willing to hear it if they want to do so.
The Earl of Lauderdale: My Lords, does my noble friend not agree that the proposed inclusion of nonaligned nations in the investigation takes us no further since there are already non-aligned embassies in Kabul which are restricted like the rest of us?
Lord Trefgarne: My Lords, I think I would rest my case on the United Nations investigation. That resolution was carried by an overwhelming majority, I understand, and I think the world is now waiting to see that the nations at whom the finger has been pointed in this matter fully co-operate with the investigation.

DINNER
Lord Denham: My Lords, it may be for the convenience of the House if I announce that dinner will be available this evening at the usual time. The Committee stage of the Local Government (Miscellaneous Provisions) Bill will be adjourned at approximately seven o'clock for a short period, and the Second Reading of the Civil Aviation (Amendment) (No. 2) Bill will be taken during this adjournment.

County of Lancashire Bill [H.L.]
3.2 p.m.
Bill read a second time and committed to a Select Committee.
Lord Houghton of Sowerby Lord Houghton of Sowerby rose to move, That it be an Instruction to the Committee to whom the Bill is committed that they should not allow Clause 197 or paragraph 5 of Schedule 6 to the Bill so far as they have the effect of preserving from repeal the existing Burnley Borough by-law which bans dogs from certain parks in Burnley, unless they are fully satisfied that if similar by-laws were now proposed under Section 164 of the Public Health Act 1875 or any other Public
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General Act they would be confirmed by the Secretary of State.
The noble Lord said: My Lords, I beg to move the Instruction standing in my name. The background to this Instruction is a regrettable breakdown in the communications and in the normal peaceful relationship between a local authority and a considerable section of its citizens. A fierce controversy has been going on in Burnley for close upon five years over a by-law banning dogs from certain of the public parks and pleasure grounds in the town.
It so happens that this is not the first we have heard of it in your Lordships' House, because the late Lord de Clifford raised the matter when he initiated a debate on dogs in society on 14th December 1977. I spoke in that debate. I was at the time fully informed about the row in Burnley over dogs, because I was chairman of a Joint Advisory Committee on Dogs in Society, which had published a report only a year before. So I was hearing a good deal about dogs in society and in Burnley at that time.
The question before us now arises from the provisions of the County of Lancashire Bill, which saves from repeal in 1984 the Burnley by-law of 1977 from which all these troubles flow. Your Lordships will be familiar with the succession of Private Bills promoted by local authorities created under the local government reorganisation ten years ago. The purpose of these Bills is to update and consolidate in new legislation all that they wish to retain of the by-laws of the past—and this is such a Bill.
The Motion I move is described as a cautionary Instruction. I had earlier intended to put down what is described as a mandatory Instruction; that is, to instruct the Committee to which the Bill will be referred to disallow the saving clause in the Bill which preserves the Burnley by-laws on dog control from repeal in 1984. But it was put to me that this, if passed by the House, which the House might be very reluctant to do, would deprive the sponsors of the Bill of any opportunity of stating their case. I had no intention of doing that, or, indeed, of fettering in anyway the judgment of the Committee on the petitions received on this part of the Bill.
I realise that in moving this Instruction I am doing no more than underlining what will be considered by the Committee on the petitions already lodged, but I feel it desirable to do so because of the highly contentious aspects of this matter. We may find no remedy for what has happened, but we cannot put aside having to decide on the provisions of this Bill. As I have said, this Bill saves from repeal in 1984 and extends the life of certain by-laws which in Burnley have been contested, resisted and defied, with dire consequences to individuals and to the detriment of the social contentment of the town. That is quite enough to make it important.
The principal Act which enables local authorities to make by-laws for the regulation of public walks and pleasure grounds is the Public Health Act 1875—a Public General Act. Section 164 of that Act enables local urban authorities to provide places of public recreation, and it also makes provision for the local authority to make by-laws,
"for the regulation of public walks or pleasure grounds and for the removal of any person infringing the byelaws".

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Nothing was said in the Public Health Act 1875 specifically about dogs, though by-laws have been made and confirmed by the Home Secretary banning dogs from certain specified parks or pleasure grounds in particular localities; and there were ten such cases last year. In Burnley, however, the borough council had anticipated by four years the Public Health Act 1875. They had obtained powers of their own in 1871 under the Burnley Borough Improvement Act. They not only took powers to prohibit dogs from entering public parks, but I believe also they prohibited the throwing of snowballs in the street. A far-seeing local authority was the Burnley borough in 1871!
Section 248 of the Burnley Borough Improvement Act 1871 enabled the borough council to make by-laws from time to time for the regulation of parks and open spaces; and among them was the making of by-laws,
"For preventing or regulating the admission therein of dogs".
The word "preventing" the entry of dogs distinguishes the Burnley Act 1871 from the Public Health Act 1875, passed four years later. I am not myself aware of any other local authority which has by-law making powers in the same terms as those granted to Burnley in 1871. Of course, after the Public Health Act 1875, four years after the Burnley Act, no further Private Bills had either cause or need to seek special powers to deal with dogs in pleasure grounds or parks, because they were provided by the Act of 1875 anyhow.
Although the Burnley Borough Improvement Act was passed 110 years ago, no move appears to have been made to use it against dogs in their parks until 1976—five years ago. No by-laws prohibited the entry of dogs into any of the parks in Burnley. Early in 1976, however, the local authority submitted draft by-laws to the Home Office. The draft by-laws were then submitted for consideration under the Public Health Act 1875, but the Home Office asked why they were not seeking the powers under their own Borough Improvement Act 1871. The Home Office pointed out certain difficulties in using the 1875 Public Health Act, but none of these, as far as I can tell, was a difficulty of principle, but rather of convenient procedure. So the local authority fell in with the Home Office view that the by-laws should be made under the Borough Act 1871. Much correspondence took place with the Home Office before the by-laws were finally approved. Then on 19th November 1976 the statutory notice of intention to make the by-laws was published in the local press. This was the first grievous turn of events. The heading to the legal terms of the statutory notice was: "Pleasure Grounds—By-laws". Not a word about dogs; no publicity; just that heading.
That statutory notice in very small print in the local press simply failed to register. We are told—and it is by general assent true, I think—that dogs are an emotive subject, as this proved swiftly to be. But the formal notice of the wrath to come passed almost unnoticed, so much so that the Home Office received in response to the statutory notice only three letters of objection, and two of those were written before the statutory notice had been published. Two people had evidently got wind of what was about to happen, and they wrote objecting before it did. Only one letter of objection
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reached the Home Office that bore a date after 19th November 1976.
The Home Office did their job and invited the observations of the council on the three objections received. But without waiting for a reply from the local authority, the Home Office went ahead and confirmed the by-laws on 19th January 1977 to become operative on 1st February 1977. The notices actually imposing a ban on dogs in certain parks and pleasure areas in Burnley were not posted until the following June. So peace reigned between February and June. The citizens were apparently unaware of what was awaiting them when the notices came to be posted in June. Then when they were about to walk their dogs in the parks they saw a notice which said: "Burnley Borough Council. No dogs allowed. Penalty: liable to a fine of £20".
Then the balloon literally did go up: distress, anger, adverse publicity and hostility. The reaction of the local people was swift and unmistakable. In July, the month following the posting of the notices, a large demonstration of protest was held outside one of the parks and the protestors eventually went through the park accompanied by the press, photographers, dogs and children.
The imposition of the by-laws appeared to have taken the public by surprise and the hostile reaction of Burnley's dog owners appears to have taken the council by surprise. So the council's recreation and leisure committee met on 8th August 1977 to give further consideration to the by-laws on dogs. A petition containing 3,000 signatures was presented to the committee signed by residents mainly in the densely populated parts of the town, close to the open spaces affected by the ban.
The sub-committee of the council allowed spokesmen for the objecting citizens to state their case. The committee, however, decided to recommend to the council no change in the by-law. This was swiftly followed by plans for another demonstration, this time a defiant walk through the banned parks with dogs. The council met this threat of defiance by applying to the vacation judge for an interim injunction. This was granted against certain of the organisers of the planned protest. Others, however, went on their protest walk with their dogs and this was followed by a shoal of letters to the Home Office protesting about the whole business.
Thereupon, the Home Office—not surprisingly perhaps—sat up and took a little notice of what was happening in Burnley and asked the council to consider allegations that the Home Office had been misled as to the nature of some of the areas covered by the ban. In September 1977 the Home Office asked for an answer to these allegations. The council confirmed that the parks concerned came within the terms of the assurances that they had given to the Home Office in 1976, not only about the parks banned but about accessibility to other areas for people to take their dogs.
The Home Office accepted that assurance. But there was to be no peace in Burnley. Attempts to find a formula for a compromise between the council and the protestors which had split the town were unsuccessful. Injunctions against some objectors were granted and eventually the validity of the by-law was

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tested in the Chancery Division of the High Court in July 1978. Sir Hugh Francis, QC, sitting as a deputy High Court judge, rejected the contention that there was any misrepresentation by the council; nor, as it seemed to him, was there any mistake on the part of the confirming authority.
This is one aspect of the matter which I suggest needs to be looked into. I am advised that in the course of the proceedings in the court an official of the Home Office asserted that the Home Office would have been unlikely to confirm the by-laws as they did had they known at the time all they had learned since—particularly about the availability of alternative areas reasonably accessible. I have not been able to examine the record of the court so I cannot vouch for the accuracy of what has been reported to me. However, the maps did not convey the true nature of the terrain of Burnley.
The judge, however, decided that the real point of the case was: Is the dog ban reasonable? After a personal visit to Burnley to see for himself, and after reviewing the matter fully, the judge held that the by-law was valid and the council were entitled to relief to ensure due observance.
Some of the defendants gave the appropriate undertakings at the conclusion of these proceedings; but others refused. The sequel was the imprisonment of several defendants for contempt of court, and one of those was a married woman who had a quite large family and she declared that to her it was a matter of conscience. This, of course, stirred up more controversy and bitter feelings in Burnley—a very unhappy town.
The latest development is over the huge costs granted to the council against the defendants, which they have not paid and are unlikely to be able to pay. While some time ago the council decided upon taking bankruptcy proceedings against the defendants who owed costs, this step has recently been halted. It is understood that another upsurge of local indignation and protest led the council to change their mind because just recently the council in a special full session decided, after a four-hour meeting, by a vote of 28 to 20 to hold bankruptcy proceedings in abeyance and to remain free to take further action to recover some or all of the costs outstanding—some £12,000—if the circumstances of the three defendants changed for the better. So the headline of the Burnley Star the next day was:
"An 8-year time bomb for dog trio. The gun at their heads".
That was the banner headline.
Now, to leave that unhappy story there—because at this very moment that is where it is—we had better come to the more mundane problems of this Bill. The material provisions of this Bill appear to me—I have not taken legal advice on this, I have just studied the matter as best I can—to be Clause 197 and in paragraphs 2 and 5 of Schedule 6. The schedule preserves the by-laws from repeal if what was done could have been done under any provision of a Public General Act relating to the same matter in the same area. That appears to make the by-laws in a Private Act virtually interchangeable with the provisions of a
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Public General Act which might apply to the same matter in the same area.
It seems to me, therefore, that if what the Burnley by-law does could have been done under the Public Health Act 1875, then it is preserved under this Bill: hence the Instruction to the Committee to which the Bill will be referred to disallow the saving clause relating to the Burnley by-law unless they are fully satisfied that if similar by-laws were now proposed they would be confirmed by the Secretary of State under the 1875 Act. That seems to me to be the crucial test. If the Committee is so satisfied then the Bill may remain as it is. If not, the saving clause should be disallowed and Burnley, or any other appropriate authority, if they saw fit to do so, would make a fresh application when the Burnley Act by-law expires in 1984. This Burnley could do under Section 164 of the Public Health Act 1875 and, as appropriate, under Clause 31 of this Bill which provides specially for the protection of grass verges maintained in an ornamental condition.
The judgment of the court was concerned more with the reasonableness and the validity of what the borough authorities did in 1977 under the 1871 Act. The test which the Motion asks the Committee to apply is whether, if an application were made now under the Public Health Act 1875, they are fully satisfied that it would be confirmed. I hope I have made the position of the Bill as clear as possible, and I hope that your Lordships are in no doubt as to the turmoil which goes on in the Borough of Burnley.
Moved, That it be an Instruction to the Committee to whom the Bill is committed that they should not allow Clause 197 or paragraph 5 of Schedule 6 to the Bill so far as they have the effect of preserving from repeal the existing Burnley Borough by-law which bans dogs from certain parks in Burnley, unless they are fully satisfied that if similar by-laws were now proposed under Section 164 of the Public Health Act 1875 or any other Public General Act they would be confirmed by the Secretary of State.—(Lord Houghton of Sowerby.)
3.23 p.m.
Lord Sandford: My Lords, I have been asked to speak on this matter by the Borough of Burnley, and I am grateful to the House for its indulgence when these matters come before it. Last month it was the Shrewsbury Football Club and now it is the Borough of Burnley's dog owners. r am anxious to speak briefly because I want to preserve my failing voice for sex shops and Amendment No. 96 of the Local Government (Miscellaneous Provisions) Bill. I believe I can be brief. It is absolutely evident that this matter may have been contentious in Burnley, but it has now been resolved and I have to say that Burnley's by-laws on this matter are not in any way out of the ordinary. They conform entirely to the Home Office guidelines—if they did not they would not have been approved—and in addition they were confirmed by a High Court judge in 1978. Indeed, several sets of further by laws, more stringent from the point of view of dog owners, have been approved by the Home Office since.
I would put to the House that it is no way an occasion for a review of Burnley's by-laws, and I suggest that the whole matter can very safely be left in the hands of our own Select Committee to consider. I believe that

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the Instruction is as ineffective as it is unnecessary. It will do no harm to pass it, but if a Division is called I will vote against it, and I would recommend your Lordships to do the same.
Lord Belstead: My Lords, I should like, if I may, to say a brief word from the point of view of the Government on the Instruction of the noble Lord, Lord Houghton of Sowerby. I have no doubt the Committee will wish to address itself, quite properly, to the question of whether the Burnley dog by-laws can be confirmed under the Public Health Act 1875. But whether or not it would be confirmed must remain a hypothetical question since my right honourable friend the Home Secretary would reach his decision on the merits of a particular case as and when it arose once he had satisfied himself that the by-law was legally valid. I think these legal problems are a matter for the Committee to discuss in depth and therefore, from a rather different point of view, I am saying very much the same as my noble friend Lord Sandford—that, with respect to the noble Lord, Lord Houghton, the Instruction would be of very little effect.
Of course, it is for the Committee of your Lordships' House to decide on its proceedings, but I think that because the Committee cannot possibly ascertain whether or not my right honourable friend the Home Secretary would confirm by-laws similar to those already in existence in Burnley, since that decision would have to await the scrutiny of the merits of the case in the event of Burnley wishing to make new by-laws for dogs, the Instruction will really be of very little effect.
The Chairman of Committees (Lord Aberdare): My Lords, it would be quite unsuitable for me to take sides in this dogfight. I would merely say a quick word on the procedure that will now follow the Second Reading of this Bill, with regard to the question of the Instruction. The Bill will in any case go to a Select Committee. There are in fact 19 petitions against it, of which 9 are concerned with the question of dogs and Clause 197, with which the Instruction is also concerned. If this Instruction is agreed to by your Lordships it will also go to the Select Committee, and the Select Committee will also have available to it the Hansard of this particular debate. So I would suggest to your Lordships that the best thing is for the matter to be left to be gone into thoroughly by the Select Committee, who will have the advantage of counsel on both sides, for the promoters and the petitioners.
Lord Davies of Leek: My Lords, there is a point I should like to make. Do we know who will be on that committee? What will be the position of those who may be on that committee if this issue is pushed to a vote? Why put it to a vote? What is the position of those who may be on the committee?
Lord Aberdare: My Lords, the members of the Committee have not yet been chosen, but, as usual in your Lordships' House, they will be entirely independent people who have no axe to grind in this matter.
Lord Leatherland: My Lords, if members of the Committee are approached on this matter, will they be
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asked whether they have a dog?—because they might be biased if they have.
A noble Lord: Or if they have not.
Lord Houghton of Sowerby: My Lords, I will not detain the House for more than a moment or two. I did, during the course of my speech, say that this Instruction did no more than underline what the Committee dealing with the Bill would have to consider anyhow on the petitions already received, so that whether or not this Instruction is passed the Committee will have to do the job the petitioners require it to do. I thought that to underline the importance of this matter and sketch in some of the background to it might not only enlighten the House but generally convey the atmosphere in which the Committee might like to consider the petitions received. That seemed a reasonable thing to do. I sincerely hope therefore that the House will feel able to pass this Instruction without a Division and let the Committee get on with its complicated task.
I take the point made by the noble Lord the Minister about the position of the Home Secretary here, but I think the Committee will have to make the best they can of the situation. They cannot do the impossible, but they will have before them the judgment of the court, the evidence of the petitioners and a great deal else relating to the technical side of what was done about the by-laws. Therefore, I sincerely hope that your Lordships will feel disposed to accept the Instruction I have moved.
On Question, Motion agreed to.

Travel Concessions (London) Bill
3.30 p.m.
The Parliamentary Under-Secretary of State, Department of the Environment (Lord Bellwin): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Bellwin.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
Clause 1 [Travel concessions in London]:
Lord Underhill Lord Underhill moved Amendment No. 1:
Page 1, line 13, at end insert—
("( ) It shall be the duty of the Greater London Council in the exercise of their powers under subsection (1) to enter into arrangements with the London Transport Executive for the provision of travel concessions for elderly and disabled persons").
The noble Lord said: The Committee has before it this Bill to give the Greater London Council powers to pay for travel concessions for the elderly and the disabled—precisely the same powers as given to other authorities in the United Kingdom, under the Transport Act 1968. I suppose that I should declare an interest,

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as I should have done on Second Reading, not because I am a ratepayer receiving these concessions, but because I have the facility of a British Rail senior citizen's pass which gives me concessions in London. Incidentally, I noticed on reading the posters as I came in this morning, that the concessionary fares for those persons who hold these passes outside the Greater London area will be increased by three times.
This is a simple amendment, the purpose of which is to place on the Greater London Council a duty to exercise these powers and to enter into arrangements with the London Transport Executive to provide the services required to meet the needs of the elderly and the disabled. On Second Reading, I inquired whether there was any assurance that payment of a grant for concessionary fares could not be held to be unlawful. I said:
"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". [Official Report, 8/3/82; col. 17.]
The noble Lord, Lord Bellwin, did not greatly help me, because he said on Second Reading on 8th March at column 22 of the Official Report:
"My right honourable friend gave his view of what is a reasonable level of support in his transport supplementary grant settlement".
I ask your Lordships to note the words "his view". It was not a legal ruling. The noble Lord, Lord Bellwin, continued:
"It is for the GLC to take their own view on whether a different level would comply with the law".
Therefore, apprehensions about a possible challenge to the concessionary fares are real. I shall not take up the time of your Lordships by quoting from the Law Lords' judgment—this will arise on Amendment No. 2—but after repeatedly reading the whole text of that judgment, there is nothing that gives me, as a layman, an assurance that the concessionary fares could not be challenged, and that is the advice that I have received.
I am certain that all noble Lords will want the concessions for the elderly and the disabled to be made an actual fact and to be continued by the GLC, as is proposed in this Bill. The amendment seeks to help to clarify the position by placing a duty on the GLC to make arrangements with the London Transport Executive in exercising the powers to provide these travel concessions for the elderly and the disabled. We submit that this would lessen the possibility of the provision of these concessions being challenged in law. That is the purpose of the amendments. I beg to move.
Lord Bellwin: It seems to me that the noble Lord's proposed amendment to Clause 1 is closely linked to his proposed new clause, in that both taken together are intended to prevent the legitimacy of the GLC's expenditure on travel concessions from being challenged in the courts, particularly on the ground that the GLC has breached its fiduciary duty to its ratepayers. I can understand the fears. They were aired when this Bill was considered in another place, and the then Parliamentary Under-Secretary of State for Transport dealt with the point. The noble Lord, Lord Underhill, might like to look at what he said in Hansard for 1st March at columns 45 and 46.
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But to take the noble Lord's amendment to Clause 1 on its merits, the first point to be made is that this Bill is concerned with putting the GLC in exactly the same statutory position as all other local authorities in England and Wales, so far as its powers to pay for travel concessions are concerned. It is for the noble Lord to show why the GLC should be under a duty to arrange for concessions, while all other local authorities have a discretionary power to do so. I do not think that he has satisfactorily shown why this should be so.
The Government's position is clear. We have said all along that, in our view, the question of whether there should be travel concessions and how generous they should be is one for individual local authorities to settle for themselves in the light of the circumstances in their own areas. We stick to that view, in spite of the pressure from various quarters to impose a standard national scheme. It seems to me to follow from that that the GLC, like any other local authority, should be free to choose whether or not to pay for travel concessions, as well as what kind of schemes to run. I do not imagine that there is any risk that the GLC will need compelling to continue its present scheme. I therefore see no need or justification for treating the GLC differently from all other authorities by placing a duty upon them.
I recognise that the amendment provides a foundation for the new clause. The main question here is whether the GLC's expenditure on travel concessions should be exempt from the normal fiduciary duty of local authorities to look after their ratepayers' money with proper care. It seems highly undesirable for any local authority to be freed from the responsibility to use its ratepayers' money in a responsible way. I can see no justification for saying that concessionary travel is, in some way, so special that a local authority should he able to spend its ratepayers' money on it as wastefully and as irresponsibly as it liked; and why should the GLC alone be allowed to be free of this normal duty to its ratepayers? Its recent performance does not seem to suggest that it is such an exceptionally responsible authority that there is no need for it to be subject to the normal constraints within which every other local authority works and has worked for many years.
The only justification, of course, lies in the fear that the noble Lord, Lord Underhill, and others have expressed, that, somehow, the GLC's fiduciary duty will be interpreted in the courts in a way which will prevent it from making even perfectly proper expenditure on travel concessions. This fear is misplaced. Legislation, as it stands, has allowed all other local authorities to run their concessionary fare schemes without challenge, and I am not aware that any challenges have been contemplated, even in the light of the salutary reminder which the courts have recenty given to local authorities of their underlying duty to every ratepayer.
The present powers for local authorities to pay for travel concessions for the elderly and the disabled, under Section 138 of the Transport Act 1968, follow the Public Service Vehicles (Travel Concessions) Act 1955. The 1955 Act was specifically framed to reverse the effect of the judgment in the case of Prescott v. Birmingham Corporation. In that case, the court held that it was unlawful for Birmingham Corporation

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to grant travel concessions for pensioners, because it had to run its transport undertaking on a commercial basis.
The present Bill gives the GLC specific powers to arrange for travel concessions, as other authorities already have. In making payments to London Transport for this purpose, the GLC are not constrained by London Transport's duty to break even, as far as practicable, which was the main consideration in the Bromley case. I have seen no evidence that the present powers under the 1968 Act have become inadequate in this respect, nor that they would not serve the GLC as well as they have other local authorities. So there is no case for exempting the Greater London Council from the normal proprieties of local authorities by trying to exempt them from their fiduciary duty. If the noble Lord wishes to press the amendment, I would ask your Lordships to resist it.
Lord Hawke: Before the noble Lord sits down, could I ask him to give some guidance to those of us who are in receipt of these benefits: whether it would be proper for us to vote one way or the other on either of these two amendments?
Lord Bellwin: Just as when the noble Lord, Lord Underhill, in moving his amendment declared his interest I assumed he would not have any reservations or inhibitions about voting, any more than he did about speaking to the amendment, so I should have thought that that would apply to my noble friends and, indeed, to anybody else who wished to vote.
Lord Mishcon: In view of that intervention, which was obviously most proper, may I disclose that I am in the dual capacity of walking into one formula, happily not the disabled, and also, very proudly, of having been a ratepayer of London for very many years. Having disclosed that interest, may I speak in support of the amendment and deal with the arguments which, as always, have been lucidly expressed by the noble Lord the Minister. I say "lucidly". I did not say "logically". The noble Lord the Minister will forgive me if I differentiate between the two.
There is not the slightest doubt that if the noble Lord the Minister were in a judicial capacity and could pronounce his judgment as a member of the judicial side of your Lordships' House, we should have listened to him with rapt attention and there would have been no point in moving this amendment. But the noble Lord the Minister does not sit in a judicial capacity. The Law Lords have recently come to a decision—I am one of those who believe in respecting the decision of the Law Lords and in respecting the Law Lords themselves—which rather surprised many of the people who occupy the voluntary position of being local councillors. It was this: When they cast their benefits, in welfare or otherwise, they operate as trustees for the ratepayers and they must always remember that there is this fiduciary capacity.
It is quite right that there was a Birmingham case some years ago, but I believe most of your Lordships would have assumed when looking at local authority welfare expenditure that that was in the wide discretion of local government, who are merely asked to
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act reasonably in the way in which they dispense ratepayers' money. The difference now is that it is not a test of reasonableness, whatever that may be. The noble Lord the Minister was asked by my noble friend and myself on Second Reading to tell local authorities, by a pronouncement from the Front Bench, what they could and what they could not do with regard to their expenditure upon the disabled and the aged and he replied, again lucidly but not very helpfully, that their expenditure had to be reasonable. We therefore managed to go round the eternal circle before the Second Reading stage was passed. At the Committee stage we cannot go round in circles. We have got to be a little more precise.
The purpose of this amendment is the following: this Bill pronounces that the Greater London Council shall have the power to do what other local authorities do over conferring concessionary travel allowances upon the elderly and the disabled. Leaving those words as they are, we are back again at the beginning of the circle in regard to the fiduciary capacity concerning ratepayers. Can Bromley again come forward and say that too much is being spent upon the disabled and the elderly and that in those circumstances the fiduciary capacity of the local authority, the Greater London Council, is being breached?
The purpose of a legislative assembly, as your great Lordships' House is in this matter, is to be precise and clear. We were not clear before, otherwise we should not have had the House of Lords decision. What this amendment says is that this is not just a power: there shall be a duty to look after the elderly and the disabled by way of travel concessions. And if there is a duty to do so, nobody can come forward and say that you are exercising a power you need not have exercised and therefore you are in breach of the fiduciary capacity. If therefore the Government want clarity and do not wish to fog the matter or open the door to further litigation, which can cause so much time wasting and cost wasting, they will agree to this amendment instead of opposing it as, so far, the noble Lord the Minister has done.
Lord Bellwin: Had I attempted, as the noble Lord Lord Mishcon, asked me to do at Second Reading to spell out exactly what local authorities should do in this direction—or in any other, for that matter—I doubt very much whether they would have thanked me, even if I had decided so to try—which clearly was impossible to do. I repeat: what this Bill sets out to do is to oblige the Greater London Council to be in exactly the same position as all other local authorities—neither forward nor behind. I do not think we need to go further.
Lord Underhill: In view of the noble Lord's remarks, which to a great extent deal with the second amendment (which I have not spoken on). I should like to read very carefully what he has said. I know that there is anxiety that the Report stage should be completed fairly quickly because of the desire to get the Bill passed by the end of the month, and we wish to assist. As I have already said, I should like to read what the Minister has told us regarding the first amendment, and then we can decide what to do at the Report

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stage. Therefore I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1 agreed to.
3.48 p.m.
Lord Underhill Lord Underhill moved Amendment No. 2:
After Clause 1, insert the following new clause—
("( ) No expenditure incurred in the exercise of the duty imposed upon the Greater London Council by section 1 of this Act shall be held to breach the fiduciary duty of the council to the ratepayers").
The noble Lord said: This amendment is the one upon which the noble Lord the Minister has to a great extent concentrated in his reply to Amendment No. 1. Its purpose, quite simply, is to provide that expenditure incurred by the Greater London Council in carrying out the powers under Section 1 (to provide for concessionary travel for the disabled and the elderly) shall not be held to breach the fiduciary duty of the council to ratepayers.
Reference has been made to the judgment of the Law Lords who placed considerable emphasis upon the fiduciary duty to ratepayers. It is very difficult to quote extracts from nearly 100 pages of the judgment, but a very important statement was made by the noble and learned Lord, Lord Scarman, who referred to the case which my noble friend Lord Mishcon mentioned during his remarks on the previous amendment: the Birmingham case of 1955 which concerned their fiduciary duty relating to concessionary fares. Birmingham then had no general powers. On page 6 of his judgment the noble and learned Lord, Lord Scarman, said:
"The legislation, the facts and the era were very different from the 1969 Act and Greater London in 1981. Moreover, Parliament has subsequently intervened to permit fare concessions. But a principle was declared by the Court of Appeal. it is well put in the headnote as being that local authorities owe a fiduciary duty, analogous to that of a trustee,"—
that is a remark to which my noble friend Lord Mishcon referred—
"to their ratepayers".
The noble and learned Lord, Lord Scarman, also stated:
"So far as I am aware, the principle of a fiduciary duty owed to the ratepayers has never been doubted. Certainly, I do not doubt it".
May I quote also from the judgment of the noble and learned Lord, Lord Keith of Kinkel. Dealing also with the Birmingham case of 1955 the noble and learned Lord said at page 2 of his judgment:
"The effect of the decision has been reversed by statute in relation to free travel for certain selected categories of persons, including the old (see section 138 of the Transport Act 1968, and, as regards London, section 40 of the 1969 Act), but the general principle laid down remains valid".
Mr. Kenneth Clarke, until recently Under-Secretary of State for Transport, pointed out on 1st March (in column 45)—and I can assure the noble Lord, Lord Bellwin, I have read and re-read all the speeches on this matter in another place—
"It is true that all the statutory powers of local authorities are subject to the fiduciary duties of ratepayers, which for many years all local authorities have owed to ratepayers, as the courts have said".
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He added that it is not a novel doctrine; it goes back 20 years. I am certain that many noble Lords would think that 20 years was not a long time. In the light of that statement, concessionary fares could come within the fiduciary duties. It may be that the question of concessionary fares was never placed in doubt in the legal arrangement; but Mr. Kenneth Clarke, in the same speech, stressed that the Law Lords had applied a stricter test for transport than they might have done for other social services.
With respect, I would say that it is not sufficient for the former Under-Secretary of State to have stated, as he did in column 46:
"There is no prospect of anyone challenging a well thought-out concessionary fares scheme introduced by councils that exercise the statutory powers that they have had for many years".
That was what everyone thought was the case applying to the Greater London Council's general cheap fares policy. Everybody thought until the Bromley case that that was within the law. Moreover, the Minister stressed that all local government policies could be held to come within the fiduciary duty. According to the judgment, there must be a balance between the duty to the ratepayers and that to particular groups of persons. The disabled and the elderly are particular groups of persons.
If the Minister says, as he did in reply to the first amendment, that this could not possibly arise—he hopes that it could not arise; he has no certainty—will he define those local government activities which would be liable to the 1955 judgment concerning fiduciary duty and those which would not? The noble Lord, Lord Bellwin, could not do that. He may say as he did in relation to Amendment No. 1, that it depends upon the policy being reasonable. I would suggest with respect that what is considered reasonable in 1982 might not be so considered in 1985. I am sure that what was considered reasonable when I entered politics in 1930 is far different from that which, now, 52 years later, is considered reasonable.
No one can say that these powers could not be challenged. Why not, therefore, provide safeguards in the Bill? Mr. Kenneth Clarke emphasised (in column 45) on 1st March that the fiduciary duty to ratepayers is not statutory. I do not think that anyone would challenge that and, therefore, as I am sure the whole Committee would wish there to be no interference with the provision of concessionary fares for the elderly and disabled, we should agree to the amendment and place it in the Bill.
May I conclude by saying that the spokesman in the other place, Mr. Albert Booth, said that it must be ensured that the Greater London Council powers to provide these concessionary fares were not circumscribed by the Lords. I am certain that he was referring to the Lords of Appeal. He wanted a freestanding power, irrespective of any duties in legislation, to provide these services. I would emphasise those last words. Later in the same debate, Mr. Kenneth Clarke said:
"There will be a free-standing power to use the rate-payers' money for the purposes of financing a concessionary fares scheme".
Note that the then Minister and the spokesman for the Opposition both wanted the same thing and used almost

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the same words. I would suggest that the desire of both honourable gentlemen to have a free-standing power can be ensured only if this amendment is approved. I would ask the Minister, if he says that it could not be challenged because it is a reasonable thing—and one's idea of what is reasonable can change—and if he believes that there is a legal ruling why it can be challenged, to quote me a legal reference as to why it cannot be challenged. I do not believe he can. As the Committee will not wish to challenge these concessions, I beg to move.
Lord Bellwin: As the noble Lord, Lord Underhill, has said, I had covered in my original response what I wanted to say on this as well as on the first amendment. Again, I see no reason to go any further than we are going; no need for the concern that the noble Lord has expressed, because, if it applies to the Greater London Council, then it applies to all other local authorities. So far as I am aware, they are not lining up for some new powers, for some new clarifications or for some new statutory legislation to specify precisely what is needed.
I do not think it is quite fair to try to say that the stance taken by the Greater London Council, which was subject to the Bromley case, can be compared in any way with what we are talking about now. There, they were setting out to do something which was open (or became so) to challenge and which was highly controversial, or became more than that in the end. In this Bill it is something quite different. This is to give the Greater London Council the same powers as everyone else, and we would want to stand on that. Let us go on with it and get this on to the statute book. Then there is no difficulty so far as I am concerned. The noble Lord is right. It could be challenged if it is not spelled out as he wishes, but, in practice, the likelihood is remote. If so, the same challenge would apply to all local authorities; and then it would become another matter. I do not think that is what we are concerned with today.
Lord Mishcon: For the sake of the time of the Committee, I wish that things could be left in the way in which the Minister would like to leave them. I think your Lordships will remember that the travel arrangements made by the Greater London Council, be they right or wrong, were forecast openly in their manifesto, be it sensible or ridiculous, and were never greeted throughout the Kingdom by lawyers or others with the remark, "How foolish! You will not be able to do it. It is contrary to the law". Nobody thought of that. No Conservative lawyer, unless he was deceitfully hiding his reasoning and arguments until after the election was over—and I do not think that is applicable to any Conservative lawyer; and I am greeted with approval from the Front Bench opposite, so I must be right—came forward.
I wonder whether the Minister remembers that so doubtful is this area of the law that the judge of first instance found in favour of the Greater London Council. From hearing the noble Lord the Minister speak, it seemed so obvious that what the Greater London Council was doing was illegal that really they ought to have known it, everybody ought to have known it
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and of course the legal position was quite clear. But it was not. The judge of first instance found in a way contrary to the Court of Appeal and the House of Lords. It is the Law Lords and the Court of Appeal who have had all the vituperation from those who are upset by their judgment. The vituperation ought not to go to them at all; it ought to go to those who frame Acts of Parliament and who revise Acts of Parliament, as this House does, and who do not do their job properly. If it be the wish of this House to pass a Bill in which it is abundantly clear that the fiduciary duty does not apply, then it is the duty of this House to do so and not to leave it to the ambiguities, the arguments, and the lawyers of the future to debate the matter if ever it comes before the courts.
In conclusion, might I briefly explain to your Lordships precisely what I mean from a practical point of view. This afternoon the word "reasonable" has been pushed hither and thither. My noble friend Lord Underhill spoke in terms of the change in the meaning of reasonableness over the passage of years. I do not intend to go into that side of the argument, but perhaps your Lordships could imagine an argument before a court of law where an analysis has been taken of those who contribute rates to the Greater London Council. Imagine that, as a result of that systematic analysis, it has been found that business rates plus rates paid by those who are neither disabled nor aged hayed contributed 80 per cent. of the rates of the Greater London Council. In those circumstances, would your Lordships be quite sure that there is not a perfectly arguable case for saying that if those who are supposed to be the beneficiaries of the trust and who have contributed 80 per cent. of the rates of London are neither disabled nor aged, then it must be a breach of the fiduciary duty of the Greater London Council if it has granted concessions which amount to quite an expensive sum in favour of the aged and disabled? If the noble Lord the Minister says that other local authorities have not thought of this and have not asked for this amendment, I would merely suggest that they might very well want to do so in the future.
When the Bills were passed and dealt with, the House of Lords' judgment was not before the other local authorities. All we ask for on this side of the Committee is clarity. We ask for what the Minister himself claims, unless I misunderstood him. He claims that it is already written into the Act. We say that we do not think that it is written into the Act. We say that we want to carry out our duties and make things clear. It is in that spirit that the amendment is proposed, and I hope your Lordships will support it.
4.3 p.m.
Lord Donaldson of Kingsbridge: Having listened very carefully to the arguments, I shall advise my noble friends to support the amendment. I want to say only one thing, apart from acknowledging the same debt which the noble Lord, Lord Hawke, does; I too travel free, with the greatest of pleasure. The point of the Bromley case was not the concessions to the elderly or the disabled; it was the sweeping reduction in fares, which was probably uneconomic. This is an entirely different issue. Therefore, I believe that we are perfectly safe in insisting upon this and shall advise my noble friends to do so.
Baroness Wootton of Abinger: My noble friends are very persuasive but I wish they would give some grounds for providing the GLC with special protection which is not enforceable in respect of all other local authorities. The Bill as it stands puts the GLC on exactly the same footing as comparable local authorities throughout the country. I believe some defence is necessary for providing special protection, particularly from those of us who are very anxious to maintain freedom and independence in all aspects of local government.
Lord Bedeliffe-Maud: May I first declare my interest, as an old and senile person who benefits from the card in my breast pocket. It seems to me that there is one very strong argument against this amendment. I am sure all of us wish that there should be no further curtailment of the freedom of local authorities to make up their minds for themselves in the light of the electors in each local authority's area. I do not wish to develop the argument about fiduciary duty, but I personally believe that the fiduciary duty in this case is not only to people like myself, who are senile and incapacitated; not only to the ratepayers; but to all the citizens of, in this case, the Greater London area. That fiduciary trust is something that has to be weighed in the balance—in giving something outside what the law already provides to the Greater London Council—in giving freedom to Birmingham, Tyneside and the other transport authorities to interpret and balance the wishes of their citizens, whether incapacitated or wealthy, whether ratepayers or persons who do not have to pay rates (and as we all know, large numbers of people in each of our areas do not), and to take a decision in the light of what they think is an interpretation of the word "reasonable".
I entirely agree that the word "reasonable" has a shocking, although to my mind, splendid history, in that it changes and develops its meaning. How right we are, and what a matter for rejoicing it is, that if this debate had been taking place in the 1930s, we would not be operating in the same sort of context as we are today. In these circumstances I personally, as an independent Member of this House, will on this occasion give the Government the benefit of the doubt and vote for them and against the amendment.
Lord Tordoff: I also will advise my colleagues to vote for the amendment. In a sense, the speech we have just heard underlines the point. The problem is that "reasonable" may yet again be reinterpreted if these matters were to go before the Law Lords once again. As the noble Lord, Lord Mishcon, has said, what we need above all at this stage, for the GLC on transport matters, is clarity; otherwise we shall find ourselves going around the same bit of track in a few months' time, with the Government getting up again and saying, "Really, the GLC ought to suck it and see". I believe that that is not acceptable. Although I have problems with the instructions to the Greater London Council from your Lordships' House, I do not see any other way around this problem now that it has got to this stage.
To put the GLC in exactly the same position as other local authorities does not answer the problem because, in a sense, they do not know what position they are in
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in the event of a challenge. As the noble Lord the Minister has said, there has not been a challenge, but someone whose reasons might be unknown to us may wish to make that challenge at some stage in the future. It is time that Parliament made its intentions clear on this matter. Although I have some reservations about the wording of the amendment and believe that there might be some difficulty about inserting this new clause, which refers to an amendment which has been withdrawn—and doubtless someone will advise us on that point—nevertheless, I believe that this is the only way in which this House can make its view clear.
Lord Bellwin: Perhaps I might quickly add a final word. The noble Lord, Lord Underhill, said that he wants to ensure that these arrangements are not made subject to challenge in the courts. But the Bill cannot spell out the details of the concessions operated by the GLC, and it would be wrong to try to do so. What the amendment would do is to say that any arrangements would be immune from challenge. Clearly, that must be wrong. The GLC has the power to take ratepayers' money, and it has a duty to ensure that that money is dealt with responsibly. In my submission, the GLC should not be exempted from that duty, however worthy the nature of the cause.
Lord Underhill: I hope your Lordships will put on one side the general position of the fares policy of the GLC; that is not what we are discussing today in this amendment. It has been said that to do this would mean applying this condition to Greater London only. We had considered the possibility of amendments to the Bill, but we are constrained because the Bill is drawn up to provide only for Greater London and only to deal with concessions for the disabled and elderly. It should not be assumed that other local authorities are not perturbed. Your Lordships will be aware that there has already been a Merseyside case on their general fares scheme. That was only a decision in the first instance, as my noble friend Lord Mishcon said; the original decision in Greater London in the first instance was in favour of the Greater London Council. I am certain the noble Lord, Lord Bellwin, would agree that other local authorities are concerned about the operation of the whole question of fares grants as a result of the judgment.
The noble Lord said there is no need for concern and, in practice, it is so remote. It is because it is only so remote—in other words, it could be nearer—that this amendment is so important. I hope the Committee will support it. I am grateful to the noble Lords, Lord Tordoff and Lord Donaldson, for agreeing and being ready to support this amendment. The noble Lord, Lord Bellwin, said that this would give carte blanche for any powers. We are dealing only with concessionary fares for the disabled and the elderly. I hope noble Lords will concentrate on that position alone. No noble Lord, I am sure, would wish to see these concessionary fares for the elderly and disabled challenged, but without this amendment someone could challenge them; someone could say that this particular group is having a benefit that they should not have, having regard to the duty to the other ratepayers. Therefore, it is a matter of great principle, and in the interests of

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the disabled and the elderly we must press this amendment to a Division.
Lord Tordoff: Before the noble Lord sits down, could I revert to the point I made at the end of my remarks. The wording of the noble Lord's amendment refers to "the exercise of the duty imposed…by Section 1 of this Act", but by the withdrawal of his earlier amendment there is no reference to duty in Section 1 of the Act as it stands unamended.
Lord Underhill: This is a matter I am certain we can deal with at a subsequent stage. I think we should get the view of the Committee on what is the vital principle at stake in this amendment.
4.13 p.m.
On Question, Whether the said amendment (No. 2) shall be agreed to?
Their Lordships divided: Contents, 60; Not-Contents, 112.

DIVISION NO. 1

CONTENTS

Airedale, L.

Jenkins of Putney, L.

Amherst, E.

John-Mackie, L.

Ardwick, L.

Kennet, L.

Aylestone, L.

Kilmarnock, L.

Bacon, B.

Leatherland, L.

Banks, L.

Listowel, E.

Beaumont of Whitley, L.

Llewelyn-Davies of

Birk, B.

Hastoe, B.

Blyton, L.

Longford, E.

Boston of Faversham, L.

McGregor of Durris, L.

Brockway, L.

Maybray-King, L.

Bruce of Donington, L.

Mishcon, L.

Byers, L.

Moyne, L.

Collison, L.

Paget of Northampton, L.

Cooper of Stockton Heath, L.

Peart, L.

David, B. [Teller]

Phillips, B.

Davies of Leek, L.

Plant, L.

Davies of Penrhys, L.

Ponsonby of Shulbrede, L.

Denington, B.

[Teller]

Donaldson of Kingsbridge, L.

Stedman, B.

Elwyn-Jones, L.

Stewart of Fulham, L.

Evans of Claughton, L.

Stone, L.

Fisher of Rednal, B.

Strabolgi, L.

Gaitskell, B.

Taylor of Mansfield, L.

Greenwood of Rossendale, L.

Tordoff, L.

Grey, E.

Underhill, L.

Hampton, L.

Wallace of Coslany, L.

Hanworth, V.

White, B.

Houghton of Sowerby, L.

Wigoder, L.

Jacques, L.

Willis, L.

Jeger, B.

Wynne-Jones, L.

NOT-CONTENTS

Adeane, L.

Coleraine, L.

Airey of Abingdon, B.

Constantine of Stanmore, L.

Alexander of Tunis, E.

Cork and Orrery, E.

Allen of Abbeydale, L.

Cottesloe, L.

Alport, L.

Croft, L.

Ampthill, L.

Cullen of Ashbourne, L.

Avon, E.

Daventry, V.

Belhaven and Stenton, L.

De Freyne, L.

Bellwin, L.

Denham, L. [Teller]

Beloff, L.

Dilhorne, V.

Belstead, L.

Donegall, M.

Bessborough, E.

Drumalbyn, L.

Cockfield, L.

Dundee, E.

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Ebbisham, L.

Mersey, V.

Edmund-Davies, L.

Milverton, L.

Effingham, E.

Minto, E.

Eldon, E.

Montgomery of Alamein, V.

Ellenborough, L.

Morris, L.

Elles, B.

Mottistone, L.

Elliot of Harwood, B.

Mowbray and Stourton, L.

Elphinstone, L.

Murton of Lindisfarne, L.

Elton, L.

Newall, L.

Fraser of Kilmorack, L.

Northchurch, B.

Gainford, L.

Nugent of Guildford, L.

Gainsborough, E.

Orkney, E.

Glanusk, L.

Portland, D.

Glenkinglas, L.

Rankeillour, L.

Gormanston, V.

Rawlinson of Ewell, L.

Gridley, L.

Redcliffe-Maud, L.

Hailsham of

Reigate, L.

Saint Marylebone, L.

Reilly, L.

Harmar-Nicholls, L.

Renton, L.

Harvington, L.

Richardson, L.

Hatherton, E.

Ridley, V.

Hawke, L.

Robbins, L.

Henley, L.

Romney, E.

Holderness, L.

St. Davids, V.

Home of the Hirsel, L.

St. Just, L.

Hylton-Foster, B.

Sandford, L.

Ilchester, E.

Sandys, L. [Teller]

Inglewood, L.

Selbourne, E.

Killearn, L.

Sempill, Ly.

Kilmany, L.

Shannon, E.

Kimberley, E.

Soames, L.

Kinloss, Ly.

Somers, L.

Kinnoull, E.

Spens, L.

Lane-Fox, B.

Stamp, L.

Lauderdale, E.

Strathspey, L.

Linlithgow, M.

Sudeley, L.

Long, V.

Swinfen, L.

Loudoun, C.

Thomas of Swynnerton, L.

Lucas of Chilworth, L.

Tranmire, L.

Lyell, L.

Trumpington, B.

Macleod of Borve, B.

Vaux of Harrowden, L.

Mancroft, L.

Wilberforce, L.

Mansfield, E.

Wynford, L.

Marley, L.

Resolved in the negative, and amendment disagreed to accordingly.
Remaining clause agreed to.
House resumed: Bill reported without amendment.

Local Government (Miscellaneous Provisions) Bill
4.21 p.m.
Lord Belstead: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, that the House do now again resolve itself into Committee.—(Lord Belstead.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
Schedule 3 [Sex establishments]:
Earl Grey Earl Grey moved Amendment No. 25:
Page 56, line 5, leave out from ("names") to end of line 6 and insert ("of directors or other persons responsible for its management, and the address to which communication to these persons shall be delivered").
The noble Earl said: I beg to move Amendment No. 25. In moving this amendment I am also declaring an interest as a director of and consultant to a company affected by this schedule to the Bill. The reason for moving the amendment is that objectors are legally protected under Paragraph 9(11) on page 56 whereas the directors have no protection. By allowing their private addresses to be revealed to the local authority there is no restriction allowed in the Bill to prevent that local authority from publicly publishing that information. I beg to move.
Lord Belstead: I am grateful to the noble Earl, Lord Grey, for his explanation of the purpose of the amendment. But I do not think that there are any grounds for believing that the requirement in paragraph 9(3) of Schedule 3, that an application should give the private addresses of the directors of the company concerned, will encourage anything untoward so far as that is concerned. What I mean by that is the following. I think that local authorities will act responsibly and will not make public those private addresses which have been given to them, when there is no need under the schedule to do so. I would point out also that this information will not have to be given in the public notice which an applicant is required to give under paragraph 9(7) of the schedule. I understand from the Metropolitan Police that it is important that private addresses should be given because the police must be able to consider properly whether they should submit observations on the grounds for refusal relating to the suitability of an applicant or those on whose behalf the business would be managed. Therefore, while I understand why the noble Earl has put the amendment before the Committee, I do not think that there is any reason to have any apprehensions that these addresses will be made unnecessarily public and I think that the provision in the Bill to this effect is necessary.
Earl Grey: I thank the noble Minister for what he has said. I shall withdraw the amendment and I may possibly refer to it again at the Report stage. In the meantime, I ask the noble Lord whether he would give an assurance that what he has said regarding the addresses will be given a great deal of consideration. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4.25 p.m.
Lord Jacques Lord Jacques moved Amendment No. 26:
Page 58, line 10, after ("that") insert ("a sex establishment in the relevant locality is inappropriate or that").
The noble Lord said: I beg to move Amendment No. 26. This amendment is an alternative to Amendment No. 31. Both amendments seek to make it clear that a local authority can determine that no sex establishment is appropriate to a given locality. I commend the present amendment to the Committee on the grounds that it is a more elegant draft. I beg to move.
Lord Belstead: It is, indeed, the case that this amendment and the Government's Amendment No. 31 are
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both aimed at precisely the same objective—that is, to make it clear that a licensing authority may form the opinion, on considering an application, that there should be no sex establishments in the locality to which the application relates, and that the application may be refused on that ground.
The noble Lord has said that his amendment is a more elegant draft and I would not wish to contradict the noble Lord in that regard. However, I do think that the noble Lord's amendment has one or two drawbacks. First, it is defective in that it does not cater for the circumstances where there is no existing sex establishment; and the word "is" should really read "would be". But that is a small matter and, of course, it could be put right if the Committee agreed to the noble Lord's amendment which we are now considering.
But, more seriously, the noble Lord's amendment also puts the proposition the wrong way round and gives less certainty in its effect, in that this amendment focuses on "a" sex establishment which, in the context, might mean that it would be inappropriate to have that particular sex establishment in the relevant locality, and not necessarily—as is intended by the Government—that it would be inappropriate in relation to the relevant locality to have any sex establishments there at all. I believe, too, that the Government's amendment emphasises more clearly the obligation on a licensing authority to address itself to the question: What would be the appropriate number of sex establishments in this locality? Finally, I think that there are presentational advantages in an explicit reference to "nil" or to some similar term.
However, I am in the hands of the Committee on this matter. If your Lordships would prefer to tackle the matter through the amendment of the noble Lord, Lord Jacques, then I shall gladly give an undertaking to bring forward a suitable amendment on Report—because, as I have indicated, I think that the noble Lord's amendment would need a little overhaul—but in line with the effect of the noble Lord's amendment. Otherwise, I would ask your Lordships to agree to Amendment No. 31, when we reach it, because I am sure that the noble Lord and the Government are certainly in agreement that one of the two amendments is needed to be written into the Bill.
Lord Mishcon: From these Benches I wonder if I may beg to differ with my noble friend Lord Jacques—a procedure to which I am unaccustomed and to which I hope to be unaccustomed in the future. However, if my noble friend's phraseology were used—if I may be allowed to add to the arguments of the noble Lord the Minister—I think that the local authority's decision could be challenged on the ground that the wording of the Act reads that it is inappropriate to have a sex establishment in the area. To have that finding, by a responsible local authority acting in a quasi-judicial capacity, may well necessitate the hearing of evidence, the hearing of the local residents and so on, as to whether it is considered to be appropriate or inappropriate. I should have thought that that is the last thing that the local authority would want to have by way of a responsibility. The simple wording of the Bill, which I think achieves the object, is that the local authority has the right to say "Nil, in our area" and,

417
whether or not the local authority regards that as being the end of the matter, it will be the end of the matter. On the other hand, any alternative wording might well mean that the local authority, in the interests of natural justice or whatever, is under a duty to inquire much deeper into the whole question.
Baroness Birk: What we have not yet established and what I think is still a very confusing situation is what, in fact, is meant by "relevant locality". When we ended the first day of the Committee stage last Thursday, we were still very much in the air. The noble Earl, Lord Halsbury, and other noble Lords and Baronesses, including myself, had tried to get a definition of "relevant locality It makes a tremendous difference—certainly to me—if "relevant locality" means a district or an area within the whole local authority area, or whether it means the whole local authority area itself. I think that it will be extremely difficult for us to reach a decision, either on my noble friend's amendment or on the Government's amendment, until we have a very clear definition of "relevant locality".
Lord Sandford: I think it would be very helpful if my noble friend could respond to that point at this stage, if he has had sufficient opportunity over the weekend to reflect upon it. I do not think that we need an amendment on this point at this stage. I think that it would be better for all of us to reflect a little further before that. However, it would be helpful to know the position.
In that connection, perhaps I could give the Committee the benefit of consultations that I had on Friday with district councils from five counties, which were assembled not to discuss sex shops but something else. I took the opportunity to ask them about this. I think that we must consider a great many different situations. However, there are perhaps two main groups of district councils. Some of them will want to take a firm and robust approach—such as the noble Lord, Lord Mishcon, has just described—and to set it out with the very first application; namely, that one sex shop is too many in the whole of its area. On the other hand, I think that there will be other authorities which do not want to take quite such a robust view on their own shoulders, but which want to he able to respond clearly, effectively and without a great deal of fuss according to the reaction that they get from their electorate in respect of each particular application.
Therefore, we have two different categories with which to deal. But I think it would be helpful to have, on the face of the Bill, the possibility in respect of area such as we have in respect of numbers at Amendment No. 31; that is, that an authority which wants to take the view that it does not want any sex shops in its whole area, is allowed to do so. I appreciate that there are arguments against making that the main and only possible response. There will be other authorities which will want to define in each particular case the area to which their response applies. However, I think that it would be very useful if my noble friend could respond to the noble Baroness, Lady Birk.
Lord Evans of Claughton: Briefly, I should like to add my support to the plea which the noble Baroness, Lady Birk, and the noble Lord, Lord Sandford, have
418
made. Up to now I have not intervened in the debates on sex shops, but a very important distinction ought to be made clear here. Quite apart from the reasons given previously, there are enormous differences in the sizes of some local authorities.
If one says that the local authority is the locality, that might conceivably be appropriate for a small district council of the type which is a member of the association of which the noble Lord, Lord Sandford, is president; but it might be totally inappropriate for the locality to be the description of a local authority in a metropolitan area, which are very large indeed. So for all the reasons given, I think that we should have some guidance from the noble Lord the Minister.
Lord Nugent of Guildford: Before my noble friend rises to give us that which will he helpful and I suspect that I know the lines upon which it will go—I should like to sympathise with the noble Lord, Lord Jacques in the elegance of his amendment, because I think that the Government amendment, No. 31, is a clumsy piece of drafting. On the other hand, it is the specific. I must say that I agree with the noble Lord, Lord Mishcon, although not having his great legal knowledge: it strikes me as the much more certain machinery for achieving what I believe many district councils will wish to achieve. But, of course, on the merits of this debate as a whole, "locality" is a vital factor, and we all wait with bated breath to hear what my noble friend has to say, and hope that he can now clarify the situation, which has become progressively more obscure.
Lord Houghton of Sowerby: I think that it is very difficult indeed for us to proceed very much further in Committee on this Bill until we know what it is we are really doing. I know that the Minister finds it highly diverting that he does not know the difference between a locality and an area, but before very long he will have to make up his mind which it is.
We have all been thinking over the extraordinary performance that we had last week on this very matter but we wish to be more precise as to that for which we are legislating. Are we distinguishing in any way at all between a locality and an area? If we are, let us know what is the distinction. If a locality is the area of local government, that can be a very large area indeed. I doubt whether any court of law would regard as a locality the area, for example, of a metropolitan district council, such as the one with which I was connected when I was a member of Parliament, where previously there were six separate local authorities—one borough council, four urban districts and one rural district. They now comprise a metropolitan borough council along with, previously, a county borough and another local borough. Is that a locality or is that an area? Under this Bill, is it envisaged that a metropolitan district council can say "Nil is our figure for our area, and that is our locality"? Is that conceivable? Can that stand up to any reasonable interpretation of the words?
I think that the Minister must tell us clearly what it is we are doing. It makes it difficult for us to accept, either the amendment of my noble friend Lord Jacques, or the amendment which will perhaps subsequently be moved by the Minister, Amendment No. 31. If I may say so, it all reflects upon the indecent haste with

419
which Government rushed into this kind of legislation. I am told that complications and difficulties can ensure or that, alternatively, injustices can ensure. We are not an authoritarian state; we are not a clerical state; we are not a community which is imposing its prejudices or its religious beliefs on people or its concept of what is good or bad for them. We are trying to deal fairly with a whole community, with different points of view and different demands in it.
I think that the bias with which may noble Lords approach this Bill is quite deplorable. I think that we must try to hold the balance fairly and squarely between those who want to satisfy a particular demand in the community, whether or not we meet it, and those who object to this kind of trade. However, it really is quite astonishing that we should be dealing with these important matters without knowing the tools that we are to use for the administration of this Bill.
Viscount Ridley: I did not intervene in last week's debate on this subject because there were so many experts present that I did not think it was necessary. I should like to ask the Minister an important question before he replies. I think the noble Lord, Lord Evans, put it correctly. Some of these areas could be very large indeed. The whole of Liverpool could be deprived of the benefit of a sex shop, for instance, if that is so. Does this not mean if we took that attitude, or his answer is that way, that there is a grave danger of these highly lucrative places being driven underground, or becoming clandestine and generally much less satisfactory, and, secondly, of these being driven across a border into a neighbouring, shall we say, more tolerant, authority?
4.41 p.m.
Lord Belstead: May I first pick up the point made by the noble Lord, Lord Mishcon? I was grateful to the noble Lord for making the criticism he did of Lord Jacques' amendment. I think that the noble Lord, Lord Mishcon, and I agree with the noble Lord, Lord Nugent, that Lord Jacques' amendment almost certainly is the more elegant of the two if one compares Amendments No. 26 and 31. There is the difficulty, which it is worth repeating to get it on the record, that it is arguable that the noble Lord's amendment puts the proposition the wrong way round. Focusing on a sex establishment in this context might mean that it would be inappropriate to have that particular establishment in the relevant locality and not necessarily, as is intended, that it would be inappropriate in relation to the relevant locality to have any sex establishments there at all. As I understood it, that was what the noble Lord, Lord Mishcon, meant by saying that the Government's amendment is the more robust.
I am in the hands of the Committee on this point. If, in a few minutes' time when the noble Lord, Lord Jacques, decides what he wishes to do with Amendment No. 26, your Lordships feel that you would prefer to go down the road of Amendment No. 26, all I would ask is that perhaps it might be for the moment withdrawn, and then the Government would try to come forward with a version that I think needs just a little polishing. I think that Amendment No. 31 has a substantive advantage over Amendment No. 26.
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Having said that, may I try to reply to your Lordships who have asked me to define the term "relevant locality"? I fear that my attempts to answer the questions that were put to me on this point the last time we were in Committee perhaps did not throw as much light on the matter as I would have wished. It would be proper first to consider the purpose and intention of paragraph 11(3)(c) of Schedule 3. The thinking behind this provision is that a local authority, on considering an application, should be able to take a view on what would be the appropriate number of sex establishments in the particular locality to which the application relates.
This is clearly distinct from the proposition which was embodied in the earlier amendment tabled by my noble friend Lord Nugent and the noble Earl, Lord Halsbury, that a local authority should be able to take a decision for the whole of its area whether to have any sex establishments or not. Paragraphs 11(3)(c) and indeed (d)(i) and (ii) enable a local authority to focus attention on the areas surrounding the premises and to consider whether, for example, by reference to its residential character it would be appropriate, or inappropriate, to have any sex establishments in that locality at all.
The word "locality" is not unknown in legislation of this kind. It is employed in a very similar fashion in Schedule 1 to the Betting, Gaming and Lotteries Act 1963 in connection with the licensing of betting offices. Nor do I think that the word is particularly difficult to interpret. If one considers any large district or borough, I do not think it would usually be at all difficult for those concerned to identify particular parts which take on a certain local character.
I suggest though that perhaps the most helpful way of looking at this is to think in terms of the area which, when considered sensibly as a whole, could be said to be affected by the presence of a sex establishment in it. The local authority will of course have to take a reasonable view of the matter. If it did not, as I understand it, its decision would be open to question on judicial review. Although, therefore, as I indicated in answer to my noble friend Lord Swinfen, it would be possible in theory for a district or borough council to take the view that the whole of its area should be regarded as the relevant locality, I think it is most unlikely that it could reasonably do so. I ought to have said that on the previous occasion and I must apologise to your Lordships that I did not add that.
Equally, if I may take up a point raised by the noble Earl, Lord Halsbury, I should be surprised if any local authority took the view that the "relevant locality" meant just the ground plan of the establishment and nothing more. Plainly that would not be in the spirit of the meaning of the word "locality". I am most anxious to point out that the suggestion which has been made that the term "relevant locality" should be replaced by the "local authority area" could be unsatisfactory for a number of reasons, particularly in the case of a large local authority area. It would then be much harder for the local authority to maintain that it would be inappropriate to have a sex establishment anywhere in the whole of the area. At any rate, it would be open to endless argument, and of course to the test of judicial review.

421
It would also have the undesirable effect of limiting consideration to the particular local authority area in which the premises were going to be situated. "Relevant locality" in an appropriate case could include part of another local authority's area. There would be considerable resentment if an application for the establishment of a sex shop in a somewhat unattractive and depopulated road on the boundary of a district council could not be reviewed on account of the character of a neighbouring residential area because that neighbouring residential area was in the next district council area.
In short, it would be difficult to devise a term which could convey precisely the sense which "locality" is intended to convey. Certainly it would be far less satisfactory to invent some artificial formula, such as the area within a radius of a quarter of a mile from the premises in question. The present term enables a local authority to take a sensible view of what part of the surrounding area should be considered in the context of a particular application. I do not believe that local authorities will find this difficult to operate in practice, and it will leave them with the flexibility which in this particular sort of licensing they ought to have.
The Earl of Longford: May I ask the noble Lord a question for clarification? I am rather depressed by his answer, which seems to leave those who dislike these sex shops in a rather less hopeful position than they were, but I want to be sure that that is so. Does the noble Lord say that it is very unlikely that under these provisions a local authority would be able to say that there should be no sex shops in its area? Is the noble Lord saying that?
Lord Sandford: May I just reinforce—
The Earl of Longford: Can the noble Lord just answer the question, because I should like an answer to this?
Lord Belstead: May I repeat the words that I spoke just now. I said that, although as I indicated in answer last time to my noble friend Lord Swinfen it would be possible in theory for a district or borough council to take the view that the whole of its area should be regarded as the relevant locality, I thought it most unlikely that it could reasonably do so. The reasons why it was most unlikely that it could reasonably do so I deployed in the statement that I have just made. But of course this would ultimately be a matter for the courts to decide.
The Earl of Halsbury: The noble Lord has just said that the argument would be a matter for the courts, but has he forgotten his own amendment, No. 39, which explicitely says it will not be before the courts because there will be no right to appeal?
Lord Belstead: I have not forgotten the Government amendment, No. 39. I do not speak as a lawyer, but I speak having been briefed that of course these decisions by local authorities would always be subject to judicial review.
Lord Sandford: Personally I think that that explanation is helpful. Many district councils will be glad to be left the discretion to define for themselves the locality to which their decision refers. On the other hand, I would put it to the Committee that there are a number of small districts—districts in rural areas—which in deciding an application may be taking a decision in respect of a population a fraction the size of that of a Metropolitan area or some of the larger districts. In those areas it may not be so unreasonable or inappropriate to take the view that their definition of "locality" is the totality of their area.
If my noble friend accepts that point—I fully accept the value of what he was saying about the need for local authorities to take a decision which, so far as possible, avoids judicial review—may I ask if he would consider, not now but between now and the next stage, the possibility of inserting somewhere in this part of the Bill a phrase in respect of the possibility of "locality" being defined as the whole of the area, which corresponds broadly to the terms of Amendment No. 31? If he would be kind enough to assure me that he would consider the point, I should be well satisfied with his explanation so far.
Lord Belstead: I shall of course consider what my noble friend has put to me, but I must consider it in the context of what I have said today.
Baroness Birk: I thank the Minister for the explanation he gave. While it clarified the point to a certain extent, it did not clarify it sufficiently. He said it was possible in theory to take the whole area as the relevant authority, and he did not think authorities would do that. As we know, the legal representatives of authorities cannot refer to Hansard; they must go by the legislation, and as my noble friend Lord Longford rightly pointed out, a right of appeal exists but the provisions which will be most relevant to what we are discussing have been taken away. Judical review is a slow, cumbersome and not very satisfactory process and, like a number of others, I believe that unless the point is spelt out more specifically than is at present the case, it will still be open to a quite large authority to treat itself as a relevant locality.
A number of people feel that, despite their views on sex shops, it is wrong to deny people in a large locality the chance of access to something which is completely legal. The Minister does not seem to have grasped that sufficiently and there still seems to be a certain amount of evasion, as it were, on the point. If the Minister wishes to reconsider the matter between now and Report, that would be a different matter, but the provision is not satisfactory as drafted. If he would say that "relevant" locality did not mean the whole of the local authority area, the position would be plain. In the cases cited by the noble Lord, Lord Sandford—say, a small area, district or village—it seems that that could almost be a relevant locality because it would be quite a small area and all the reasons that could be used against sex shops in a small locality in a bigger area could be deployed. At present the Minister seems to be trying to get the best of all worlds to the point where we do not know where we are.
The Earl of Halsbury: Is it not the case that we have all reserved our positions on this for Report? We seem to be rather going round in circles now. The Minister has promised conversations between now and Report, if I remember his remarks when we met last week, and I suggest that if the noble Lord, Lord Jacques, were now prepared to take a certain course of action, we might proceed to the next amendment.
Lord Jacques: As a layman, I wish to comment on the phrase "relevant locality". We now have bigger district councils and in practically all cases the district would have to be divided up so as to be reasonable in relation to the definition in the schedule. But even when it has been divided up, according to the character of each separate locality, the local authority could decide to say, "Nil, nil, nil" for each one, which would have the same effect as putting them all together and saying "Nil" once. Frankly, therefore, I do not think the Minister has much to look at; if I were him I should leave it where it is. Assuming that we get Amendment No. 39 later—I am assuming that we shall get both Amendments Nos. 31 and 39—then, so far as I am concerned, we shall have got the substance, and having got the substance I shall not argue about drafting. I am happy to leave that to the Government, having ventilated my point of view and, in the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4.56 p.m.
Lord Houghton of Sowerby Lord Houghton of Sowerby moved Amendment No. 27:
Page 58, line 10, after ("that") insert ("having regard to the demand for the time being in the locality for the facilities afforded by sex establishments of the type which are the subject of the application and to the number of such sex establishments for the time being available to meet that demand").
The noble Lord said: We hear a good deal about objections to sex shops. We have heard nothing so far about the demand for them. Why are sex shops where they are and why is it proposed to have more of them?
Noble Lords: Money.
Lord Houghton of Sowerby: The simple reason is that there is a demand for them, otherwise they would pack up. When local authorities are given the power to decide on licensing sex shops, are they to take into account any evidence that might be available about the demand for them? Or will they take a high moral line and say, "Nil, nil, nil", and that will be it? Is it local government if it is done that way? Is local government just one grand piece of idiocy, or does it have some sense of responsibility? I do not believe that any local authority worthy of being there will say, "Nil, nil, nil" without some regard to the locality and to what demand the shop might meet, and therefore I suggest there must be something in the Bill about demand.
The time is rapidly coming when you do not have to go to a sex shop at all; it will be brought to your home. I do not know whether noble Lords, in paying attention to social matters, read that eminently readable and useful magazine New Society. If so, they may
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have seen in an issue as recently as 18th February an article entitled, "The sex lady cometh". It is an account of the representative of a sex shop firm meeting with women on a local council estate and exhibiting their wares and giving an illustration of what they have to offer. It is all in the article and I need not read it out; one-and-a-half pages with a couple of pictures of the sex lady who cometh.
Are we, under this or another Bill, to license pedlars in instruments of sexual activity? Is that the next step in our progress towards the ideal state? I suggest we must have regard to what was said on London Radio some days ago and I quote from an excerpt from the text of the broadcast:
"If this Bill succeeds in closing sex shops it will not, because of continuing public demand, succeed in stopping the continued supply of the articles they sell".
That is obvious in a community in which people are at least free at present to peddle items that would otherwise be sold in sex shops. One must, therefore, consider this as an emerging problem in our society. It is no good bringing to bear the repressive instincts of the Victorian period or, indeed, indifference towards what is going on. This is not wholly a matter of exposing the young to sexual allurements and temptations. The matter is very closely connected with many marriages, and the fact that this kind of activity might now be growing on council estates is an indication that many married women wish to know more about what is offered from a service of this kind. So I think that it must be treated seriously.
Nowhere in the Bill is a local authority under any obligation to consider demand. There is the question of appropriateness to the locality, with a heavy bias towards inappropriateness in people's minds—all of that is in the Bill. But I suggest that we now should ask local authorities, in deciding what is appropriate, and what number of establishments is appropriate, to have some regard to what the shops are offering and to the need or desire that they might meet. I beg to move.
Lord Belstead: If the amendment of the noble Lord, Lord Houghton of Sowerby, were made, it would not I think be difficult for someone wishing to open a sex shop in a particular locality to say that there was some demand for the premises. That might be true, even w here there was already an establishment of this kind in the locality but it was not in as convenient a position as it might be. Of course, where a sex shop already existed on the coming into force of the licensing arrangements, it could no doubt be argued that its existence was evidence of demand and that accordingly, on that ground, the premises ought to be licensed.
A more general objection to the noble Lord's proposal lies in the difficulties which would confront a local authority in attempting to assess demand and the opportunities which would be afforded to those with an interest in doing so to canvass evidence of demand. On those grounds I think the amendment is extremely undesirable, and I hope that it will be rejected.
Lord Nugent of Guildford: I should like to add a point in order to comfort the noble Lord, Lord Houghton, who is obviously very anxious about the development of this business and feels that your Lordships

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are not looking ahead as you should. The schedule looks ahead further than he thinks. If the noble Lord looks at paragraph 2(1), he will see that there is a provision for a stall to be wheeled along into the council estate where the noble Lord wants it. So I must congratulate my noble friend Lord Belstead in looking ahead to this vision of the future which the noble Lord, Lord Houghton wishes to see. If a local authority approved of licensing, it is all here, and the noble Lord could have his wish.
The Lord Bishop of Norwich: I would judge that the Minister's answer has been of great encouragement within the Chamber and will be so in the country when it is learnt. Surely the Minister's phrase "highly undesirable" is about as convincing an opposition to the amendment as we could want. I should like to say to the noble Lord, Lord Houghton, that the word "demand" in the second line of his amendment refers to demand for facilities. But the noble Lord is sufficiently a man of the world, and has spoken so often on these matters—we listen to him with the greatest respect—to know that in fact the demand is very often by the very strong moneyed interests which are concerned to make money out of lust. For that reason I hope that we shall resist the amendment.
The Earl of Halsbury: In testing the validity of the argument to which we have listened, I suggest to the Members of the Committee that in their minds they make an amendment to it: delete the term "sex shop" throughout and substitute the word "brothel". Would the Committee regard it as a convincing argument?
Lord Houghton of Sowerby: In reply to the noble Lord, Lord Nugent of Guildford, I wish to make clear that I am not wishing to see anything. It is not my concern that there should be more sex shops or that what they sell should be taken into the home, or anything of that kind. I am not concerned with that. I have no interest whatsoever in this subject, except, as I conceive it, fair dealing with people, a sense of justice and a sense of freedom. That is what I am concerned with—and nothing else. Noble Lords will completely misunderstand my purpose if they think that what I am suggesting will happen is something that I wish to see; it is not so. From a personal point of view, I do not care tuppence whether or not there are any sex shops.
We are legislators. We are here in the public interest. We are here to do what we think is right and proper by the varied composition of the public interest that we serve. We are not here just to represent ourselves and to wallow in the confidence that we have in our constituents. We should try to look a little more objectively at the matter. I know that there are difficulties. Everything is so sensitive in regard to this subject. One cannot use the English language without sexual undertones and bias being brought to bear on the subject under discussion.
There was a time when one could not objectively discuss licensed premises. The temperance movement had such a strong bias against drink that it was impossible for public houses, the facilities they offered,
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and their licensing to be rationally considered by many members of the public. Do I not know it! I lived in the kind of situation where temperance was above everything else—sex was only a minor aspect of life—where the man was drunk and the home resources for the wife and children were being squandered on drink. That was the evil of society at that time. Yet the interests behind the brewing industry, alcoholic drinks, and service to the public triumphed over all the objections of the temperance movement, and local option was difficult to secure anywhere, except in Wales. Most noble Lords are old enough to remember all of that. So I want to make my position clear, because I shall have more to say, with great respect to your Lordships, on other aspects of the matter.
So far as this amendment is concerned, I do not wish to press on your Lordships something which I can see, congenitally speaking, you are unable to accept. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.9 p.m.
Lord Houghton of Sowerby Lord Houghton of Sowerby had given notice of his intention to move Amendment No. 28:
Page 58, line 10, after ("of") insert ("such").
The noble Lord said: This amendment relates to another amendment that I moved earlier, in another context. Following a statement by the noble Lord the Minister, I withdrew the earlier amendment. For the moment I shall not pursue the matter further, so this amendment is not moved.
[Amendment No. 28 not moved.]
Lord Nugent of Guildford Lord Nugent of Guildford had given notice of his intention to move Amendment No. 29:
Page 58, line 18, leave out ("or").
The noble Lord said: I do not propose to move the amendment, but, since the noble Baroness, Lady Birk, also has her name to it, I would not wish it to remain not moved if she wished to go ahead with it.
Baroness Birk: I fear that my name appeared on the amendment by error; my name was attached to the wrong amendment.
[Amendment No. 29 not moved.]
Lord Nugent of Guildford Lord Nugent of Guildford moved Amendment No. 30:
Page 58, line 20, at end insert—
("(iv) to substantial representations by residents or occupiers of premises in the relevant locality.").
The noble Lord said: I beg to move this amendment in order to say a word of explanation, because I believe that it is in fact not necessary. If noble Lords will look at paragraph 9 of this voluminous schedule, they will see that sub-paragraph (9), on page 56, provides that any person can make an objection to an application for the grant, renewal or transfer of a licence by giving notice in writing of his objection to the appropriate authority. Then, in sub-paragraph (12), it says:
"In considering any application for the grant, renewal or transfer of a licence the appropriate authority shall have regard to any observations submitted to them by the chief officer of police and any objections of which notice has been sent to them under sub-paragraph (9) above".
I therefore think that my point is covered, but, as I think other noble Lords will be interested in this point—it is an important one—I will move my amendment so that my noble friend can confirm that this somewhat convoluted explanation between the two sub-paragraphs is in fact as I have explained it. I therefore beg to move my amendment.
Lord Belstead: I really do think that this is covered, as my noble friend suggested in moving the amendment. Indeed, I would go so far as to say that I do not think there is the slightest reason to think that the views of residents will not be heard loud and clear when an application is made for the establishment of a sex shop. Applications will have to be given publicity; that is taken care of in paragraph 9(7) of Schedule 3. Specific provision is indeed made for the lodging of objections; and, of course, paragraph 9(12) of the schedule enjoins the licensing authority to have regard to any objections which it receives.
Furthermore, in considering the ground of objection, the fact that a substantial number of residents have objected to an application would certainly be a factor which the authority could take into account in considering under paragraph 11(3)(c) whether it would be appropriate to have any sex establishments in the relevant locality—or, if your Lordships agree to Amendment No. 31, none at all. So I think no one should be in any doubt about the influence which local opinion will play in the decision-making process. It involves people living locally, who will get proper notice. It involves, indeed, the police; and, of course, ultimately it involves the authority, which I am absolutely certain will take full account of local views.
Lord Sandford: I am grateful to the noble Lord for that explanation. It will be of some reassurance to us, but I am not sure it will be of much help to authorities seeking to operate this legislation, because subparagraphs (9) and (12) do no more than make it clear that a person wanting to object has to state his objection as there laid down, and that, in taking their decision, the local authority have to take that objection into account.
But, when we turn over to page 58 and read down sub-paragraph (3), there we do not see anything as clear as my noble friend's Amendment No. 30 to indicate that among the grounds for their refusal can be,
"substantial representations by residents or occupiers of premises in the relevant locality".
For that reason, that ground flows from sub-paragraphs (9) and (12) but it is not the same as sub-paragraphs (9) and (12).
Nor is it the same as the three particular reasons which the local authority can use for their rejection of an application for the grant or renewal of a licence. It is not the same as the character of the locality; it is not the same as the use to which the premises are put; nor is it the same as the layout, character or conditions. But I should have thought that, as compared with those, the views of the residents in the locality are probably the strongest grounds of all. I should like to see this particular amendment on the face of the Bill. I will not press the matter now if my noble friend wants
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to withdraw it, but I would ask my noble friend to look at it again.
Lord Belstead: I wonder whether I may say just one more word to the Committee. I will certainly look to see, as a result of what my noble friend Lord Sandford has said, whether there ought to be a reference back from paragraph 11(3)(d) to paragraph 9(9) and (12) to make it clear that the grounds include having regard to the objections which have been made. I will certainly look at that point, but I think it is important for me to add that, when my noble friend says that he would have liked to see this particular amendment written on to the face of the Bill, I really think there would be problems so far as that is concerned—problems which I did not deploy.
Very briefly, I think that the difficulty is that if this amendment were written in we should be in danger of playing a numbers game. By that, I mean that, in equity, representation in support of an application would possibly need to be written into the Bill to balance the objections if we started writing in this sort of amendment. As it is, we are taking great care to lay down criteria on which applications are to be judged. That is in paragraph 11; and I have given an undertaking that I will look at paragraph 11 to see whether some extra mention of objections should be made. But that must be the basis for considering the case for the application.
While, entirely properly, we are providing for objections to the application which will need to advance grounds for objection, and support for which will, I repeat, be a factor which the licensing authority must take into account in reaching a decision, I think it would be a very great pity if we started writing in provisions which almost certainly will be taken as an invitation for people to see who can collect the largest number of signatures. I do not think that that is the way the licensing authority will wish to work. It will wish to look at the grounds for the objections while, of course, taking into account the weight of the objections as well.
Lord Swinfen: I wonder whether my noble friend would let your Lordships know whether he is entirely satisfied that local residents should be advised only by notices in the newspapers. In the areas where sex shops are likely to be established, a large number of the residents are elderly, with poor eyesight. They are not always very well educated, and they will not look at that part of their local newspapers. They are not interested. Surely there should be some better way of advising them that there is the danger of a sex shop coming, so that they themselves know that they have an opportunity to make an objection.
Lord Nugent of Guildford: I must thank my noble friend Lord Belstead for his answer to my amendment and his confirmation that my interpretation of the schedule was correct. I do not altogether agree with my noble friend Lord Sandford in his wish to have the presentation different. I very much take the weight of the answer of my noble friend Lord Belstead, and I think it is best for the schedule to stay as it is. I therefore beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Lord Belstead Lord Belstead moved Amendment No. 31:
Page 58, line 20, at end insert—
("(4) Nil may be an appropriate number for the purposes of sub-paragraph (3)(c) above").
The noble Lord said: We have referred to this amendment on many occasions. The purpose and effect of it is to provide that the licensing authority may conclude that nil is the appropriate number of sex establishments for the relevant locality under paragraph 11(3)(c). I beg to move.
Lord Sandford: My Lords, I am grateful for this amendment. It fully meets the point that I made at Second Reading.
Lord Mishcon: Will the noble Lord the Minister care to reflect between Committee stage and Report stage upon his previous pronouncement (which disappointed some of us and encouraged others) namely, that it would be rather difficult for local authorities to declare "nil "for the number of sex shops within its area because of the dangers of a judicial review? A judicial review normally takes place when an authority has exercised its judgment without having gone. through a judicial process which it is deemed it ought to have gone through if one looks at a statute. In those circumstances, those of us who would like to see that the authority was not dragged through a judicial review would like to see words such as, "Nil may in the absolute discretion of the authority be an appropriate number for the purposes of sub-paragraph (3)(c)". I am making this intervention only in order that the Minister may consider that aspect before the Report stage.
Lord Evans of Claughton: I am not here to express views favouring a rash of sex shops in every district of the country, and I think that in many respects the line that the Government have taken in allowing decisions about the numbers and so on to be the decision of the local authority is a good one. But the fact is that none of us is seeking to legislate to say that sex shops shall be illegal. We are therefore possibly putting ourselves in a difficulty as far as natural justice is concerned if we say, on the one hand, in Amendment No. 31 that, "nil may be an appropriate number" and then later on, in Amendment No. 39, that there shall be no grounds for appeal against a decision with regard to these matters. One is saying that while sex shops shall not be illegal, we can, if we feel like it, make it impossible for there to be a licensed sex shop and that there is no right of appeal against such a decision. In spite of my distaste for these places, I feel that this would be contrary to natural justice.
5.23 p.m.
Lord Belstead: I will give thought to the words that the noble Lord, Lord Mishcon, has invited the Government to consider might be desirable to add to this amendment if the Committee agrees it. The only thing I think it will be helpful for me to say is that to exclude a judicial review, would be questionable in principle, and as far as my department knows it would be unprecedented in a matter of this sort. That is the advice I have received and I think it only helpful for me to impart it across the Floor of the Committee.
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I should like to look at what the noble Lord, Lord Mishcon, has said and perhaps the noble Lord will come back before this amendment is decided.
So far as the point made by the noble Lord, Lord Evans, is concerned, when we get to Amendment No. 39, that does not remove the grounds of appeal completely. It removes the ground of appeal on two of the four grounds on which the licensing authority (as paragraph 11(3) is drafted) will be able to consider and reject an application for a sex shop. There is some difference between that and the conclusion which the noble Lord was reaching.
Lord Mishcon: I am sure that the Committee would not wish to be detained by any argument where the noble Lord the Minister is courteous enough to say that he with his advisers will consider it. I did not suggest that words should be put in which exclude a judicial review, but words that would make it more difficult for a judicial review to succeed against the local authority. I said—and these are common words in statutes—that a local authority shall be shown to have an absolute discretion, and therefore it would be only where that absolute discretion is exercised fraudulently or grossly wrongly that the judicial review would succeed against the local authority.
The Earl of Halsbury: I am delighted to have the noble Lord, Lord Mishcon, with his wealth of legal experience supporting an argument which strengthens Amendment No. 31. Naturally, the noble Lord, Lord Nugent of Guildford, and I preferred the structure of our original amendment or we should not have put it down; but I think that it is important not to lose sight of why we are debating this matter. It is that up and down the country local authorities want power to say (in the words of an old wartime song which the older Members of the House will have sung many times: "Anywhere else you can do that there, but you can't do that there 'ere". That is what they want to be able to say. They have asked the Government to give them power to say it. The Government are dubious and the noble Lord is rather acting the part of Byron's heroine, who "vowing she would n'er consent, consented". We are slowly driving him along the path where he does not want to go and I feel he is uncertain in his mind as to whether he is imposing an embargo and trying to pretend that he is not, or not imposing an embargo and trying to pretend that he is. Between now and Report stage perhaps he will come closer to an alignment with what I would like to see. I do not believe we simplify the issue by raising the question of natural justice. There is no lack of natural justice to brothel keepers in saying that we will not legalise brothels in this country. Substitute "brothels" for "sex shop" and test the validity of the argument. Would you believe it in the context of brothel? Then why do you believe it in the context of a sex shop?
Baroness Birk: On an earlier amendment moved by my noble friend Lord Jacques we had a discussion on both amendments and it ended with the Minister undertaking to go back and look at the wording again and particularly at the relevant localities on which a number of us were still unhappy. I hope that what he has said now is going to allow him to go back and

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rethink without prejudice to what he said on the earlier amendment. He sounded more definite on this one, as to not looking back at it again, than when he was talking about the amendment moved by my noble friend Lord Jacques. Many of us felt that he was going to look at the wording to see whether it was in need of clarification.
I think the noble Earl, Lord Halsbury, when he makes the analogy between brothel and sex shop is not making a correct analogy. Brothels are illegal in this country; sex shops are not, so one is not comparing like with like. It would be a pity if this fogged the issue. This is not what we are discussing. We are not talking about licensing brothels but licences for sex shops, which are perfectly legal.
The Lord Bishop of Norwich: What the Minister said about providing the local authorities with an opportunity of a nil return will give great encouragement. If we leave that tack for a moment, on Amendment 11, when the more clear-cut amendments of the noble Earl and the noble Lord, Lord Nugent, were put, it was at that time the Minister first showed his hand in greatest warmth and willingness to accommodate the principle and, at the same time maintaining the delicacy of the problem of freedom. I hope that with a glad heart we shall support him in his amendment because the very words:
"Nil may be an appropriate number…".
are the sort of simple and clear-cut heading in the Daily Mirror which simple people like the Members of this Bench can understand.
As we are dealing with great detail, I hope that we shall give tremendous support to the Minister on Amendment No. 31, yet recognising, as the noble Baroness, Lady Birk, has said, that these shops are not illegal though there is a strong desire that they should be given as little encouragement as possible within our tradition of freedom in this country. Amendment No. 31, with Amendment No. 39, gives the main substance of what Amendment No. 11 was originally driving at. I hope that we shall support the Minister.
Lord Monson: I share the disquiet of the noble Lord, Lord Evans of Claughton, about Amendment No. 39. However, Amendment No. 31—which is its twin in a way—surely comes into a different category because it seems to me that the number "nil"—if that is not a contradiction in terms—is already implicit in the clause as it stands. Therefore this is no more than a clarifying amendment which it would be illogical to oppose.
Lord Houghton of Sowerby: I wish to support my noble friend Lady Birk. I thought that the Minister was going to take a more comprehensive look at what he had said about locality in relation to this and the subsequent amendment. We have heard for the first time this afternoon a very important and literal statement made by the Minister on the construction to be placed upon the word "locality". I found a good deal of what he said quite acceptable. If I may say so, it seemed to be the common sense of the matter. But in the Bill we have no guidance other than that the meaning of the word "locality" is that it
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means the locality of the premises in respect of which the application is being made, which is not really very enlightening. It could be regarded as a little more precise. Some people might think it was too precise.
It is very difficult for us to agree to nil being the number—if nil is a number. I hope that the noble Lord has consulted his right honourable friend the Minister for Education as to whether nil is a number. I thought it was nothing. I did not think that "nothing" was a number, but I do not want to quibble. The right reverend Prelate said a moment ago that he saw some advantage in importing Daily Mirror headlines into our legislation, or words to that effect: "Nil means nil, so what? It is over." I can understand that approach, but it is not always very helpful in legislation.
The serious point is that we are still bothered about locality. The trouble is that we are being bothered about it from two different sides and they have not yet been reconciled, I submit. There are some noble Lords who want "locality" to mean "area", and some—including myself—who do not want "locality" to mean "area", or to give power to decide on nil for an area if that area is far beyond any reasonable interpretation of the word "locality". I feel that the Minister is rushing into agreeing to "nil" when all we have to give us comfort on this—at least from my point of view—is a statement that he read out, which we have not yet seen in print, which is a ministerial opinion and is not necessarily a decision that would be supported by a court of law; yet here we are being asked to legislate in these conditions of uncertainty.
I conclude with a comment on what the noble Earl, Lord Halsbury, said about natural justice. There was a time when people were sent to prison for selling contraceptives. There was no natural justice then in relation to trying to put methods of control of fertility into the hands of the women of Britain. If noble Lords care to read the history of birth control, they will see what a sordid, squalid period it was. There are words being uttered now about no natural justice where you are concerned with dirt, obscenity and all the terrible things related to sexual activity. There was a time when the same attitude applied to matters which are now included in the National Health Service. Contraception is available in the National Health Service today. Contrast that with the position 50 or 60 years ago. I think that we want to be careful not to use derogatory terms about a situation when opinions may change later on. However, the main point is: is the Minister going to get us out of this difficulty and give himself a little more time at a later stage in the Bill to get it sorted out and for us to sort it out too?
The Earl of Longford: I venture to think that the great majority of Members of this Committee will be in favour of this amendment. I only hope that the Minister will not be discouraged by the fact that three or four rather fanatical opponents have done most of the speaking.
Lord Davies of Leek: I am not being fanatical, but I wonder whether the Government are sure of the twist into which they are getting themselves regarding

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the definition of "local" and "area". My noble friend Lord Houghton is absolutely right. I can remember as a youngster in South Wales when the English pubs over the border were open on a Sunday: miners for 15 miles around were trudging over the mountains to them. Consequently, the Bill will have no control whatsoever.
There is a serious point and I do not think that this Committee is discussing it with seriousness. Were the medical profession brought in to discuss this problem of sex shops and the appliances that they sell? Were the medical association ever brought in? Without sniggering with our hands to our mouths and being dirty minded, have we ever thought of this issue in terms of the paraplegics? Have we ever thought of the constructiveness that is brought into the lives of some people? Consequently, not being a medical man myself, but having discussed this with qualified medical people, I think that the Committee would have gained quite a lot of information if the Government had discussed this matter in depth with organisations that deal with the people who need this kind of attention.
Lord Nugent of Guildford: I should like to say a word in support of my noble friend's amendment which will enable local authorities to decide that the number is nil. I see that my noble friend and his department have given a great deal of thought to this aspect. The earlier charge from the noble Lord, Lord Houghton, that the Government were proceeding with indecent haste in this matter, is quite unjustified. The noble Lord will well know what a long time the department have taken in producing this particular provision. Nor do I think that the noble Lord's charge that some noble Lords show a deplorable lack of balance in their approach to the Bill is right. I do not know to whom he is referring, but no doubt he knows. On the whole, we shall do better if we take each other in good faith. Now, it being Lent, I shall give up the noble Lord, Lord Houghton, for Lent and I shall not attack him again.
Returning to the main point here, my noble friend Lord Halsbury made the point that if for "sex shops" one reads "brothels" one will not be far out. It is in that kind of context that many local authorities up and down the country see the advent of sex shops in their localities. That is why they are most anxious not to have them.
The noble Baroness, Lady Birk, is shaking her head. Of course, as always, she is right: they are not illegal, they are legal at present. Where the noble Baroness must take a point is that in their activities they are on the edge of illegality all the time. If she cared to walk round Soho, where there are some 100 sex shops now, I should think she would find in every one of them material which breaches the 1959 Act. She will find in about half of them cinemas, which are unlicensed, showing films which breach the 1959 Act so that the Act simply does not exist. She will also find activities which are clearly a front for prostitution. So the fact is that although the selling of sex appliances themselves is not illegal the concomitants that go with it bring a whole range of illegalities. This is the fact. There is an old saying, which the noble Lord, Lord Houghton, must know, that those who seek equity
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must come with clean hands—and, my word!, these sex shops do not. Nevertheless, we are not making them illegal by this and that is why the schedule is drawn up in the way it is. That is why I accepted the arguments put forward that our original amendment on Clause 2 should be dropped. A good point was made by the noble Lord, Lord Jenkins, that this could be outside the Long Title and unconstitutional. But the mechanics here are drawn in a different way—that the licensing shall operate and the local authorities shall have the option of taking what decision they think is right.
A good deal of the argument that is circulating around on sex shops does not take account of the reality—it really does not—and while we are not here concerned with that, we are concerned with sex shops that are properly conducted, and we hope that when they are licensed they will be properly conducted. But, my word!, a great many of them are not at present. In any event I am delighted that my noble friend is putting forward the amendment in this form. It will enable local authorities who do not want to have them to decide as the applications come up that they do not want them, and that will be in the interests of the localities. I am happy to support him.
Baroness Birk: I had not intended to speak again on this amendment but I really must, in view of what the noble Lord, Lord Nugent, has said. He seems to have forgotten, or not taken into account, what was originally in paragraph 25 of the schedule, which states:
"Nothing in this Schedule…shall afford a defence to a charge in respect of any offence at common law".
It then goes on to deal with the trial of such an offence. That has now been moved further up the schedule in order to make it quite clear that where any activity is subject to criminal proceedings, these will be undertaken. I think we should be clear, whatever our different views. This Bill should not be used as a way of getting round the public law aspects and, in fact, if there are illegal activities undertaken in some sex shops, they should be prosecuted for that under the relevant law. Surely the whole point of the licensing system proposed is that there should be control and that it should be easier to control activities which are outside the range of what sex shops are supppsed to be doing. I find it really quite unacceptable to say that we should do it this way because we believe that some sex shops are breaking other laws and therefore we will try and stop them from appearing for entirely different reasons. That cannot be the right way to go about it, and I should be very surprised if the Minister could support this because, in my opinion, this is quite the wrong approach to law and the wrong approach to this Bill.
Lord Jenkins of Putney: The noble Lord, Lord Nugent, has just referred to the fact that at an earlier stage I suggested that the whole of this discussion was outside the Title of the Bill. I think that is the case, but I have since understood that if we change the nature of the Bill by carrying this amendment the Title will be changed to meet what we have decided. That is a somewhat peculiar procedure, if I may say so, because by taking this action it would seem that one could change the Bill in almost any way and then

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at a later stage change the Title to fit what has been done. I find that a little odd. I share the unease which was mentioned by the noble Lord, Lord Evans, over this amendment. I would see nothing wrong in a local authority receiving application after application, and deciding that this application or that application was unsatisfactory or that a particular area should not contain a sex shop of any sort. Those, however, who know the area better—and I defer to the expertise of my noble friend Lord Longford on this matter—tell me that there are sex shops and sex shops, and that it would be reasonable for a local authority to decide that sex shop A is undesirable whereas sex shop B is inoffensive.
The Earl of Longford: Since the noble Lord has mentioned me, I would say that he was referring to the noble Baroness, Lady Ewart-Biggs, and not to myself, because it was the noble Baroness who made that distinction. It was no distinction of mine: so far as I am concerned they are all evil.
Lord Jenkins of Putney: That reassures me to some extent, because I always regard my noble friend as an extremist and he has confirmed once again that that is the right position for him to adopt. Therefore, it seems to me that while any authority would be entitled to say, "So far as we are concerned we will not accept in this area any kind of sex shop" or, "Our area is such that no sex shops are desirable in it", each application should be treated on its merits. It seems to me that what is proposed here is for a blanket decision to be allowed so that we would be enabling local authorities to usurp the powers which rightly rest in these two Chambers here. That is what we are trying to do, and while noble Lords on another issue will try to hamper and interfere with a local authority's activities, in this case they are trying to ensure that local authorities usurp the powers that ought to reside here. For this reason I regard this amendment and what has preceded it as wholly undesirable.
The Earl of Halsbury: The argument that we cannot do what we please because of the Title of the Bill is fallacious. The first Motion that we move in every Committee in this Chamber is that the Title of the Bill be postponed, and that then enfranchises discussion in the Committee in order that we shall not be inhibited by the Title from amending it at our pleasure. If the noble Lord, Lord Jenkins, will look at the penultimate amendment, on Page 37, he will see in the Title an amendment proposed by the noble Earl, Lord Grey, as follows:
"to make provision for the licensing of existing and future sex establishments".
Any argument based on the line the noble Lord is putting seems to me to be without effect at all.
Lord Belstead: I am interested that one of the things that this debate on the amendment has shown up is the difference of view between the noble Earl, Lord Halsbury—who earlier said he thought that I, as the Government spokesman for this Bill, was reluctant and was being dragged along in the direction which the noble Earl felt we ought to go—and the noble Lord, Lord Houghton, who accused me of pulling the Com
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mittee pell-mell down the hill far too fast, so that nobody has time to think and we are going to reach a destination we would not wish to arrive at.
It is just possible, not perhaps for the first time, that the Home Office is somewhere in the middle and taking the right speed and the right course. I am buttressed in that hope by the words spoken by the right reverend Prelate the Bishop of Norwich and also by the the noble Earl, Lord Longford, and my noble friend Lord Nugent, who in essence said they felt that this amendment was about right. The effect of it is that the licensing authority may conclude that "nil" is the appropriate number of sex establishments for a relevant locality under paragraph 11(3)(c), and I would now ask your Lordships to decide this Question.
On Question, amendment agreed to.
5.50 p.m.
Lord Houghton of Sowerby Lord Houghton of Sowerby moved Amendment No. 32:
Page 58, line 27, at end insert—
("Provided that no such term condition or restriction shall relate to articles for sale, hire, exchange, loan, display or demonstration or to the extent to which the business may consist of selling, hiring, exchanging, lending or demonstrating such articles.").
The noble Lord said: This amendment is in the same terms as an earlier amendment that I moved on the same question of the prescribing of conditions. I withdrew the earlier amendment, which related to another part of the schedule, because I thought I was satisfied with what the Minister had said. Your Lordships will find that in column 380 of the Official Report of the proceedings of 11th March.
But I have since been reading some notes on clauses which were sent to me, which seem to represent the Home Office point of view, and which throw a little more light on what is a sex shop and on the consequences of allowing a local authority absolute discretion in prescribing conditions. The Minister told us this afternoon that, in the case of a licence granted to a fully-fledged sex shop, a licensing authority would be held to be acting ultra vires if it tried to restrict the type of sex articles sold there. But where a licence is granted in respect of premises which may trade only in sex books and magazines, it might be possible for a licensing authority to grant a licence on condition that the relevant trade was restricted to such articles, in order to prevent the premises from turning into a fully-fledged sex shop. Similarly, if a licence is granted to a part-sex shop/part-newsagent, a licensing authority would be within its powers in attempting to maintain a balance between the two sides of the business.
A newsagent who has a magazine side to his shop and may, at the present time, be selling magazines and books which come within the provisions of the Indecent Displays Act, is conducting a perfectly lawful business and is not running a sex shop. But it now seems that a local authority, in deciding on nil, can put out of business a newsagent who already has a magazine business and who is complying with the law on indecent displays. Is this what we are up to? Is a local authority to be able to put people out of business, not because they are running a sex shop within the meaning of most of the things that your Lordships have been thinking about, but because they have premises in

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which girlie magazines and sex books of one kind or another are being sold, and have been sold for some time, on which the concealment of the Indecent Displays Act has been brought to bear?
Is this kind of shop, which at the present time is selling magazines and sex books of one kind or another and nothing else at all, a sex shop? Apparently, it is envisaged to be a sex shop and it therefore has to apply for a licence and may be told, "No. We have decided nil. You are out of business." This is an intolerable possibility as to how people may be treated. This is why I am very anxious about the right of the local authority to prescribe conditions in their absolute discretion. I feel that this is becoming a wretchedly unsatisfactory Bill, and I believe that we are legislating in a way which many people will regret later, if we do it in this slovenly way. I beg to move.
Lord Belstead: I am a little disappointed after giving a reply to the noble Lord, Lord Houghton, at column 380 of the Official Report for 11th March, on our first day in Committee. The noble Lord said.
"I am grateful to the noble Lord for his explanation. I think that I may be content with that, but I should like to consider it further".
That, of course, left the matter open for the noble Lord to come back. But I did not think that the noble Lord would come back with such a lot of steam and would take two entirely false points.
The two points are these. On the one hand, I said to the noble Lord that I thought it would be possible for a local authority to impose a condition prohibiting an establishment, which had been licensed as a sex shop, then to change its nature by branching out into other forms of trading and, in effect, to become something else. I also said it was the Government's view that, if a licensing authority issued a licence to premises on the basis that the establishment was partly a sex shop and partly something else, the licensing authority should be able to ensure that the premises were not immediately turned into a sex shop alone. To take those two points and to try to turn them into something else, something which is unfair and onerous is, if I may say so, to take two false points.
Lord Somers: May I ask the noble Lord, Lord Houghton, one question? He said that he considers it unfair to put out of business a man who is just selling magazines of a certain character. How about the man who sells pornographic material? Is it unfair to put him out of business?
Lord Houghton of Sowerby: I shall first deal with the Minister. My only complaint about the Minister is that he really did not read me the whole of his brief I was content with what he said, until I began to read further into the matter and found, to my astonishment that the definition of a "sex shop", which a local authority might decide needs a licence, can go very far down the scale of newsagents and booksellers. How far down the scale will this licensing system go?
We talk about a sex shop with all its sex stimulants, appliances and all the rest of the apparatus of which I know so little, though, apparently, other noble Lords know a great deal more. That is the concept of a sex
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shop, with the shutters up and with "Sex Shop" painted in gold letters on it. You go inside and a whole astonishing selection of tricks of the trade are open to inspection and sampling, if you wish. As I listened to noble Lords, that is our concept of a sex shop.
But, apparently, some sex shops may be newsagents with magazines. After all, the Indecent Displays Act was intended to remove certain types of publication from the casual inspection of young people and others who might be offended by them. Therefore, under the Indecent Displays Act we said "All this must go into a separate part of the shop and there must be a warning notice that young people under the age of 18 are not admitted." It was intended to enable people to go into the shop without embarrassment, and to enable young people to go into the shop without the temptation of picking up magazines that might have rather seductive covers to them. That is what we did under the Indecent Displays Act and, at the present time, there are shops which are complying with those requirements and which continue to do their lawful business. The sexual publications that they sell are shut away from immediate public access, because people must go into the part reserved for them.
Now I believe, from the description given in the paper that I hold in my hand, that that could be regarded as a sex shop and that it should therefore be within the discretion of the local authority to say "You are a sex shop. We will licence you, but only on condition that you do not sell anything different from what you are selling now". That is the idea. But the Minister did not disclose that in his statement.
In another case, there might be a shop which is wholly given to the selling of sexual magazines of one kind or another. When I am asked about pornography, I want to know what it is. After all, the word "pornography" has been used to denounce all kinds of things over the years, and people have been prosecuted and sent to prison for offences which were quite outrageous in the context of what they were alleged to have done. "Pornography is a term which has almost yet to be defined. What we said is, "Push it behind the screen, whatever it is, and let it be open to inspection only by grown-ups". Such a shop selling material of this kind can be regarded as a sex shop—not as a bookseller but as a sex shop. In those circumstances, a licence apparently could be granted to them on condition that they do not do any more. They do not become a fully fledged sex shop. These are fine distinctions on licensing. As my noble friend Lady Birk said a little while ago, when the licence has been refused, or if the licence has been granted under conditions, then to do other becomes a criminal offence with a right of entry, forcibly if necessary, to see whether the law is being observed.
This is what we are doing in order to cleanse the nation of its desire to know more about sexual activity. Stimulated by newspapers, television, magazines and all the rest, the pressures on young people are enormous in this particular respect, yet when it comes to the point we have this rather miserable attempt to restrict the activities of perfectly lawful enterprises. That is why I criticise the Minister. I am sorry if I appear to be ungrateful to him. I shall not press the amendment because the question of powers to levy conditions may have to be further considered before we part with

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the Bill. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Robertson of Oakridge Lord Robertson of Oakridge moved Amendment No. 33:
Page 58, line 37, leave out head (c).
The noble Lord said: I beg to move Amendment No. 33. With your Lordships' permission, I should like to speak to Amendments Nos. 34, 35 and 38. These amendments seek to establish a standard minimum age of 18 for admission to or employment in a sex establishment. As the Bill is now written, in paragraph 12(3)(c) local authorities have the discretion to set a minimum age and to decide what that minimum age should be.
The aim of these amendments is to bring Schedule 3 into line with the Indecent Displays Control Act 1981, which states that no person under the age of 18 may enter that part of a place where indecent material is on display. It is reasonable to suppose that most, if not all, sex establishments at least have the possibility of containing some material that could be deemed to be indecent. While of course any licensee of a sex shop could presumably be prosecuted under the Indecent Displays Control Act if he allowed somebody under the age of 18 to be admitted to a display of indecent material, it would surely be an anomaly if local authorities were to set a lower age limit for admission to a sex establishment in their area.
I do not think that there is any great feeling that the age of admission should be under 18. Indeed, believe it is the practice in most of these establishments, or similar establishments. Therefore it seems right to make 18 a standard age limit for admission to sex shops. Amendment No. 35 says that the conditions of the licence could not be varied in respect of this stipulation and Amendment No. 38 says that there would be no appeal against this stipulation. I beg to move.
Lord Evans of Claughton: I strongly support the amendments put down by the noble Lord, Lord Robertson of Oakridge. I should have thought that the Government could very readily accept them. They accepted amendments which are far more authoritarian, and even obscurantist, during our earlier Committee stage debate. Whatever one's views about sex shops, however liberal or illiberal one may be about the subject, nobody would want there to be any possible circumstances where children under the age of 18 could be involved, or seen, or employed, or have any part in them. I should have thought, therefore, that these amendments ought to be acceptable to the Government.
Lord Belstead: I should like to accept these amendments. All I would say is that the intention of the noble Lord, Lord Robertson of Oakridge, is incorporated in four different amendments and that I am advised that his intention might be achieved more concisely by making the matter the subject of a new offence. If the noble Lord would consent to withdraw the amendments, I would give an undertaking that we
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should bring forward an amendment, or offer to the noble Lord an amendment to move at Report stage which would have exactly the same effect as the noble Lord's intention but which would make the matter the subject of a new offence.
Lord Robertson of Oakridge: I thank the Minister for his reply. Of course I am only too glad to take his advice. On that condition, therefore, I beg leave to withdraw this amendment.
Amendment, by leave, withdrawn.
Lord Nugent of Guildford Lord Nugent of Guildford moved Amendment No. 33A:
Page 59, line 11, at end insert—
("(7) An appropriate Authority may make rules for regulating the conduct of hearings for the purposes of this Schedule.").
The noble Lord said: This is an amendment suggested by the London Boroughs Association and it follows the model in the Greater London Council's Bill. It is the same model as the council used in their code for licensing places of public entertainment: Schedule 12 to the London Government Act 1963. They have found that it is useful to the authority in dealing with applications for licences under these provisions. And it was thought that it would be of assistance to authorities administering the provisions in order that there could be some reasonable regulation of such things as length of hearings, rights or appearance, et cetera. It seems that it is a piece of mechanism which could be convenient and useful to everybody, for then they would know what the situation is. I beg to move.
Lord Belstead: It is of course already open to local authorities to make what arrangements they like for regulating their administrative processes. They do not need a formal rule-making power for this process; nor do they need such a power to enable them to publish and circulate whatever arrangements they have decided on. If my noble friend Lord Nugent of Guildford feels that this really would add a safeguard which would go beyond what I have just said, of course I should be only too ready to consider the amendment. As things stand, though, it seems to me that it would be simply writing into the Bill what is already the case. As my noble friend knows from his long experience of legislation, that is something which draftsmen do not like to do. I wonder whether I could put the matter to my noble friend like that. He might care to have a further word with the local authorities who are concerned with the matter and I might like to have a further word with those who advise me. And perhaps we could together have a further word about it before we reach Report. At the moment, however, I do not think I ought to accept the amendment as it stands.
Lord Nugent of Guildford: I thank my noble friend for his sympathetic if not positive reception of my amendment. The fact is, however, that the London boroughs are in the front line when dealing with these matters. When this licensing scheme starts they will have literally hundreds of sex shops to deal with. They feel that they need to have some sort of formal arrangements for licensing applications, if they are to work satisfactorily. Although my noble friend is right,

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I suppose, in saying that local authorities can make their own arrangements, it is not provided for anywhere on the face of the schedule. Unless my noble friend can point to any provision in the schedule—Heaven knows! it is a long one—I would press him to look at this matter rather seriously, because the people who have suggested that we should consider it are the ones who have experience in these fields and who will have the heat and the burden of the day to bear. While I am not going to press the amendment if my noble friend is prepared to look at it, I do, if I may, particularly urge him to look at it seriously, because there is some weight in it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 34 not moved.]
The Deputy Chairman of Committees (Baroness Wootton of Abinger): I have to point out that if Amendment No. 34A is agreed to I shall not be able to put Amendment No. 35, although I understand that Amendment No. 35 is not to be moved anyway.
6.10 p.m.
Baroness Birk Baroness Birk moved Amendment No. 34A:
Page 60, line 1, leave out paragraph 17.
The noble Baroness said: This amendment concerns the variation of licences. Paragraph 17 of the schedule enables the holder of a sex shop licence to apply for a variation in the terms on which the licence is granted. This may well follow an appeal against the imposition of those conditions, which would be time-consuming, expensive and inconvenient for the local authority. Not only would an appeal for a variation in the terms of the licence mean more work for the local authority, but I do not believe it is necessary if licences remain in force for a period of only one year. When the licence holder applies for renewal, he can ask the local authority to vary the terms of licence. This is really an attempt to cut down the paperwork and bureaucracy involved, and as licences are for a period of only one year I would have thought that any variation could have been brought up upon renewal. I beg to move.
Lord Belstead: I was a little surprised when I saw this amendment on the Marshalled List because I know the views held by the noble Baroness, Lady Birk, regarding the undesirability of local authorities having the power to impose a ban on sex shops. I would have thought that this amendment was somewhat draconian. It is entirely usual, in circumstances where a licence is issued subject to certain conditions, to enable a licensee to apply to have a particular condition varied. I am talking here about licensing generally; for example, a similar provision is contained in paragraph 14 of Schedule 1 to this Bill. I believe that in principle it is reasonable for people to come along and ask if they may have a variation to a licence.
I am really in the hands of the Committee on this occasion. I would not wish to appear to be obstructing the noble Baroness if she really feels there is something in this amendment. I had thought of offering to make the variation of licences something on which no appeal could be made, but that would be draconian and I would not like to go down that road. As I understand
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it, the noble Baroness is really concerned to try and remove any unnecessary administrative work from local authorities, and it is on that ground that the noble Baroness would like this point on variation to receive attention. I wonder if any other Member of your Lordships' Committee feels that this is something that should be looked at seriously? If there is a feeling of support for the amendment, I will certainly take it away and look at it. I should not want to accept it here and now because there is already a pretty standard provision in licensing procedures. But if there is a feeling in your Lordships' Committee that the noble Baroness is right and that I am wrong, I should certainly be happy to take the amendment away and look at it.
Lord Swinfen: Can the noble Lord the Minister say for what term licences would be issued?
Lord Belstead: For just one year, which is a very short period.
Baroness Birk: I do not feel very strongly about this amendment. The noble Lord the Minister is quite right in that it seemed to me that, as the licence is renewable every year and that it would take some time to go through the processing of applying for a variation, no injustice would be done. But if this is the usual form of appealing for a variation, and since I certainly do not wish to be draconian, I am quite happy to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendment No. 35 not moved.]
Lord Nugent of Guildford Lord Nugent of Guildford moved Amendment No. 35A:
Page 60, line 15, leave out paragraph 18 and insert—
("18.—(1) Subject to this paragraph, the appropriate authority may charge such fees as they may determine in respect of applications for the grant, renewal, or transfer of a licence under this Schedule.
(2) The appropriate authority may secure that the amount of the fees charged by them under this paragraph in a year, is sufficient to cover the amount of expenditure incurred by the authority in the year by virtue of this Schedule.").
The noble Lord said: This, again, is an amendment suggested by the London Boroughs Association. Its purpose is to ensure as far as possible that the cost of administering this licensing scheme shall be borne by the establishments licensed and that there shall not be any extra cost falling on the ratepayers as a result of the scheme. This affects in particular certain London boroughs. The proposal to amend paragraph 18 is broadly similar to that contained in the GLC Bill, which is taken from Section 15 of the Zoo Licensing Act 1981, which no doubt my noble friend Lord Belstead will know. The LBA are anxious that as the schedule is now drawn it could be that only the cost of administering the scheme will be covered. The London boroughs foresee that the costs may go very much further than that. They will have not only to administer the scheme but also to monitor it, and they will incur considerable legal expenses.
I have mentioned already that the Soho area alone contains some 100 sex shops and (although I know this offends the noble Baroness, Lady Birk, I must remind

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the Committee again) they are bristling with illegalities in terms of both the material they show and the cinemas they operate, which are not licensed. One of the problems is going to be, will they get themselves licensed at all? The local authority will have a pretty arduous job monitoring those establishments which do not get themselves licensed. Obviously the local authority has no intention of maintaining the existing number—there are some 200 sex shops already in Westminster—but will wish to reduce the number, because even to meet the strongest possible demands of humanity, that large number cannot be necessary. Also, of course, sex shops drive out conventional traders. Clearly the London boroughs will wish to take a very strong line, but what will happen to those establishments which do not obtain licences? They will just carry on without licences and, once again, the local authority will have an arduous job monitoring such establishments.
Let us make no mistake about it—sex shop operators are very powerful people, financially speaking. They have large resources of money and they do not mind paying fines of £1,000 or so. They make very large sums of money and can stand large legal expenses. It is most important that local authorities, and especially London local authorities, who have the difficult job of licensing these establishments and of operating the licensing scheme, should be allowed to charge fees which will protect ratepayers from having to pay extra on this account. That is really the purpose behind this amendment; to ensure that the fees charged are adequate to cover all the expenses that local authorities may be obliged to incur in the efficient administration of the licensing scheme. I beg to move.
Baroness Birk: Probably to the surprise of the noble Lord, Lord Nugent of Guildford, and I hope not to his displeasure, I rise to support his amendment. It seems to me that one would want to avoid any of the legitimate costs of administering the licensing scheme and inspections falling on ratepayers. That would be entirely wrong. The fees charged should cover the whole scheme as well as just the clerical and administrative costs of licensing. I take it that there will always be an auditing check, so that any local authority which suddenly got the idea of making a somewhat exorbitant charge would not in fact be allowed to do so. We want to see all the costs covered and ensure that the expense does not fall on the public purse—on the ratepayers.
Lord Belstead: First, may I say that I think there is a difficulty with this amendment, in that the wording of the Bill refers to "reasonable fees"; it has this advantage, in that sub-paragraph (2) of my noble friend's amendment is drafted in terms of the costs and fees for a particular year. I think it would be reasonable, and I think certainly possible under the paragraph as it exists in the Bill, for a local authority to seek to balance its hooks over a longer period taking into account the fluctuations in expenses that may occur. The present provision in the schedule therefore affords a greater degree of flexibility than does the amendment.
With regard to the point on which the noble Baroness,
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Lady Birk, supported my noble friend's amendment—that it is important to see that the costs are properly met—I would like to take that point away and look at it. I think this is a point which I have not entirely taken on board in thinking about this amendment. Certainly I can assure my noble friend and your Lordships that the Government's intention in the wording of the Bill is that local authorities should be able to recover their costs in full by means of the fees they charge for considering licensing applications. The point which arises is other proper expenses which should be covered as well. I would like to consider this and take advice on this point, if my noble friend would give me time to do that.
Lord Nugent of Guildford: I thank my noble friend for his willingness to look at this. I would also like to thank the noble Baroness for supporting it. I feel sure it is right if I have her support. I see the drafting point that my noble friend has referred to about a particular year; that must be wrong. If my noble friend would be good enough to look at the point as a whole, I am very happy to withdraw the amendment.
Amendment, by leave, withdrawn.
6.23 p.m.
Lord Nugent of Guildford Lord Nugent of Guildford moved Amendment No. 36:
Page 60, line 44, at end insert ("and, if the contravention constituting the offence of which he is guilty is continued after his conviction of the offence, he shall be guilty of a further offence and liable, in respect thereof, to a fine not exceeding £1,000 for each day on which the contravention is so continued.").
The noble Lord said: This is an amendment which seeks to impose a continuing fine in addition to the fine provided for in the Bill, (paragraph 19, subparagraph (3)) of £5,000. This, noble Lords will remember, was discussed by several noble Lords during the Second Reading debate. The point was made that £5,000 is a large sum of money. But we are dealing with a trade which is very lucrative indeed. It may not be enough to deter some of the operators. Certainly—I say it again—the scale on which the law is freely broken in the Soho area is something quite alarming. Naturally one asks the question, why, if all this illegal material is being shown, if all these cinemas are proceeding without being licensed, are they not prosecuted? The answer is that they cannot be raided every day: they are raided so many times a year within the resources of the police force and the resources of the Crown court. There is a two years' delay in the Crown court for offences of this kind. We are dealing with a very difficult scene there. It really is most important that the punishment that the court can give, if an establishment has been convicted, has broken the law, should be enough to deter. At present they certainly are not. A fine of £1,000, which is usually as much as a Crown court gives, is really chicken feed to the operators of these sex shops. Therefore, I have put down this amendment, with my noble friend Lord Halsbury, suggesting a continuing fine of £1,000 a day for each day on which contravention is continued.
I have no doubt that those establishments which are not licensed, or indeed lose their licences, will carry on just the same, as they do now, outside the

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law. It does not bother them. They know that the police have only got a limited capacity to take action against them. If they are taken to court they get a fine of perhaps £1,000, even if they go to the Crown court, and it is very difficult to get a conviction there. Of course a custodial sentence is another matter, but that very rarely happens and one does not want to see it. If fines are to be the punishment, it really is necessary that they should be sufficient to deter, because if they do not the whole system falls to the ground. We really are dealing with a tough bunch of people. They have very good legal advice and plenty of resources. One of the families—there are only about half a dozen families that operate pretty well the whole lot—told the superintendent with whom I was having a look round that they kept a reserve fund of £1 million for their defence costs and paying fines. They really laugh at fines of £1,000. I really commend to my noble friend that we have got a problem of enforcement.
I am sure the Metropolitan Police will confirm what I am saying, that we are dealing with people making a great deal of money and they do not mind operating outside the law in a variety of ways. We are not going to make the system work unless the penalties are adequate for those who break the law to be punished in a way that they will be deterred. I would ask my noble friend to look at the scale of punishments again. It may be that £5,000 is a hefty sum, but not in this context. I ask him to look at a continuing fine of £1,000 a day, or if he does not like that perhaps put the fine up to £10,000. Something more is needed than what we have here if we are going to make this licensing system work effectively. I beg to move.
Baroness Birk: Again, I would like to support the noble Lord, Lord Nugent, in his amendment. I think it is right and proper, and especially in the inflation that we are suffering from today. If there is the possibility of injustice to, say, a small man, the amendment does say a fine not exceeding £1,000, so the maximum is £1,000, but there is a whole range within that. When the Minister replies, I wonder whether he would be kind enough, in regard to the fine not exceeding £5,000 on summary conviction, not the daily fine but the general fine, to say whether he would consider doubling that to £10,000.
Lord Belstead: The maximum fine normally available to the magistrates' courts is currently £1,000, and beyond that figure it is generally the case that trial in the Crown court is made available. We have proposed an exception in the Bill, in Schedule 3, to that normal rule in this instance by providing a much higher fine on summary conviction than is generally available and by restricting the offences to summary proceedings only. I would say at the outset that when my noble friend Lord Nugent refers to the delays that there are in the Crown courts, indeed there are delays also in the magistrates' courts, although things have been getting better as a result of the great efforts being made so far as court administration is concerned by my noble and learned friend the Lord Chancellor. I would ask my noble friend Lord Nugent to look, as I know he will very fairly, at the desirability in these cases of trying to bring cases on reasonably swiftly and therefore choosing the magistrates' courts. If
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we do that it must have some effect on the level of fines that are going to be asked. Instead of suggesting in the Bill the normal maximum of £1,000 in the magistrates courts, we have set it, in Schedule 3, at £5,000. That is a very considerable difference from the normal maximum fine in the lower courts.
Baroness Birk: Before the noble Lord leaves that point, may I put this. Is it not true that this is really an unwritten principle in the magistrates' courts? In fact, I think there are some other exceptions, certain cases of pollution. It is a custom. Before it was raised to £1,000, I remember when I was first on the Bench it was much lower and then it was raised. I do not think this is a hard and fast rule embedded in any statute at all.
Lord Nugent of Guildford: I should like to join in this exchange and remind my noble friend that the noble Baroness, as usual, is right. The limit of fines for oil pollution runs up to £50,000 or £100,000 or something of that nature. Because there is the need to act quickly, the offence must be dealt with in a magistrate's court. If you do not deal with it in that way the chap who has caused the pollution sails away. Similarly, the Inland Revenue magistrates' courts can go for much higher fines. Therefore, there are precedents. I hope that my noble friend will look at the matter again.
Lord Belstead: The case of pollution, of course, which the noble Baroness and my noble friend are putting to me, is an offence which is triable either way. Your Lordships may chorus to me, "Why not make this offence triable either way?" We are then beginning to get into the setting of precedents and it would be possible then to start looking at other offences and saying that they should be triable either way, when they are only summarily triable at the moment. Therefore, at present, we have provided in the Bill that these offences should be triable summarily. There is advantage in them being triable summarily in the fact that they are cases which will be brought on the more swiftly thereby. By putting the maximum at £5,000, it is very much higher than is the norm to be found in magistrates' courts.
In reply to the point made by the noble Baroness, Lady Birk, all I would say is that I know that she sits as a magistrate and she will know very well from looking down the maximum fines which are suggested in a court list for a normal day that you never see fines higher than £1,000 suggested. Let me go on from there and pick up the point which is made in the amendment that there ought to be a system of daily fines. The principal difficulty with them is that if they are to work satisfactorily—and let me add that the courts have found difficulty in operating daily fines on occasion—they are best confined to continuing offences of omission. These are offences which consist of failure to do something—for example, failing to submit a statement or account. In such a case where the offence continues after conviction there is no difficulty of proof that the offence did actually occur on every day throughout a given period. But with an offence of commission, on the other hand—and it will be seen that the offences in paragraph 19(1) and (2) are cast essentially in terms

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of offences of commission—it would be necessary to produce evidence relating to each day to establish that the offence was continued, rather than just repeated from time to time throughout the period in question. That being so, and given that further court proceedings are necessary anyway to apply a daily fine, I think that it would be sensible, and indeed more effective, for the prosecution to charge the substantive offence again with the substantive maximum penalty of £5,000 rather than to go back to the court having gathered and produced evidence for each day in a set period.
I know that what I have been saying is to some extent at odds with what my noble friend has said in moving the amendment. However, I should like to add three further points. First, let me remind your Lordships that, of course, it will be necessary to see that the £5,000 maximum fine can be uprated. That was the point made by the noble Baroness when she spoke about inflation. To do that, we intend to ask for power to be included in the Criminal Justice Bill which is not yet before your Lordships' House. Secondly, let me also point out that, in addition to a fine a licence may be revoked under paragraph 16(1)(b) which gives the licensing authority the power to revoke a licence on the ground that the licensee is unsuitable to hold a licence by reason of having committed an offence. So, in addition to the fine, the licence can be removed. Finally, my noble friend Lord Nugent made the point that some people will simply disregard what has happened and go on flouting the law. Where a person persists in keeping a sex shop open without a licence in breach of Schedule 3, even after repeated prosecutions, the council will be able to obtain an injunction against him to make him stop. The sanction for breach of the injunction is, of course, imprisonment.
I do not want to appear dogmatic about the level of £5,000 which we have chosen in the Bill, but I hope that I have shown that I do see difficulties, if this is to remain a summary offence, in going higher than that. I hope, also, that I have perhaps put on record some of the other factors which I think it is important to take into account in debating this amendment.
Lord Nugent of Guildford: I thank my noble friend for putting the arguments for the £5,000 level and for putting them so cogently. I understand his point of view. However, all noble Lords know, especially those who sit on the Bench, that courts do not award the maximum fine. They are much more likely to award a fine of £1,000 and that simply cuts no ice in this field. It is the London boroughs suggestion that it should be set at £10,000 rather than £5,000. I put in the variation of a daily fine but perhaps that was not a very good mechanical arrangement—I accept that. However, something higher than £5,000 is needed; of that I feel convinced. I hope that my noble friend will look at the matter again before the Report stage because if he could make sure that the courts would hand out fines of £5,000 every time, then maybe it would begin to have an effect. However, they do not do that, as my noble friend well knows, and that is why the figure needs to be set higher. However, at this point I beg leave to withdraw the amendment.
The Earl of Halsbury: Before my noble friend with-
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draws the amendment, I would ask the noble Lord the Minister to think between now and Report on the following lines. What is special about a day? The noble Lord said that we have to prove that they have done it on every day between two offences. Why not prove it every minute of every day? A day is only a sample. Why do we have to sample them once a day? Why not take a random sample throughout the period. Sampling theories are a very well-known technique, and it is surely time that the law did more that than just give us reasons for not being able to do anything.
Amendment, by leave, withdrawn.
6.38 p.m.
Lord Nugent of Guildford Lord Nugent of Guildford moved Amendment No. 36A:
Page 62, line 7, leave out ("£200") and insert ("£1,000").
The noble Lord said: This is an amendment to uprate the fine for obstructing an officer in the execution of his duty under these provisions, from £200 to £1,000. Again, this is the London boroughs' suggestion. They make the point that it is very easy for someone running one of these establishments which has been entered by police or by an officer of the local authority —and when they have a good deal of illegality going on there which they wish to cover up—to obstruct the officer. He cannot see the evidence and so they have a chance of getting away with it, and they will be fined only the lesser sum. That is the point. It is a perfectly sound and practical point. if the penalty for obstruction is put at £1,000, it will perhaps reduce the danger of that type of tactic being, followed. I beg to move.
Lord Belstead: I must say that I am becoming a little uneasy at the desire to increase these penalties and I say that for the following reason. I think that it is worth my just reminding the Committee that the Government have taken—and your Lordships have been good enough to recognise it—quite a firm line so far as some of the substantive provisions of Schedule 3 are concerned, in order to make it possible for local authorities to take a firm line in considering the desirability or the undesirability of the establishment of sex shops.
But, having said that, I think that one must look at the levels of fines in respect of other forms of licensing. The fact is that the penalty of £200 is the standard penalty for an offence of this kind. Indeed, one has only to look at Schedule 1 paragraph 12(5) of the Bill to find £200 as the penalty for preventing powers of entry in the context of the licensing of public entertainments. To stand in the way of someone empowered to enter, when a person has something to hide as regards the safety of the public in licensing public entertainments, could be a very grave offence indeed. So I simply say to your Lordships that to start to pull out these particular offences and to say that the amounts of fines should be infinitely higher, is something that should give us cause to hestitate.
I would also point out that any such obstruction of the police or licensing authority in respect of licensed premises would be a matter which the licensing authority would clearly take into account in considering

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an application for the renewal of a licence. I think it is right that we take into account that point as well. I shall certainly look at this and ask for advice on it, but it is the responsibility of the Government department concerned to look at the level of other financial penalties when proposing financial penalties in legislation. That is what we have done in this particular case, and it is for that reason that I ask your Lordships to hesitate.
Baroness Birk: I should like to ask the Minister something. I understand that in the GLC Bill dealing with the same provisions, the fine is £500. I do not see why it should be less in this Bill than it is in the GLC Bill. As I understand it, in the Criminal Justice Bill, the fine for obstructing officials in food and drugs is as high as £1,000. So I am rather mystified as to why the Government are sticking to £200 on this.
Lord Belstead: The GLC Bill is a Bill relating only to London and, of course, this Bill relates to the whole country. But I shall most certainly look at this again. I would ask your Lordships, for your part, to look at the arguments which I have also put forward. I do not think that these cases are always absolutely cut and dried. If the amendment is withdrawn, I shall certainly look at it and take further advice.
Lord Nugent of Guildford: I must thank my noble friend for his willingness to look at it, but the points made by the noble Baroness, Lady Birk, are, of course, correct. There are precedents. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.43 p.m.
Lord Belstead Lord Belstead moved Amendment No. 37:
Page 62, line 9, leave out ("sub-paragraph (2)") and insert ("sub-paragraphs (2) and (2A)").
The noble Lord said: I beg to move Amendment No. 37 and, if I may, I shall speak also to Amendment No. 39. The purpose of these two amendments, as will be clear, is to provide that there shall be no right of appeal against the refusal of an application for the grant or renewal of a licence where that refusal is based on either of the grounds set out in paragraph 11 (3)(c) or (d).
As I am sure your Lordships are aware, concern was expressed in another place that the local authority's judgment in such matters as the appropriate number of sex establishments for a particular locality and as to the character of the locality would be at risk of being overturned by the courts on appeal. It was argued that these were matters which, in view of their essentially local character, should be determined by the local authority and not ultimately by the Crown Court, which would be less familiar with local circumstances.
We have considered this matter very carefully and we take the view that in this instance it would be right to make the local authority's judgment final. A distinction can be drawn, we believe, between these grounds and questions as to whether the applicant is unsuitable to hold a licence, which should be capable of being reconsidered fully on appeal. I beg to move.
Baroness Birk: As we are taking these amendments together, I think that I had better speak to this because, in accepting one, I am practically accepting the other amendment. I am afraid that I cannot make any apology for once again speaking on this particular subject, but it is of a grave importance which goes quite beyond the question of sex shops, so we should be careful before we just let it slide through.
This is a question of taking away the right of appeal. The fact that it is also tied up with the "nil" provision —which the Government are seriously contemplating, to put it at its lowest—makes the whole thing even more restrictive. The Minister said that the courts would probably overturn, or might overturn, the local authority on appeal. If we follow that dictum about almost anything else we can think of, we are really saying that we will not risk taking something to a court in case the verdict which the court gives is one that we do not like. I must confess—and I do not like saying this to the Minister—that I find this quite monstrous. It seems to me completely contrary to British justice and to natural justice. I think it is something about which we should hesitate a long time before we allow it to go through.
On an earlier amendment the Minister said that there was, of course, the right to appeal on the question of the person getting the licence. That is very good as far as it goes. But these two paragraphs, which deal with the number of sex establishments in an area and which say:
"or exceeds the number which the local authority consider is appropriate for that locality;
(d) that the grant or renewal of the licence would be inappropriate, having regard—

(i) to the character of the relevant locality; or

(ii) to the use to which any premises in the vicinity are put; or

(iii) to the layout, character or condition of the premises, vehicle or stall, in respect of which the application is made",

seem to me to be absolutely right and proper grounds on which an appeal could be brought and taken to the courts. If the Minister is saying "We cannot trust the courts"—and in this case presumably in the first instance it would be the magistrates' courts—let him come out and say so; let him say that he does not trust the courts to behave fairly in a matter like this.
If we let this go through in this way, we shall do something which goes far wider than whether or not one is concerned with or wants to have sex shops in an area. I think that that is quite irrelevant to the far more important principles that underline the amendment which the Minister has moved. This is something which I hope other noble Lords, even if they hold quite varying views on whether or not there should be sex shops will appreciate and on which they will support me.
Lord Evans of Claughton: I must say that I wholeheartedly endorse every word that the noble Baroness, Lady Birk, has said. This appears to me to be saying that local authorities might well make a decision which is totally contrary to natural justice—and I promise the noble Earl, Lord Halsbury, that I shall not mention the word again, if he does not mention the word "brothels"—and because of that and because it is desired in the immediate neighbourhood, we shall not

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allow them to appeal to some other tribunal so that justice can be done.
It seems to me that the result would be that where we have a local authority that might decide to behave, shall we say, on more puritan grounds and not allow a sex shop in any part of its district, we might find that the district next to it, perhaps being a little less puritan, would find itself with a whole conglomeration of sex shops. We might find that if there is a whole cluster of local authorities that take an anti-sex-shop view—and this is the most serious part—this particular trade (which, as I have said a number of times, I personally find distasteful) would be driven underground. As the noble Viscount, Lord Ridley, said during an earlier debate, I should have thought that that would perhaps be the most serious and dangerous situation that could arise. It seems to me that we are really taking extreme steps here.
I appreciate and understand the views of noble Lords who, over a great number of debates in the last two days, find the whole concept evil, but we are going too far down the road of authoritarianism in this respect. Why do we not impose the same kind of rules about licensing of public houses? Why do we not apply the same kind of rules about licensing betting shops, and so on? Although I do not like the concept of sex shops, although I do not like the idea at all, I feel that by taking this step we would go too far and we might be creating a much worse situation than the one we are trying to cure.
The Earl of Halsbury: I support the amendment and I hope the noble Minister will stick to his guns. There is a great deal of loose thinking involved in what we have been debating. We are using such concepts as "natural justice" out of their normal field of application. Natural justice, I have always been taught, is a relatively narrow concept. It deals with such matters as the injustice of retrospective legislation, or the injustice of not allowing a person to know what he is being accused of. It has nothing whatever to do with whether you are allowed to have your own way or not. There is no natural justice involved in altering the law so that what was once permissible is no longer permitted. What would be contrary to natural justice would be making the penalty for it retrospective.
I feel that there is another matter on which we are in danger of becoming rather loose in our thinking, and that is the jurisdiction of the courts. To say that the courts have not got jurisdiction, or are not going to be given jurisdiction, is not a criticism of them. It is merely saying that in a particular context they are not there for that purpose. It is quite common in a court for the judge to ask learned counsel, "Have I jurisdiction in this matter?" and learned counsel will adduce the arguments as to why he has, or has not, got jurisdiction in this matter.
On the simple question of, "We don't like you. We don't want you", there is no question of justice or injustice here. It is just a gut feeling that people have, and Parliament is now being asked to say that we will make a law which enables them to give effect to their feelings of, "We do not want these activities here". Many of us would like to make them criminal
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offences. The great difficulty is that the permissive character of our society and the techincal breakdown of law have made it impossible for us to go about it in that way. We are going about it in a compromise way, and I believe that the type of compromise which the Government have chosen in this instance will be effective and that we should support the amendment accordingly.
Lord Jenkins of Putney: It seems to me that the noble Earl, Lord Halsbury, is coming close to saying "If I dislike a thing, then its prohibition is just. But if I like it, then its prohibition would be unjust." What he said came close to saying that. Furthermore, what he is going further to say is, "The appeal against what I dislike is something that I will not support. But if a thing is in order as far as I am concerned, then it is all right not merely to let it go on but to appeal against any decision against it".
Therefore, we are moving into a situation, as I said on an earlier point, in which not only are we devolving upon local authorities a decision which ought to be made in this House, but having devolved that decision on the local authorities, we are then saying, "There shall be no appeal against the local authorities' decision". This is a very undesirable thing, and I am wholly opposed to it.
The Earl of Halsbury: How can you appeal against my not liking suet pudding? What is there to appeal about? I just do not like it. Vox populi, vox dei. Presumably, according to the idealogy of most popular parties, the local governments are the representatives of their electors, and if their electors do not want a mischief in the district, why should they not say, "out"? It is as simple as that. It is not what I like; it is what the presumptive electors of a whole district do not want. London is a permissive and rather mongrel slum increasingly, but the provinces are perfectly prepared to set London a good example and say, "But, we don't want it". Why should we not let them?
Lord Jacques: At the third attempt I think I am entitled to speak now. I would remind the Committee that over the years Parliament has taken the view that the environment is so important to the community that environmental decisions as to the use of land and buildings should be made only by people who are elected, and not by the courts. In other words, a political decision rather than a judicial decision. You have it obviously in planning. If an application is made for a particular use of land and buildings, it has to be made to the planning authority which consists of elected councillors. If, in the final analysis, there is an appeal, that appeal is decided by the Secretary of State in the elected Government. It never goes to court.
Parliament in its wisdom has decided that the use of land and buildings affecting the environment is a political decision and not a judicial decision. I therefore think that in principle the Government are right in this amendment. They are right in saying that the question of the suitability of the person shall go to the court. That is a judicial matter and it should quite properly go to the court. But the environmental matter should not go to the court.

453
That brings me to my last point. All right, it does not go to the court, but should the applicant be left without any appeal? That is another question. I would say that either the amendment should stand as it is, that there should be no appeal on the environmental question because it should be a political decision, or alternatively if there is going to be any move by the Government at all it should consider as a possibility that the appeal should be an appeal in writing to the Minister. No hearing, just an appeal in writing to the Minister, which is often done. If there has to be an appeal it should be a political appeal and it should be an appeal in writing to the Minister.
Lord Wigoder: Over the last two or three minutes I have developed something of a guilt complex about my addiction to suet pudding. I would, if I may, only invite the noble Lord to comment on this matter—some people dislike sex shops, and it is quite understandable that they should. Some dislike betting shops. Some dislike public houses. There are many people who regard one or the other, or all three, as being social evils of one sort or another. But they all are in fact recognised as being legal in certain circumstances.
When I look at the conditions, the criteria, which are set out in paragraph 11(3)(c) and (d) of Schedule 3, the number of establishments, whether it is appropriate for the locality, the regard to the character of the locality, the use to which the premises are put, and the layout, character or condition of the premises, and so forth, it seems to me to be not by any means dissimilar to the sort of issues that are considered by the local justices when they are considering applications for betting shops, or for public house licences.
I think that no one has ever complained that the local justices are out of touch with public opinion in their locality when they deal with issues of that sort. No one has ever before suggested, I think, that the local authority is a better tribunal for deciding those issues than the local magistrates. I agree with those such as the noble Baroness, Lady Birk, and my noble friend Lord Evans, that this is going down a rather dangerous path to say that not only shall the decision be that of the local authority but that there shall, on these issues, which are justiciable issues, be no appeal whatever to the courts.
Lord Monson: I entirely agree with the noble Baroness, Lady Birk, and the Liberal Benches. Certainly so far as existing establishments are concerned. Establishments which are opened after the coming into force of this Act, or indeed after the beginning of 1982 when it was already known, or suspected, that the law would be tightened up, are perhaps a different matter. We are after all talking about the closing down of what are perfectly lawful businesses and, in some cases, the loss of people's livelihoods.
We tend in both Houses of Parliament, and most particularly in another place, to be circumspect when talking about these matters, partly because of a natural reticence and partly because of a natural fear of being misquoted, or quoted out of context, in one of the less responsible publications. As a revising Chamber, we surely have a duty to face the issues squarely.
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There are two opposite and sincerely held views about the practical consequences of sex shops. The view of the noble Earl, Lord Longford, the noble Lord, Lord Nugent, and others—I hope I am not summarising them unfairly—is that sex shops engender abnormal appetites in their customers that were not previously present; and if their guess is correct then it is a very serious matter. My view, and I think that of certain other noble Lords, is that a certain percentage of people in this country, or in any other, already possess abnormal appetites (abnormal either in intensity or orientation) and that the one good thing about sex shops—just like prostitution, to which the same arguments apply—is that they enable those desires to be satisfied relatively harmlessly. If I am right in my guess, it stands to reason that innocent women and children alone in their homes, walking down an unlit street at night or walking through woods, will be less at risk than would be the case if all these establishments were abolished. After all, rape and indecent assault are surely a far greater social nuisance than any minor irritation caused by the existence of sex shops.
The vital question is, who is right? Sex shops have been in existence for many years and I think one can take it that if the medical advisers to successive Governments had endorsed the fears of the noble Lord, Lord Nugent, and others, sex shops would have been outlawed outright many years ago, and rightly so. The fact that they have not been outlawed suggests that the expert consensus is that they are not, on balance, harmful, however aesthetically distasteful they undoubtedly are. That being so I contend that people should not be driven out of what is a lawful business without the fullest right of appeal.
Lord Houghton of Sowerby: I wish to put a slightly different point of view about the amendment, which I regard as a most reprehensible amendment. The Committee should decline to pass an amendment which proscribes the liberty of the subject without the sanction of the House of Commons. The other place did not debate this issue. The last amendment and this one dealing with the liberty of the subject was merely a sop thrown out by the Minister on Report of the Bill in another place without any debate on the detail of the matter, and that is wrong constitutionally. Your Lordships should be the champions, the custodians, of the liberty of the subject and should not send a Bill to the House of Commons with things in it which the other place has never dealt with. In those circumstances, the Committee should reject the amendment and have it debated where it really belongs, which is in the House of Commons.
Lord Swinfen: Am I not right in thinking that as the Bill will have been amended by your Lordships' House, when it returns to another place they will then have an opportunity of discussing the point?
Lord Belstead: I am grateful to my noble friend Lord Swinfen for reminding us of that, and I would add to what he said that the noble Lord, Lord Houghton, is not correct in his assertion that this point was not looked at in the House of Commons. It was precisely pressure there, to the effect that allowing an appeal to the courts in betting cases had resulted in an undesirable

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proliferation of betting shops, that led to the Government undertaking in another place—and I repeated the undertaking on Second Reading—that we would look at the matter again. That is why we are bringing this amendment forward. The substantial amendment is No. 39, to which No. 37 is a paving amendment.
A good deal has been said in this short debate about the amendment being in breach of natural justice, and of course I respect the views expressed by noble Lords about that. I should, however, make it clear that the absence of a right of appeal against refusal on the grounds set out in paragraph 11(3)(c) and (d)—what the noble Lord, Lord Jacques, called the environmental grounds—would not affect the ability of an applicant to apply to the High Court, with leave, for judicial review. That would provide a safeguard in a case where it was felt that the local authority had not considered the application properly; for example, in not following the procedure specified in the schedule or by taking irrelevant considerations into account. I believe, as I said when we were discussing the amendments tabled to Clause 2 by my noble friend Lord Nugent and the noble Earl, Lord Halsbury, that the present amendments will ensure that local authorities have a substantial say in whether there should be any sex establishments at all and, if so, how many there should be and where they should be situated. That is certainly the wish of the Government and I hope that we shall find that it is the wish of the majority of your Lordships.
Lord Wigoder: Would the Minister agree that an application for judicial review would not be available if the local authority had gone wrong on the merits?
Lord Belstead: I am not as conversant with Order No. 53 as the noble Lord, Lord Wigoder. My understanding has always been that judicial review allows a case to be brought on swiftly and leaves a considerable amount of discretion to the court. Broadly speaking, I believe that what the noble Lord says is the case.
Baroness Birk: I found the Minister's reply extremely unsatisfactory. He said that because of the proliferation of betting shops, we want to make absolutely certain that no court will be able to give the go-ahead to an application for a sex shop which has been turned down by the local authority. He was answering obliguely, not directly, my question as to whether there was confidence in the courts. The noble Lord, Lord Wigoder, was right to say that magistrates' courts have for long been handling applications for betting shops and public houses. We should add that, so far as betting shops are concerned, under the Gaming Act there is a gaming board to which magistrates, licensing authorities and so on can refer.
In this case we have no protection whatever. I am here talking not about natural justice but British justice, to which I referred when I spoke immediately after the amendment had been moved. We are talking about taking away a right of appeal, and the Minister more or less said that it was being taken away because it was thought that too many applications might get through the net. I repeat, magistrates are an assortment of people with differing views. They will have differing views on the merits or otherwise of sex shops
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and, when such applications come before them, they will be looking at the criteria and merits of each case. This is such an important matter that we cannot allow it to go through in its present form, and we must therefore divide the Committee.
7.8 p.m.
On Question, Whether the said amendment (No. 37) shall be agreed to?
Their Lordships divided: Contents, 87; Not-Contents, 48.

DIVISION NO. 2

CONTENTS

Ampthill, L.

Kinnoull, E.

Auckland, L.

Lane-Fox, B.

Avon, E.

Lauderdale, E.

Barrington, V.

Lindsey and Abingdon, E.

Bellwin, L.

Long, V.

Beloff, L.

Loudoun, C.

Belstead, L.

Lyell, L.

Bolton, L.

Macleod of Borve, B.

Boyd-Carpenter, L.

Mancroft, L.

Bridgeman, V.

Mansfield, E.

Campbell of Alloway, L.

Marley, L.

Cathcart, E.

Mersey, V.

Coleraine, L.

Milverton, L.

Colville of Culross, V.

Montgomery of Alamein, V.

Cork and Orrery, E.

Mottistone, L.

Cottesloe, L.

Murton of Lindisfarne, L.

Crathorne, L.

Newall, L.

Croft, L.

Noel-Baker, L.

Cullen of Ashbourne, L.

Northchurch, B.

Denham, L. [Teller]

Nugent of Guildford, L.

Drumalbyn, L.

Nunburnholme, L.

Dundee, E.

Pender, L.

Eldon, E.

Platt of Writtle, B.

Ellenborough, L.

Rankeillour, L.

Elles, B.

Redesdale, L.

Elliot of Harwood, B.

Renton, L.

Elton, L.

Ridley, V.

Fortescue, E.

Robertson of Oakridge, L.

Fraser of Kilmorack, L.

Romney, E.

Gainford, L.

St. Aldwyn, E.

Gainsborough, E.

St. Just, L.

Gibson-Watt, L.

Saltoun, Ly.

Glanusk, L.

Sandford, L.

Glenarthur, L.

Sandys, L. [Teller]

Halsbury, E.

Stradbroke, E.

Harvington, L.

Swinfen, L.

Hatherton, L.

Terrington, L.

Henley, L.

Thomas of Swynnerton, L.

Holderness, L.

Tranmire, L.

Inglewood, L.

Trefgarne, L.

Killearn, L.

Trumpington, B.

Kilmany, L.

Vaux of Harrowden, L.

Kinloss,, Ly.

Windlesham, L.

Kinnaird, L.

NOT-CONTENTS

Ailesbury, M.

Evans of Claughton, L.

Airedale, L.

Ewart-Biggs, B.

Aylestone, L.

Fisher of Rednal, B.

Bacon, B.

Foot, L.

Beaumont of Whitley, L.

Gladwyn, L.

Birk, B.

Greenway, L.

Bishopston, L.

Grey, E.

Broadbridge, L.

Hampton, L.

Brockway, L.

Hooson, L.

Cledwyn of Penrhos, L.

Houghton of Sowerby, L.

Collison, L.

Irving of Dartford, L.

Craigavon, V.

Jeger, B.

David, B.

Jenkins of Putney, L.

Davies of Leek, L.

John-Mackie, L.

Davies of Penrhys, L.

Kilmarnock, L.

457

Lovell-Davis, L.

Taylor of Mansfield, L.

McCarthy, L.

Tordoff, L.

Mishcon, L.

Tweeddale, M.

Monson, L.

Underhill, L.

Peart, L.

Wells-Pestell, L.

Phillips, B.

Whaddon, L.

Ponsonby of Shulbrede, L.

Wigoder, L. [Teller]

[Teller]

Willis, L.

Spens, L.

Wynne-Jones, L.

Stedman, B.

Resolved in the affirmative, and amendment agreed to accordingly.
7.17 p.m.
[Amendment No. 38 not moved.]
Lord Belstead Lord Belstead moved Amendment No. 39:
Page 62, line 32, at end insert—
("(2A) An applicant whose application for the grant or renewal of a licence is refused on either ground specified in paragraph 11(2)(c) or (d) above shall not have the right to appeal under this paragraph.").
On Question, amendment agreed to.
Lord Denham: I think that this is probably a convenient moment to adjourn for dinner. Subject to the intervening business, may I say that the Committee will resume on this Bill at 8 p.m. Therefore, I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Civil Aviation (Amendment) (No. 2) Bill [H.L.]
7.18 p.m.
The Earl of Kinnoull: My Lords, I beg to move that this Bill be now read a second time. After the excitement of the previous business I shall try to be brief and sharp in introducing the Second Reading of this Bill so as not to cause any undue indigestion during the dinner hour. This small Bill has one purpose: it is to repeal Section 15 of the Civil Aviation Act 1949, which, 32 years ago, set out to ensure that those working in the independent sector of the air traffic services should, for comparable work, have terms and conditions of employment comparable with those working for the state airlines, then BEA and BOAC. That was, and is, a statutory obligation which may be overlooked only if both employer and employee agree.
If they were here, some noble Lords might have said that it is surely a little heavy to promote a special Civil Aviation (Amendment) (No. 2) Bill to clog up the limited parliamentary time, all for a single purpose, when only a few months ago another Civil Aviation (Amendment) Bill passed through this House. I would agree. It would have been far better to have tacked this on to that Bill; but parliamentary procedure has many mystical ways, and the matter was judged not to be relevant to the subject matter of the last Bill and was not acceptable as an amendment.
The justification for seeking the repeal of Section 15
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now is not just that this is an archaic statutory obligation which has lost its original purpose and objective—and that was to protect BEA and BOAC against unfair competition. It is principally because it now has the seeds of a potentially harmful and unbalancing effect on the sensible harmony of management and staffs of the independent airlines, who battle to survive in a fiercely competitive climate on often a wafer-thin operating margin plus the undoubted goodwill and loyalty of their staffs.
The ever-alert noble Lord, Lord Ponsonby, may say, "But we have had all this argument before, as under the Civil Aviation Act 1980, Section 15 will automatically be repealed when British Airways is privatised". That, of course, is true, and it makes me just as concerned now to persuade my noble friend, whose support I need in time allocation if this Bill is to succeed, as the noble Lord, Lord Ponsonby. My noble friend will know better than I that this is no frivolous power which needs repealing at some time; it has the potential seeds of an unnecessary conflict, and really should be repealed now.
I cast no doubt on the good intention of my noble friend or his right honourable friend to privatise British Airways as soon as practical. But the fortunes, or the misfortunes, of British Airways lead me to feel that it may take painfully longer to get itself into shape before a sensible prospectus can be written. I do not doubt that will happen, but the danger in the meantime is that this archaic statutory obligation could be misused, and disruptively misused, at a most sensitive time; and I believe that this is a very compelling argument.
The repeal of Section 15 does no harm to British Airways; nor, I submit, does it safeguard or ensure any jobs in the independent sector. Nor can it offer any blank cheque to employees, for if the airlines cannot afford it, as we saw sadly with Laker, then the employees lose their jobs. It is a curious statutory obligation laid down on the independent sector over which they have no say, no consultation, no discussion with British Airways, as to the terms and conditions that British Airways negotiate with their staff. Indeed, why should they? It is as unique, I suggest, as the sight today of a carthorse pulling a London bus up Regent Street.
There have been cases of contention under this Section 15. In fairness to the House, I should report this. In the 1950s there was in fact a spate of cases; and in the early 1970s there was, of course, the case of Balfour and British United. They got into a conflict which lasted some ten months. I hope this will not be repeated. It was a most unfortunate problem. The independent airlines are uneasy. I believe that this section could again trigger off such a dispute by some less responsible party at a time when the airlines can least afford it.
None of these arguments takes away, of course, the right to discussion between management and staffs negotiating with each other year by year, and I do not think that whoever discusses this would claim that it does that. The difficulty must be, if you try to take a comparable case between British Airways and any other British airline, how do you judge or value the question of seniority, of monthly flying hours or of the fringe benefits? They are all totally different.

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I do not need to remind the House that British airlines, along with their foreign competitors, face very exacting commercial conditions today. From reports one reads from across the Atlantic, the tragic collapse of Laker may not prove to be the only North Atlantic carrier to fail. Desperate measures are being sought by the US carriers to survive. Even the grand old lady Pan Am is seeking cuts in staff salaries all round the world, notably in Britain, to reduce their huge losses. That is the climate facing airlines—a climate of rising costs, of deregulation and of recession in passengers.
The Government have acted, I believe, with commendable firmness and speed in the temporary allocation of the Laker Los Angeles route to BCAL. It was clearly an important decision to take if the two remaining British carriers across the Atlantic were to continue to hold their 50 per cent. of the traffic against the nine US carriers. Perhaps my noble friend could comment later on how soon BCAL intend to start operating this route.
That is the support that British airlines require from the Government in these difficult times, and I hope my noble friend will add to the Government's good record tonight by supporting this small Bill to repeal Section 15—an action which the many letters I have received would indicate the airlines would widely welcome. I commend this Bill to your Lordships and beg to move that it be read a second time.
Moved, That the Bill be now read a second time.—(The Earl of Kinnoull.)
7.27 p.m.
Lord Ponsonby of Shulbrede: My Lords, we have already agreed, as the noble Earl has said, that Section 15 of the 1949 Act be repealed. It was, of course, a part of the Civil Aviation Act 1980 which repealed this Section of the 1949 Act, but, of course, this cannot come into effect until some portion of British Airways is privatised. Since this privatisation may not take place for quite some time, if ever, this new amending Bill has been brought forward this evening by the noble Earl in order to ensure the repeal of Section 15 immediately.
Our belief at the time the 1980 Act was passed—and I would reiterate it again this evening—was that it would be some considerable time before British Airways was in a marketable condition; and I think that reports which have been referred to in the press recently indicate that it will be some considerable time before the Government are able to realise their desire to privatise British Airways.
As the noble Earl has said, the effect of the Bill is to abolish the regulation, as set down by the Civil Aviation Act 1949, which provides that the terms and conditions of service of those employed by independent air transport undertakings
"shall not be less favourable than the terms and conditions observed by the Airways Corporations in the case of persons engaged in comparable work, or, where the Airways Corporations do not observe the same terms and conditions for persons engaged in comparable work, are not less favourable than the terms and conditions observed for such persons by at least one of those Corporations".
Of course, it may be difficult, as indeed the noble
460
Earl has pointed out, to make exact comparisons in particular grades. However, Section 15 has served as a minimum employment standard by which employers have had to abide. Indeed, it can be said that several employers have in fact paid their staff more than the particular rate that the 1949 Act suggests. If this minimum standard is eliminated, it could cause further chaos in the air transport industry as there will be nothing to which the trade unions can work in their negotiations. Section 15 has acted as a stabilising factor within the industry. The fact that the arbitration procedure is there, time-consuming as it is, has enabled those involved in negotiations to threaten the use of the procedure. However, as the noble Earl has indicated, basically this procedure has not been used because nobody wants to indulge in it. The fact that it is there has enabled agreements to be reached by management and unions to work towards the particular targets in rates of pay and conditions of service which Section 15 indicates.
It would not be true—and the noble Earl made this point—to say that the section has not been used. The noble Earl quoted the case in 1970 of the British Airline Pilots' Association and British United Airways where the pilots claimed that their wages were £8 to £10 less per week than those doing comparable work for BOAC and BEA. In fact, they were successful in this particular reference under this section. More recently, there has been the case of Fields Aircraft Services, but in this case the ruling went in favour of the employers and not of the employees. It can be said basically that the trade unions believe that the regulations of conditions is necessary in order to keep to a minimum conflict in negotiations. With Section 15, there are some regulations on which they can rely. If this section is repealed, the unions will have to rely solely upon industrial muscle, which inevitably will lead to militant action.
So far as both privately-owned and publicly-owned airlines are concerned, they appear at the present time to be only mildly interested in the repeal. They believe that Section 15 is outdated and therefore should he repealed; they claim, as the noble Earl pointed out, that contracts with their employees are now becoming very complicated; and I think the noble Earl stressed those particular points. It seems to me that nothing will be gained by removing this section from the statute book. However, if the noble Earl, Lord Kinnoull, could have shown that the passage of this Bill would have benefited the industry as a whole, then I would have felt inclined to advise my noble friends to let the Bill have an unopposed Second Reading.
However, in his speech, the noble Earl pointed to the main reason, as he put it, that he felt that the continued existence of this section was a potential seed of conflict. The potential seed of conflict could arise, I believe, if this section is removed from the statute book. However, I should say I have been informed by the trade unions involved in the industry that the Secretary of State for Trade, accompanied by his Parliamentary Secretary, Mr. Sproat, recently met with trade unions officials in the industry and at this meeting the trade unions were assured that the Government would not repeal Section 15 until British Airways was privatised. This meeting was held on Tuesday, 3rd November last at the Department of Trade and

461
Industry at 2.45 p.m. and was arranged under the auspices of the TUC's Transport Industries Committee. In view of this undertaking, I believe the Government cannot support this Bill and I hope in the circumstances that the noble Earl will withdraw it. It would be wrong in these circumstances to waste the time of the House by letting this Bill go to a further stage. If the noble Earl will not in those circumstances withdraw the Bill, I shall have to advise my noble friends to vote against it.
7.35 p.m.
Lord Trefgarne: My Lords, I would like to begin by congratulating my noble friend Lord Kinnoull for his enterprise in bringing this Bill before your Lordships' House. We have been much reminded recently of the difficulties faced in the present economic climate by the airline industry, not least by the independent airlines; and this Bill is most welcome as a measure to ease pressure on this sector. I am glad to be able to say, therefore, that the Government strongly support this Bill.
Section 15 of the 1949 Act runs directly counter to the commonsense approach that we have adopted towards pay and free collective bargaining. It does not make sense, my Lords, to provide for an automatic link between the terms and conditions of employment of two orgsnisations without having regard to the individual circumstances of each. But Section 15 does just that in laying town that the employees of independent airlines are entitled to terms and conditions of employment no less favourable than those of British Airways. This mistaken concept is compounded by the provision in the section for unilateral access to compulsory and binding arbitration in cases of dispute. The Government recognise that arbitration can have a positive role to play in exceptional cases as a means of resolving disputes. However, we also believe that issues should normally be put to arbitration only with the consent of the parties concerned. Certainly we do not accept that it is constructive for a statutory framework like Section 15 to provide for unilateral access to binding arbitration. This can remove the obligation on parties to work together; and, as I shall go on to explain, it completely overturns in this case the normal balance of employer-employee relationships.
In fact, I am told that a number of major independent airlines have not yet reached British Airways' pay rates. On the face of it, one could make the welcome deduction from this that their employees have agreed not to press for their full entitlement under Sections in the light of those airlines' economic circumstances. To take that reasoning further, it could be argued as a consequence that Section 15 has no effect and is redundant because both sides are properly taking as their benchmark what an airline can afford to pay. Those who would argue in this way would not, I assume, oppose the repeal of the section. But that argument over-simplifies the effect of Section 15. It would indeed be unwise for airlines' employees to drive themselves out of work by insisting on full comparability. What we are talking about rather is a question of balance. And the very existence of Section 15 on the statute book, with its provisions for enforcement,
462
upsets that balance. It gives the employees of those independent airlines an extreme bargaining power which can be used to push their pay settlements beyond the level that would have been arrived at through normal, balanced pay negotiations.
That brings me to the main reason why we support the Bill. As I indicated earlier, the independent airlines—and, indeed, all airlines—have been hard hit by the sharp fall in demand accompanying the recession. They have also been squeezed by foreign competitors—by which I mean mainly the US carriers, who are not, in their home base, subject to any constraint like Section 15, and foreign state-owned airlines, for whom control of costs may not be so crucial to survival. Without doubt, 1981 was the most difficult year that the United Kingdom independent airline sector has experienced in the last decade. Companies which had a good record of profitability were forced into making losses. Some parts of the industry were harder hit than others, but the scheduled operators were faced with particularly difficult conditions. And we have only too recently an unwelcome example of this in the collapse of Laker. In these conditions, the independent airlines need the maximum flexibility on costs; their managements have to be allowed to take the initiative; and they should not be asked to go on operating under the constraints of Section 15. Consequently, the sooner the section is repealed the better.
As my noble friend has said, one of the effects of this Bill will be to speed up the repeal of the section (for the Civil Aviation Act 1980 already provides for repeal on the privatisation of British Airways). From what I have said it will be apparent that the Government do not believe that independent airlines should be asked to wait any longer for the repeal. But it should not be construed that Government support means that the privatisation of British Airways has been postponed indefinitely. On the contrary, we are still aiming to achieve privatisation as soon as possible; and recent press reports are evidence that this is also very much in the mind of the airline's chairman.
I should finally add that Government support for this Bill carries no emotive element of union-bashing. In fact, industrial relations in the sector, despite some lapses, have been generally good. It is not a sector that has been renowned for the exploitation of its employees. Neither is it reasonable to assume that exploitation would follow on from the repeal of this section.
What we are talking about instead is allowing employees and employers to negotiate the terms and conditions of employment in this business in a balanced and sensible way. This has, my Lords, worked well enough in other sectors which have been without statutory provisions and I see no reason why it should not work here.
May I now turn to the final point made by the noble Lord, Lord Ponsonby, about what he calls an undertaking that was apparently given by my right honourable friend the Secretary of State for Trade. There is, I am sorry to say, some misunderstanding in the mind of the noble Lord over this matter. At the meeting in question, which took place on 3rd November last year, as the noble Lord rightly pointed out, my right honourable friend merely stated the statutory position, which was that the repeal of Section 15, enacted in the Civil

463
Aviation Act 1980, would take effect under that Act only when British Airways was ready for privatisation. No legislation to alter that position was then in prospect —my noble friend Lord Kinnoull had not yet introduced his Bill, and the Government certainly had no intention of introducing another Bill of their own on the subject—but my right honourable friend said nothing at all that precluded Government support for legislation to accelerate the repeal should the opportunity occur.
Lord Ponsonby of Shulbrede: My Lords, I am under no misapprehension about this point. I have been informed by the trade unions involved that this was the undertaking that was given at that meeting.
Lord Trefgarne: My Lords, I am sorry to say that I think that the noble Lord is misinformed. I have taken great care over this matter and have consulted my honourable friend Mr. Sproat about this. This is clearly the position as he recalls it, and he was certainly present at the meeting.
My Lords, if your Lordships pass the Bill, it must then go, of course, to another place. Noble Lords would not expect me to speculate on the progress there of a Private Member's Bill. None the less, as I made clear at the start, the Government do support the Bill's objectives. We are willing to assist my noble friend Lord Kinnoull in improving the drafting of the Bill so far as is necessary. On this basis, I have no hesitation in commending the Bill strongly to your Lordships' House, and I hope that you will pass it.
The Earl of Kinnoull: My Lords, I should like to thank both noble Lords for taking part in this debate. I should particularly like to thank my noble friend for his vigorous support and for his common-sense speech. He likened the repeal of this section to a common-sense approach. The noble Lord, Lord Ponsonby, made two points: first, he would support the Bill if he really thought that there would be a benefit to the industry. He went on to say that he felt that Section 15 made certain that there was a minimum employment standard. I think that my noble friend demolished that argument when he said that British Airways' standards were, in certain cases, above those of the independent airlines. I do not wish to get into a dispute about the unions and the Government and what undertakings were given. This of course is a Private Bill and I should like to see it go forward, hopefully with the support of the House.
7.45 p.m.
On Question, whether the said Bill shall be read a second time?
Their Lordships divided: Contents, 65; Not-Contents, 23.

DIVISION NO. 3

CONTENTS

Avon, E.

Bolton, L.

Beaumont of Whitley, L.

Boyd-Carpenter, L.

Bellwin, L.

Bridgeman, V.

Beloff, L.

Campbell of Alloway, L.

Belstead, L.

Cathcart, E.

Boardman, L.

Coleraine, L.

464

Colville of Culross, V.

Lindsey and Abingdon, E.

Cork and Orrery, E.

Long, V.

Cottesloe, L.

Lyell, L.

Craigavon, V.

Mansfield, E.

Crathorne, L.

Marley, L.

Croft, L.

Mersey, V.

Cullen of Ashbourne, L.

Monson, L.

Denham, L.

Mongtomery of Alamein, V.

Drumalbyn, L.

Mottistone, L.

Dundee, E.

Murton of Lindisfarne, L.

Elles, B.

O'Neill of the Maine, L.

Elliot of Harwood, B.

Platt of Writtle, B.

Elton, L.

Ridley, V. [Teller]

Evans of Claughton, L.

Romney, E.

Fortescue, E.

St. Just, L.

Gibson-Watt, L.

Saltoun, Ly.

Glanusk, L.

Sandford, L.

Glenarthur, L.

Sandys, L.

Greenway, L.

Stedman, B.

Harvington, L.

Stradbroke, E.

Hatherton, L.

Tordoff, L.

Inglewood, L.

Trefgarne, L.

Kilmany, L.

Trumpington, B.

Kinnaird, L.

Vaux of Harrowden, L.

Kinnoull, E. [Teller]

Wigoder, L.

Lane-Fox, B.

Wynford, L.

Lauderdale, E.

NOT-CONTENTS

Birk, B.

John-Mackie, L.

Bishopston, L. [Teller]

Listowel, E.

Brockway, L.

Llewelyn-Davies of Hastoe, B.

Cledwyn of Penrhos, L.

[Teller]

Collison, L.

McCarthy, L.

David, B.

Northfield, L.

Davies of Leek, L.

Peart, L.

Elwyn-Jones, L.

Ponsonby of Shulbrede, L.

Fisher of Rednal, B.

Strabolgi, L.

Howie of Troon, L.

Underhill, L.

Jacques, L.

Wells-Pestell, L.

Jeger, B.

Willis, L.

Resolved in the affirmative, and Motion for Second Reading agreed to: Bill read a second time, and committed to a Committee of the Whole House.
Lord Sandys: My Lords, I beg to move that the House do now adjourn during pleasure until 8 o'clock.
Moved accordingly and, on Question, Motion agreed to.
[The sitting was suspended from 7.53 p.m. to 8 p.m.]

Local Government (Miscellaneous Provisions) Bill
House again in Committee on Schedule 3.
Lord Jacques Lord Jacques moved Amendment No. 40:
Page 64, line 5, after ("considering") insert ("whether any and if so").
The noble Lord said: As it stands, sub-paragraph (4) of paragraph 24 suggests that, if in any locality there are several existing premises for which licence applications are made, at least one must be granted. On 3rd February in the other place, at columns 336–7 of the Official Report, the Minister made the point that existing premises would have no right to a licence, but would have preference over new applicants. This amendment gives effect to what is apparently intended. I beg to move.
Lord Belstead: I am not sure that this quite gives effect to what, on behalf of the Government, I was saying was our objective. The effect of the amendment proposed by the noble Lord, Lord Jacques, would be that a licensing authority would have to give preference to these premises in the actual process of considering applications. I think that the amendment is misconceived, because paragraph 24 of Schedule 3 does not come into play unless the licensing authority is intending to approve some applications. It is unnecessary, therefore, to provide by implication, as the amendment does, that it may decide to approve none. As a result of agreeing with Amendment No. 31, which the Committee has done, I think we have provided that a licensing authority may conclude that nil is the appropriate number of sex establishments in a particular locality. But it is wholly undesirable, in any case, to imply that existing premises should not have to be judged by the same standards as would be applied to future premises. It would be a result of this amendment that a licensing authority would be under an obligation to issue a licence to an existing business when on strict merits it might not do so. I am absolutely certain that that is not the result which the noble Lord, Lord Jacques, wishes to bring about. I think that my interpretation of the words which the noble Lord wants to insert into the Bill is the correct one. I wonder whether the noble Lord would like to have a look at what I have said, because, if I am right in my interpretation, then I think the effect of his amendment would be one which he would not want to achieve.
Lord Jacques: Is the Minister stating that the objective which I am seeking can be attained without this amendment, because of Amendments Nos. 31 and 39?
Lord Belstead: Yes, I am suggesting that these words are not necessary.
Lord Jacques: In that case, I will study what the Minister has said and, if necessary, come back at Report. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Belstead Lord Belstead moved Amendment No. 41:
Page 64, leave out lines 16 to 22.
The noble Lord said: This amendment is consequential on Amendment No. 14, which I moved on the first day of Committee. I beg to move.
On Question, amendment agreed to.
Lord Belstead Lord Belstead moved Amendment No. 42:
Page 64, line 22, at end insert—
("Commencement of Schedule.
.—(1) So far as it relates to sex cinemas, this Schedule shall come into force on such day as the Secretary of State may he order made by statutory instrument appoint, and accordingly, until the day so appointed, this Schedule shall have effect—

(a) with the omission—

(i) of paragraph 2 above; and

(ii) of paragraph 12(3)(e) above;

(b) as if any reference to a sex establishment were a reference only to a sex shop; and

466

(c) as if for paragraphs (a) and (b) of paragraph 12(2) above there were substituted the words "for different kinds of sex shops".

(2) Subject to sub-paragraph (1) above, this Schedule shall come into force on the day on which this Act is passed.
(3) Where, in relation to any area, the day appointed under sub-paragraph (1) above falls after the day specified in a resolution passed under section 2 above as the day upon which this Schedule is to come into force in that area, the day so appointed shall, for the purposes of paragraphs 23 and 24 above, be the appointed day in relation to sex cinemas in the area.").
The noble Lord said: Your Lordships will no doubt recall that the Government have said at each stage of the Bill, from the time when this matter was first raised at Committee stage in another place, that they would wish to reconsider whether the proposed controls in Schedule 3 should apply to cinemas. The Greater London Bill, on which Schedule 3 is broadly based, was prepared before my honourable friend the Member for Fareham, Mr. Peter Lloyd, introduced his Cinematograph Bill into another place. The provisions relating to sex cinemas in the present schedule are directed at the same establishments as the main proposal in that Private Member's Bill. These are the so-called cinema "clubs", which are to be found in considerable numbers in central London and, to a lesser extent, in other large cities and towns.
These premises, by masquerading as clubs, are able to take advantage of an exemption in the Cinematograph Act 1952, which enables them to avoid having to comply with the film censorship and safety requirements which apply to other commercial cinemas. As a result, these premises are able to show films of a kind which would not receive a certificate from the British Board of Film Censors. The main purpose of the Bill in another place is to end that, and it is proposed that the present exemptions from cinematograph licensing should be qualified by a new test of whether an exhibition is "promoted for private gain". That is the test in Mr. Lloyd's Bill. Thus the commercial cinema clubs would require a cinematograph licence, and the cinema licensing authority would be able to impose the usual film censorship requirements.
The Government, who are actively supporting my honourable friend's Bill, believe that it provides the most satisfactory and most logical method of tackling that practice. These premises are—to use the words of this schedule—sex cinemas only because they are able to avoid cinematograph licensing. If that is remedied, then there would be no need to subject these premises to a further licensing system, any more than in the case of ordinary commercial cinemas. Indeed, paragraph 2(2)(a) of the schedule ensures that this would not happen, since there is an automatic exemption for premises which have a cinematograph licence.
As your Lordships will appreciate, the argument that I have just been advancing would tend to support the conclusion that the reference to sex cinemas in the present Bill should be deleted altogether, rather than, as we propose in the amendment, retained and brought into force on a different date from the provisions relating to sex shops. We have, however, discussed this matter with representatives of local authority associations and we are persuaded that there ought to be the provision of a long-stop. We cannot, of course, say with certainty how the courts are likely to interpret the provisions of the Cinematograph Bill

467
in another place—assuming that it becomes law—in respect of the promotion of exhibitions for private gain. We have no reason to think that the Bill in another place will not prove wholly satisfactory as a means of dealing with bogus clubs, if it becomes law. It is conceivable, however, that exhibitions might be given in other circumstances which might not so clearly fall within the scope of that Bill and which could, if necessary, be dealt with under the provisions in the schedule to the present Bill, which deal with sex cinemas.
If I may give one example of what I mean, you could have the practice of showing a video-cassette free of charge at the back of a sex shop, supposedly with a view to the sale of the cassette. Our view is that this would be caught by the Cinematograph Bill. But the sex cinema provisions in this Bill would act as a safety net. If such a circumstance arose, Schedule 3 would obviously be useful. Even if, in the light of experience, the provisions proved wholly redundant in practice their retention would cause no harm.
Accordingly, the Government are proposing that the sex cinema provisions should remain in the Bill, subject to making suitable provision, which is the purpose of the Government's amendment, to ensure that no difficulties are caused by the overlapping of this Bill and Mr. Peter Lloyd's Private Member's Bill, if it becomes law. It would be nonsensical if, as a result of the present Bill coming into force before the Cinematograph Bill, local authorities had to spend time considering applications for sex cinema licences if the premises concerned were to become subject only a few months later to cinematograph licensing which would then exempt them from the sex cinema licensing provisions.
The proposed new paragraph avoids this difficulty by providing that the sex cinema provision of the schedule shall be brought into force by order. The intention of my right honourable friend the Home Secretary would be that the operative date for these provisions would be the date of the coming into force of the Cinematograph Bill. This might be expected to be in October or November. If of course the Cinematograph Bill failed to reach the statute book, the provisions of this schedule would be brought into force at the earliest possible date. I should emphasise that none of this affects the arrangements in respect of sex shops. In respect of these premises, the schedule will come into force on Royal Assent.
It may just be helpful to add that the technical provisions in sub-paragraph (1)(a)(b) and (c) and in sub-paragraph (3) of the new paragraph simply ensure that the necessary alterations are made to the schedule to allow for the period between the coming into force respectively of the sex shop and sex cinema provisions. I apologise for that long explanation, but I think several of your Lordships have been wondering exactly what provision is to be made so far as sex cinemas are concerned now that this Private Member's Bill is coming from another place. I hope that my explanation has clarified the Government's thinking on this matter. I beg to move.
Baroness Birk: I thank the Minister for that very clear exposition of this amendment, but I have a certain
468
number of doubts about it. I am worried about it because it would create two systems of licensing, not always within the same authority. This will provide a series of potential loopholes for the industry to exploit. The cinema legislation will essentially be about the safety of cinema premises. I should have thought that the members of this Committee would agree that the appropriate place for the control of sex cinemas is in the legislation on sex shops because it is one of the sex establishments, as defined in the Bill. There have been problems with the dual licensing of such premises as licensed clubs, and we should not want those problems to be introduced here.
The proposed powers of this miscellaneous provisions Bill are concerned with different matters: primarily the numbers and the suitability of the location of sex establishments within a local authority's area. Because of this, the London Boroughs Association is seriously concerned that if sex cinemas are not included within the Bill which we are discussing tonight several consequences will follow.
First, in Greater London as opposed to the rest of the country no one authority will have an overview of the numbers of sex establishments in its area. One of the principal matters which have been discussed at great length this evening (and also last Thursday) is the whole system of control by licensing. Clearly this is of particular interest to an area like Westminster where in Soho there is a heavy concentration of sex establishments within a confined area. More often than not, you get several kinds of sex establishments occupying one building. There is the multiple building with a sex shop, a sex cinema and even one of these sex encounter places, which many of us learned about the other day for the first time. In the rest of the country, although the district council will be the licensing authority under both the miscellaneous provisions and the Cinematograph Acts, when they are passed, because of the different matters with which those two systems are concerned the view has been expressed by the Association of Metropolitan Authorities that there could be difficulty within authorities for the same reason.
The separation of licensing controls in Greater London between the borough and the Greater London Council provides a loophole which is almost certain to be exploited by those involved with the industry. The loophole is that proprietors will seek to justify the use of video booths on the basis that they are for previewing cassettes which are available for sale in the sex shop below. Thus, these will escape the need to be licensed under the Cinematograph Bill. I do not think that this is so important a consideration as the last one: that because of the separation of the two, the licensing authority for sex shops will be unable to have regard to the number of sex cinemas already operating in its area when considering whether to grant the particular sex shop licence. As noble Lords who have taken part in the debate up to now have been very concerned about the number of sex establishments in the area, it seems to me that it will be counter-productive to what is intended.
It may be that the Minister will say that the provisions of the miscellaneous provisions Bill as drafted will in any event exclude premises licensed under the Cinematograph Bill. If therefore the present Bill to

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which the Minister referred became law, such premises would be outside the scope of the miscellaneous provisions Bill. That may be so, but it is not beyond the efforts of the parliamentary draftsmen to make sure that this point is picked up in the drafting of the Bill. It is for these reasons that I have a number of doubts about what is being done about this at the present time.
8.17 p.m.
Lord Belstead: I am grateful to the noble Baroness for picking up these points. I know that my explanation was long and not entirely easy to follow. It enables me, much more briefly, to make two or three main points. First, the whole point of the Cinematograph Bill, the Private Member's Bill which Mr. Lloyd in another place is promoting, would be to make these bogus cinema clubs subject to an existing, well-established licensing system which gives the cinema licensing authority—the district councils and in London the Greater London Council—complete control over what may be shown. Cinema licensing enables the licensing authorities which I have just mentioned to control the films exhibited. A sex cinema could be a sex cinema only if the cinema licensing authority allowed it to be. The logical course therefore is to control cinemas by means of cinematograph licensing, and it is with this Bill coming along from the House of Commons that the opportunity for that to be done presents itself.
That makes it sound as though one should say: Why do the Government consider that there should be any of the provisions in Schedule 3 to deal with sex cinemas? Why not do away with them? However, the local authority associations wish to retain the sex cinema provisions in this Bill, even though they are likely to be largely redundant. Their main concern, as I tried to explain, is that the Cinematograph Bill may not catch exhibitions of films or cassettes which it is claimed are not being promoted for private gain, which is the test being introduced by Mr. Lloyd's Bill: in particular why an exhibition is said to be given as a free service for customers attending the premises concerned. That is the reason why we are keeping in being the sex cinema provisions in Schedule 3.
The final point I would make is that having decided that the sex cinema provisions in Schedule 3 should be retained, it is a question of how you interleave them with the coming into effect of the Cinematograph Bill from another place, if and when that Bill becomes law. We are most anxious to avoid putting local authorities in the position of having to consider applications under Schedule 3 in respect of cinemas when those premises would become subject to cinema licensing a few months later after Mr. Lloyd's Bill comes into effect.
For that reason we have an order-making power which we intend to use, as I explained, to bring the sex cinema provisions of Schedule 3 into effect simultaneously with Mr. Lloyd's Cinematograph Bill. I have explained briefly what the Government are after in moving this amendment, and I hope that the apprehensions felt by the noble Baroness may perhaps have been stilled somewhat.
Baroness Birk: While I thank the noble Lord the Minister for that explanation, I am still concerned that
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there will be two types of licences running side by side. When talking about cinemas—and I am a governor of the British Film Institute—one does not think of sex cinemas as being part of the film industry; one thinks of them as being part of sex establishments. It seems to me that it would be better to keep them that way and avoid the duplication which concerns many people. I will not take this matter any further tonight; I will read carefully what the noble Lord the Minister has said, and if he has any further points to make, perhaps he will write to me and I may then consider whether I wish to do anything more at Report stage.
Lord Belstead: Certainly.
Lord Northfield: The noble Lord the Minister said that, in the case of an alleged abuse, the Private Member's Bill now in another place will introduce the test of showing for gain. Will this not simply lead bogus clubs into another subterfuge; will they not become more like real clubs, in which case the control will fail because the clubs will find ways of disguising their profits and will make people join for no apparent profit-making motive? There will be no control, and does this not reinforce the point made by my noble friend, that a different type of control is needed?
Lord Belstead: With respect to the noble Lord, Lord Northfield, this reinforces the local authorities' argument that we ought not to jettison the sex cinema provisions of Schedule 3. This amendment does not do that; it does not jettison the sex cinema provisions of Schedule 3. We are going to keep them on ice with an order-making power so that on the same day that the Cinematograph Bill passes into law these provisions relating to sex cinemas in Schedule 3 will be brought into effect, at exactly the same time. If by any chance Mr. Lloyd's Bill flounders in either House, then the sex cinema provisions of Schedule 3 would come into effect at the same time as the rest of this Bill.
Baroness David: It does seem to me rather a pity that we have to put up with all these antics because we have these two Bills going through at the same time. Can the noble Lord the Minister tell us when we may expect Mr. Lloyd's Bill to arrive in this House, and when the whole thing is likely to come to fruition?
Lord Belstead: I believe it is about to reach Report stage in another place. I meant, if I did not say it, that if all goes well the Bill will become law at the end of the parliamentary session, in October or November. But, as your Lordships' Committee will know, if a Private Member's Bill has a fair wind, it can become law earlier than that.
On Question, amendment agreed to.
Schedule 3, as amended, agreed to.
Clause 3 agreed to.
Schedule 4 [Street Trading]:
Baroness Fisher of Rednal Baroness Fisher of Rednal moved Amendment No. 43:
Page 65, line 5, leave out head (a).
The noble Baroness said: What we are asking in this amendment is that the sub-paragraph (2)(a) be deleted entirely. This will have the effect that certified pedlars will have to obtain licences or consents under the provisions of the district local authorities, where the provisions are adopted. It has been drawn to my attention, and experience has shown, that many street traders obtain a pedlar's certificate as a type of "protection" document which they can show the police on demand, as some form of authority for standing in the street and trading. If these exemptions for pedlars remain in the provisions, we can see the provisions regarding street trading quickly becoming worthless. There is nothing to stop the certified pedlar who wishes to operate in the streets or areas designated for street trading obtaining licences as a street trader as well as a pedlar. This is accepted practice and, from the information I have received, there do not seem to be any difficulties or complaints about such a procedure. I wish to stress that it is not the intention behind the amendment to call for the repeal of the Pedlars Act. We are only asking for this amendment in conjunction with street trading. I beg to move.
Lord Belstead: I do not believe that this amendment is necessary. The purpose of paragraph 2(2)(a) is to enable a bona fide pedlar acting as such to trade in a designated street. Otherwise, he would have to obtain both a pedlar's certificate and a licence or consent to do so. The Pedlars Act 1871 defines a pedlar broadly, as a person who goes from town to town or to other men's houses selling goods or offering for sale his skill in handicraft. In other words, he is an itinerant vendor of goods or services who solicits custom from members of the public. Whether a person is acting as a pedlar is a question of fact which the courts could determine.
If a person who already holds a pedlar's certificate sets up a stall in the street he is not peddling and he will require a licence or consent in a designated street. If he walks up and down in a designated street selling goods to passers by, he will need a licence or consent, as appropriate, in addition to his pedlar's certificate. But, if this amendment were accepted, it would mean that any holder of a pedlar's certificate would need to obtain a licence or consent to peddle from door to door in a designated street. Because, by definition, a pedlar is an itinerant trader who is unlikely to know precisely where he will be at any time, it seems to us that it would be both onerous and expensive, if not wholly impracticable, for a pedlar to obtain the necessary consents or licences to conduct his business. It is for those reasons that I believe this amendment is unnecessary. I believe it would prove very onerous to bona fide pedlars and it is on those grounds that I hope the noble Baroness will withdraw her amendment.
Baroness Fisher of Rednal: While I thank the noble Lord the Minister for that reply, it has been found extremely difficult to prosecute under the legislation in respect of the pedlar's certificate. Local authorities have experienced the greatest difficulty because the definition of movement normally allows the pedlar to operate as a street trader; because of the very fact that he walks ten, fifteen or twenty yards away from his stall. It is therefore extremely difficult for local
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authorities to bring a successful prosecution. I wish to reiterate that there was no suggestion of abolishing the certificate granted under the 1871 Act. Under the designation "street trader" there is normally no opportunity to peddle in the strict sense of the word, and it is for that reason that I moved the amendment. However, I will read what the Minister has said and, if I feel that I need to bring this matter up again, I will do so at Report stage.
Amendment, by leave, withdrawn.
Lord Belstead Lord Belstead moved Amendment No. 44:
Page 65, line 8, leave out ("held under a grant or presumed grant or") and insert ("the right to hold which was acquired by virtue of a grant (including a presumed grant) or acquired or established by virtue of").
The noble Lord said: This is a drafting amendment. I beg to move.
On Question, amendment agreed to.
Baroness Birk Baroness Birk moved Amendments No. 44A:
Page 65, leave out line 29 and insert—
("(i) exceed two metres in its vertical, or one metre in any horizontal, dimension;").
The noble Baroness said: This is a very tiny little amendment which I hope the Minister will find it possible to accept. Schedule 4 contains provisions for the regulation of street trading. News vendors are exempted under paragraph 1(2) provided they meet the requirements of paragraph 1(3), which in sub-paragraph (b) deals with the maximum measurement of permitted newspaper stall. In the view of the newspaper society which represents the news vendors, the maximum height permitted is too low. In a number of recent Private Bills containing provisions about street trading in specific areas they have successfully pressed for amendments to enable news vendors to have stalls 2 metres high, as opposed to the 1 metre referred to in the Bill at the moment, so as to protect themselves from the bad weather. It does seem a simple little thing, and if it helps the welfare of people standing out in the awful weather that we experience in this country I think it is something that could be agreed to without great difficulty. I beg to move.
Lord Belstead: To allow a newspaper stall which is 2 metres high instead of 1 metre would appeal to someone like myself very much indeed. I have great pleasure in accepting the intention of the amendment. Perhaps I can make the point that we must consult the local authority associations. On each of the provisions in the Bill we have endeavoured to do this. I am certain that there will not be any objections. If we are satisfied that the local authority associations have no objections, I give an absolute undertaking to introduce a suitable amendment on Report or to offer one to the noble Baroness. I am sure the noble Baroness will not mind if we also look at the drafting. I hope she will find that a suitable reply.
Baroness Birk: I thank the noble Lord very much indeed; I think it is a more than suitable reply. I think the noble Lord will find that this is present in the Derbyshire Bill. I do not imagine that he will find much argument from the local authority associations.

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Of course, I accept that the question of drafting remains with the Government. It is the substance I am concerned with. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
8.34 p.m.
Baroness Fisher of Rednal Baroness Fisher of Rednal moved Amendment No. 45:
Page 73, line 3, after ("may") insert ("not").
The noble Baroness said: In moving this amendment I think that what we have before us is a wide loophole in the provision, which in my view is most undesirable. One has to be concerned that paragraph 8 as presently drafted enables a large number of people to carry out street trading purporting to be employed by other licensed or consent holders, and this makes the whole matter of enforcement extremely difficult. While I would acknowledge that there might be some justification for a licensed trader who is operating from a single stall or a static position to have an assistant, careful wording is necessary so that the licensed trader is not abusing any provision by employing such persons, because he could quite easily abuse the provisions and his licence of consent by operating a number of stalls adjacent to the one that he is licensed for, with assistants on the others under the pretence that they are all assisting him in his trading. I think it would be safer in the definition to require that all those engaged in street trading be licensed holders or consent holders as appropriate. Therefore, our amendment is drafted to make it quite clear that a licence or consent holder may not employ assistants without a further licence or consent being required. I beg to move.
Lord Belstead: The noble Baroness expresses apprehension that the licensing controls may be misused; indeed, that a trader may use a licence to trade in a way that the licence does not allow. I wonder whether I could remind the Committee of the controls provided by the licensing system in this schedule. The licensing authority must specify in the licence the street in which, the days on which, and times between which, the licence holder may trade and the type of articles he may display for sale. In addition, the licensing authority may stipulate precisely where in the street his stall may be placed and how large it may be. It has power to require an applicant for a licence to submit two photographs of himself with his application. I really do not think under those circumstances it would be possible for a supposed assistant to set up a stall in another part of the market, for instance, or to trade at the wrong time or in the wrong goods, without the licensing authority being able to distinguish him from the licence holder.
It really does not alter the balance of trade in the market, or the space taken up by one licence holder, or the amount of refuse to be collected, if the licence holder has no assistant or one assistant or two. Nor does it affect the balance of trade in the consent street if the consent holder has assistants. I hope perhaps, for those reasons, the noble Baroness may agree that the intentions of the Government are in fact exactly the same as her own, which is to see that the eontrols are abided by.
Baroness Birk: Before my noble friend decides what to do, may I ask the noble Lord why in a previous list
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of amendments, which we had before us last Thursday, there is exactly the same amendment tabled by the Minister? Has he changed his mind in the meantime?
Lord Belstead: That was a printing error, and I was full of hope that it would remain because when we reached the amendment I was going to say, "Not moved".
Baroness Fisher of Rednal: Having listened to what the Minister has said, I am not really satisfied with that reply. Anybody who has any knowledge of street trading and market streets will know that they are always the biggest bone of contention to any local authority; they are always subject to fracas about who gets their first and whose position is best. They are not the places of harmony that the Minister seeks to explain to us. The very fact that the holder of the street trading licence or consent may employ any other person to assist him leaves the situation wide open for the person who gets there first to set up two stalls very close together. It makes the job of the licence holders extremely difficult when the fracas starts. Having listened to what the Minister has said, I am not happy. I will read what he has said, but I shall most likely raise it again on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 4, as amended, agreed to.
Clause 4 [Closing hours for take-away food shops]:
Lord Evans of Claughton Lord Evans of Claughton moved Amendment No. 45A:
Page 3, line 10, at beginning insert ("Subject to section 5(1) below").
The noble Lord said: The first amendment of this group, No. 45A, is in fact a purely technical amendment which I hope will be acceptable to the Government. I would like, however, to speak to the next two amendments, which are substantial. Perhaps I may inquire whether the noble Lord the Minister agrees with me that No. 45A is a purely technical amendment and a great improvement on the previous drafting?
Lord Belstead: I agree entirely that it is a technical amendment. I disagree totally that it is an improvement.
Lord Evans of Claughton: In that case, with the permission of the Committee, I shall speak to Amendments Nos. 45A and 45B. I am sure that in years to come the noble Lord, Lord Belstead, will regret the hasty remark he has just made. I have put down these amendments about the control of refreshment premises not to challenge the Government's proposals to license and control the opening hours of refreshment premises—I think that it is a good thing that that should be in the control of local authorities—nor, indeed to challenge the compromise that I understand has been reached in another place about the earliest hour to be specified for closure of premises serving take-away food. The Bill originally proposed that it should be 11 p.m. and the Take-Away and Fast Food Federation—I feel much more at home talking about food than about

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sex—and other bodies wanted, and would still prefer, to have 1 a.m.
It is a fact that most business in these kinds of premises is done between 11 p.m. and 1 a.m. However, I think that it would be wrong to challenge the compromise reached after some discussion and in any event I take the view, which I expressed on Second Reading, that the local authorities are the best qualified to make the judgments when fixing the licensing hours for the opening of these premises.
None the less, I do not think that anyone in your Lordships' Committee would challenge the concept that take-away and fast food shopkeepers and tenants fulfil a very considerable need. They are generally very hardworking; they are enterprising and they are independent. I should have thought that they had all those qualities of the small trader, the small entrepreneur, to which this Government pay frequent lip service.
My amendments, therefore, seek to simplify the procedure and give some protection to those traders and ensure that they enjoy—and these are words which I apologise for using once again—the benefits of natural justice in defending their livelihoods. They are amendments which I would have thought—indeed, which I would have hoped—would commend themselves to your Lordships' Committee. As I have said already, the first amendment, No. 45A, is purely a matter of technical accuracy.
The second amendment, No. 45B, which I think it would probably be helpful to deal with at the same time, substitutes for the word "desirable" the word "necessary" to provide, in my view, a more rigorous and searching test of the circumstances in which a closing order can be made by a local authority. My reasons for doing that are twofold. First, my own experience, and I think the experience of people in the trade when dealing generally with the licensing duties of local authorities, is that local authorities are, broadly, not sufficiently careful of the circumstances in which this sort of power is exercised. I understand that the present wording is the same as that in the Late Night Refreshment Houses Act 1969, and from the experience of that Act it would cause considerable alarm and concern if it were imported into this Bill. Because of my second reason the courts are more reluctant to submit to judicial review decisions which contain a substantial element of policy, the substitution of the words I suggest would make the exercise of the powers contemplated more capable of judicial review. We discussed the grounds earlier today. These people are protecting their livelihood and performing a useful function and I should have thought that we would have gone to a lot of trouble to give every opportunity to the proprietors and tenants of take-away food shops to ensure that they do not suffer injustice and possibly loss of trade, and even bankruptcy, by a decision reached without a proper opportunity for judicial review of that decision. Therefore, although the first amendment standing in my name is a technical amendment, I beg to move.
Lord Belstead: The reason why I disagreed with the noble Lord about the merits of his first amendment, No. 45A, is that in this and, indeed, in succeeding
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amendments, the noble Lord, Lord Evans, is endeavouring to bring the wording of Clause 5 into Clause 4. I am advised that this is unnecessary.
Clause 4 sets out the general power for district councils to make closing orders. Clause 5 sets out the procedure and provides for appeal. I am advised that there is no need for the two clauses to be amalgamated.
I should like to deal first with the second of the noble Lord's two amendments—namely, Amendment No. 45B. This again is an attempt to run Clause 5 into Clause 4. The wording of Clause 4 in this respect follows the formula set out in Section 7 of the Late Night Refreshment Houses Act 1969 which empowers a district council to restrict the late night opening of a licensed refreshment house by means of a condition to the licence.
We have no evidence that the use of the word "desirable" has caused any difficulty in the interpretation of the 1969 Act. We are unconvinced that this amendment will achieve the effect that the noble Lord desires. For the sake of uniformity—which I think is not an unreasonable thing to want so far as drafting is concerned—we would prefer the word "desirable" to be retained. However, it does occur to me, looking at the second amendment, that the noble Lord is actually doing that because he is cutting the words,
"take all relevant circumstances into consideration",
out of Clause 5 by an amendment which he has yet to move—Amendment No. 45F. That, of course, is a matter for the noble Lord. But if that amendment is not made then I really do not see the slightest need to start importing words from the next clause into this clause. In saying that I do not think that the Government's objectives and the noble Lord's objectives differ, because what in essence we are saying is that the words which the noble Lord is trying to transpose in Amendment No. 45B are there on the face of the Bill, but they are in Clause 5 and not in Clause 4.
Lord Evans of Claughton: The advice which I have is that the retention of "desirable", which is the wording in the 1969 Act, has caused difficulty and that that is the experience of people who have had to deal with it. I do not think, with respect, that the Minister has dealt with what I think is the substantive point of the second amendment—namely, that the word "desirable" makes it much more difficult for the decision of the local authority to be reviewed. This is what really worries me. We are dealing here not with very big multi-organisations, but with small businesses which may very often be losing their livelihoods, or part of their livelihoods, because they have not been able to have an adequate opportunity to put forward their views at a judicial review of the refusal of the local authority to grant them a licence, let us say, after 12 midnight to I a.m. or for whatever period they particularly want it.
If I may say so—without, I hope, causing unforgivable anger—it is a rather inconvenient procedure that the Government have adopted, because they tend to dodge about with their definitions between Clauses 4 and 5, and one finds it very difficult to find the definitions for the parts of the Bill scattered in the different subsections of Clause 4. I should have thought that

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as a matter of drafting this could have been made tidier. Possibly one of the reasons why I am having difficulty, and why members of the organisations which have been discussing this with me have been having difficulty, is that they are not clear in their minds as to what will occur if this Bill, as at present drawn, becomes law.
I should have thought that possibly there is need for some tidying up of the drafting, which may resolve my problem. Possibly at this stage it may be as well if I ask to be given leave to withdraw this amendment so that the matter can be looked at again because, as a lawyer, I find it very difficult. The people advising me, who are also lawyers, are finding that there are many confusions in this. Life is difficult enough for the small traders of the type we are discussing without them having to spend a great deal of their time taking legal advice as to what their standing is and what their chances are of having a licence refused. Therefore, I think that the best course will be to withdraw the amendment at this moment and to consider the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 45B not moved.]
8.51 p.m.
Lord Evans of Claughton Lord Evans of Claughton moved Amendment No.45C:
Page 3, line 31, at end insert ("and shall be such as are reasonable having regard to all relevant circumstances").
The noble Lord said: This amendment seeks to insert at the end the words:
"and shall be such as are reasonable having regard to all relevant circumstances".
I propose that your Lordships' Committee might accept these words, again, on the ground—and I am getting quite embarrassed about this—of natural justice in order to ensure that a closing order cannot automatically be made for the maximum period—namely, from midnight to 5 a.m. It reflects the concern of very many traders that local authorities might exercise their powers, not in a discerning way, looking at each takeaway food shop individually on its merits, but making their decision on a blanket basis without any discrimination between one premises in one area and other premises in another area, and without considering the level of complaints that they have had or the quality of the management of these premises. It is to this end that I move Amendment No. 45C. I beg to move.
Baroness Ewart-Biggs: Very briefly, I should like to support the noble Lord, Lord Evans of Claughton, in, as I see it, this procedural safeguard. One must remember that often these take-away foodshops are a one-man business, with someone working 12 to 14 hours a day. He does not really have time to protect himself, find out about it all and take the council to court. So I think that he needs things to be made very plain.
On the other side, one must hope that the needs of the many will not be undermined by the complaints of the few. There is very great proof that these shops are used and needed by very many sections of the community. Not only are they used and needed by people working irregular hours, but, as I said on Second
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Reading, for a great many young people it seems a marvellously harmless occupation to go to the takeaway food shop; many hardworking mothers send their children out to collect their supper for a very small return. As I say, I hope that the needs of the many will not be undermined by the complaints of the few. Therefore, I should like to support the noble Lord in his efforts to safeguard these small food shop keepers in their efforts to keep their businesses going.
Baroness David: I am sorry to bring a perhaps discordant note from this side of the Committee, but I am rather worried about this. Having represented an area in Cambridge where there are a great many take-away food shops and living very close to an area where there are still a great many food shops, I think that it is necessary to have some control. Although some may be one-man businesses and so on, I think that there are also some chains. When I look at the glossy brochure which has been provided with briefing for these amendments, I am just a tiny bit suspicious about this. So I shall wait to hear what the Minister has to say. But for the moment I am not at all sure that I shall be supporting the noble Lord, Lord Evans, in his amendment.
Lord Belstead: Perhaps it would be worth my saying this very briefly. Speaking personally and also speaking from this Dispatch Box, I have nothing but goodwill for those who provide late night refreshments. I, personally, have been the beneficiary of late night food shops on many occasions, in various different ways. The Government have tried to make it clear that they have no antipathy towards these shops by relaxing the suggestions which were made in another place for the closing procedure, which, of course, again, I should like to underline is discretionary and can only be brought into effect if people living in the neighbourhood complain on the specific ground of disturbance.
I do not like the words "closing order" because it sounds as though something is being closed. In fact, it means that at the earliest time of midnight—and that is the earliest—a rule may be made that a late night food shop shall be closed. It would not necessarily have to be the same hour on all days of the week; it could be at different times, and it might be that such an order would not be made at all. In many areas such orders might not be made. It is right that the Government should make clear their attitude at the start of the Bill. With respect, I thought that the noble Lord, Lord Evans, and the noble Baroness, Lady Ewart-Biggs, were rather speaking as though an order would not have regard to "all relevant circumstances". Those words, in essence, are there on the face of the Bill in Clause 5, when we come to the procedure. Unless someone moves an amendment to take them away, those words are there for all to see.
When the noble Lord, Lord Evans, spoke about natural justice, although, of course, judicial review would be available in these cases, surely it is more realistic to look at the right of appeal on the merits to a magistrates' court and thence to a Crown court, and all of that is in Clause 5.
Therefore, I say to the Committee, let us not talk as though those words were not on the face of the Bill—that is, of course, unless Amendment No. 45F, in the name of the noble Lord, Lord Evans, is agreed to. The

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difficulty about the debate that we are having is that the noble Lord, Lord Evans, has tabled Amendment No. 45F, which we have not yet reached, and, for reasons which will become apparent when the noble Lord moves the amendment, he proposes, in fact, to cut these words out of the Bill. I suggest that we ought to keep those words, which show that the procedure will be absolutely fair, where they are when we come to the correct clause for dealing with procedure and appeals which is Clause 5.
Lord Evans of Claughton: I do not seek to debate the matter in general. I am trying to suggest to your Lordships—which perversely you refuse to see—that, in making a decision about whether people shall have a licence for the period between 12 midnight and 5 a.m., it would be preferable that it was seen that they had it at the point in Clause 4. However, if the noble Lord the Minister is assuring me—as I believe he is—that, in fact, no such position would arise with regard to the licence-holders, unless all the relevant circumstances had been taken into account—and I think that is the assurance he gave me?—
Lord Belstead: Yes, indeed.
Lord Evans of Claughton: In that case, I am willing to withdraw the amendment, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Evans of Claughton Lord Evans of Claughton moved Amendment No. 45D:
Page 4, line 5, leave out ("3") and insert ("2").
The noble Lord said: In moving Amendment No. 45D, two years has been substituted here instead of three years as the period when the closing order shall cease to have effect. If a closing order is, as envisaged by the Bill, made for three years, there will inevitably be a rush of applications for variation orders which would create a huge burden on the courts and the local authorities. I am convinced that such variation orders will be sought if licensees do not get the kind of hours they are seeking to remain open to serve their customers.
Under the comparatively recent Greater London Council Act 1968 one year was the time inserted, and this seems from the advice I have received to have received widespread support from local authorities in that area, providing in effect, as it does, an annual review of the restrictions, so that people who have the problems that the noble Baroness, Lady David, mentioned will have an opportunity annually of challenging the licences of premises.
The amendment that I have put down provides for two years, because this clause seeks to make it three years before the matter is reviewed. The Greater London Council Act makes it one year. The preferred length of time from the traders' point of view would be one year, but as a compromise and in order perhaps to retain the benefits of a review not annually but every two years, and to get rid of the serious danger of the clogging of the machinery by continual applications for variation orders, I would suggest that two years might be a suitable compromise in this case. I beg to move.
Lord Belstead: In proposing that closing orders should remain in force for a finite period we think it right that the continuing need for a closing order should be reviewed from time to time. We consider that three years is a reasonable period for an order to lapse unless renewed, given that in most cases the circumstances which give rise to the need for a closing order are unlikely to change substantially during that time. Of course, if they do, then, as the noble Lord has said, it will be open to the keeper of the premises to apply for a variation order.
The opposition of the Government to this amendment is based mainly on the need to reduce the administrative burden on councils in remaking orders. The noble Lord said that he feels it would work in the opposite direction; that in fact by having the three-year period there would be a rush for variation orders. I should like to think about this if the noble Lord would agree to withdraw the amendment. I cannot give any commitment, but I think it would be churlish not to say that we will consider the argument that the noble Lord has put forward, and that indeed I would be prepared to do.
Lord Evans of Claughton: I thank the noble Lord for his consideration. I know that there is no commitment, and on that basis I will willingly, with leave, withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Evans of Claughton Lord Evans of Claughton moved Amendment No. 45E
Page 4, line 14, at end insert ("or if that person is employed by a body corporate means that body").
The noble Lord said: I rise with enormous confidence to move this amendment because I am sure that the noble Lord the Minister cannot find any reason to oppose this, since all one is seeking in this amendment is to add the words:
"or if that person is employed by a body corporate means that body".
I am sure your Lordships will be aware that if a company controls premises, very often take-away food premises, the company should receive notification of a proposed closing order and would themselves, as a company and as the owners, be able to make application for variation orders or revocation. As at present drafted, the clause requires that the person who has the conduct or management of the premises would be the person who receives notices and who takes the actions to which I referred.
This may mean from one's experience, and I am sure from an objective view of what does happen in day-to-day management of premises of this kind, that a notice which is received by a manager may very well and very often be never received by the company which would make the appeals, or make the applications, and which is the one really responsible. Therefore, in many cases a perfectly valid opportunity of seeking a licence or a variation order, whatever the owner wishes to do, would not be possible for him because he would never receive the notice. Therefore, I would have thought that this was a reasonable amendment to ensure that if the premises are controlled by a limited company then it is the company that should receive the notices. I beg to move.
Lord Belstead: I am glad that the noble Lord has moved this amendment because it is important that I should have the opportunity to clarify the wording of the Bill at this particular line. I am advised that the amendment is unnecessary for these reasons. By virtue of the Interpretation Act 1978 the word "person" in the definition of "the keeper" in Clause 4(10) already includes a body corporate. Secondly, where a body corporate controls a take-away food shop through a manager it is the body corporate and not the manager who would be the keeper, and therefore, for example, would be able to make representations and appeal to the courts. I hope that that assurance in fact clarifies the apprehensions that the noble Lord has, and that maybe it will enable the noble Lord to withdraw the amendment.
Lord Evans of Claughton: Yes, indeed. I am glad, and I know that others will be glad, to hear that, and that the people who will now receive notices will, under the terms of the Interpretation Act, always be a limited company if such is the owner of the premises. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 4 shall stand part of the Bill?
9.8 p.m.
Lord Beaumont of Whitley: I wish to make a few remarks about the clause as a whole, and I should preface them by saying that like, it appears, every other Member of this Committee, I patronise fast food shops. It is interesting to see the notable rush there is to pay patronage to fast food shops after dinner compared with the shops we were considering immediately before dinner. Maybe it is the relative weight which a Committee comprised of the average age of noble Lords puts on the sins of lust and gluttony.
I wish to comment on the compromise which has been reached on the minimum hours of closing, the earliest hour at which closure should be made. Obviously, if we are having to make a choice between 11, 12 and 1 o'clock, another place has been wise to go for the compromise in the middle, and that seems reasonable. This is a moment, however, at which briefly to protest at the fact that we have to make such decisions at all. It is a sign of the lack of commitment to local government in this country now—and growing worse, I fear, all the time—that we take more and more things away from local government and decide them for them, even down to the earliest hours at which fast food shops have to close. It is ridiculous. We should trust local government to make up their own minds on that kind of matter.
Probably if we took a very sensible step—a step to which my party is committed—which is the abolition of the ultra vires rule as regards local government, we should find that nine-tenths of the Bill, on which we are spending a great deal of time, would be unnecessary. It is important that we should devolve as much power as possible to the people on the spot so that they may make up their own minds about what should happen to petty regulations, and it is a great pity that we ever wrote those sort of hours into the Bill.
Lord Belstead: Perhaps the noble Lord, Lord Beaumont, was not in his place on Second Reading, otherwise he would be aware that this has nothing to do with taking away power from local government. On the contrary, the whole Bill is produced with the support of the local authority associations to prevent the need for the associations having to produce their own local government measures when their private legislation falls as a result of the Local Government Act 1972. At the same time, incidentally, it will mean that the parliamentary timetable in both Houses will have less to deal with in the form of private legislation. I would also point out that Clause 4 is discretionary; so if a local authority does not wish to adopt the clause, it has no need to do so.
Lord Beaumont of Whitley: The Minister misunderstood me. I did not for a moment say that we were taking away powers from local authorities, and I know perfectly well what the Bill is designed to do. The real trouble is that it is designed to give local authorities powers which should be theirs by natural right already. What is needed is not a Bill to give them this power and that Bill to give them that power as we think it up year by year as a new problem comes up, be it sex shops this year and fried fish shops the year after, or whatever may happen to arise. We should have a basic devolution Bill with basic devolution powers so that local government really have powers to organise their own matters. I assure the Minister I am under no apprehensions as to what the Bill is about.
Clause 4 agreed to.
Clause 5 [Closing orders etc.—procedure and appeals]:
Lord Evans of Claughton Lord Evans of Claughton moved Amendment No. 45F:
Page 4, line 20, leave out from ("shall") to ("order") in line 31 and insert ("not (except on application by the keeper) make either a closing order or a variation").
The noble Lord said: I think it would be convenient if I spoke at the same time to Amendments Nos. 45G, 45H, 45J, 45K and 45L. Basically the amendments that I am seeking to make and the words that I am seeking to insert in Amendments Nos. 45F and 45G are designed to ensure that the names and addresses of complainants are obtained as a matter of record and would be available in determining three questions: first, whether complaints have been made at all, since, as those of us in local government know, over the years there have been cases when trumped-up complaints have been made—it might shock your Lordships to hear that, but it has happened; secondly, whether complainants are residents in the neighbourhood of the premises to which the order, if made, would relate; and thirdly, what exactly the complaint is and whether it is sufficiently serious to justfy making a closing order.
There can be a kind of general stirring up of objections and, as Members of the Committee will know, people will sign almost any petition very often in their own name, but quite frequently by using names such as the "Duke of Wellington", the "Archbishop of Canterbury" and other names of that nature. If one has been in local government for any length of time, one looks upon petitions with a pinch of salt, unless they set out the names and addresses of petitioners and state the nature of the complaint being made.
Amendment No. 45J seeks to close what I am advised would appear to be a loophole which could adversely affect a keeper of take-away food premises. By minutely altering the hours during which a closing order is in force, in favour of the keeper of such premises, a district council could have obtained a variation order which would automatically have extended the existing closing order for a further three-year period over and above the original period, making perhaps five or six years before the closing order was reviewed. For instance, the original closing order may have required a keeper to close his premises at 12.30 a.m. and there may then be made a variation without his request to 12.35 a.m. This may seem to the Committee a quibbling amendment but nevertheless when people's livelihoods are in issue it is important that the noble Lord the Minister should look at this question again to reassure me that there is not such a loophole, or, if he concedes that there is, he should either accept the amendment that I propose (Amendment No. 45J) or perhaps suggest something that is more preferable.
With regard to Amendment No. 45K, the proposed words are inserted to enable the keeper to know the nature and details of the case that is made against him. The registration procedures of the Greater London Council (General Powers) Act 1967 provided for the practice whereby copies of the written statements of objectors to registration are required to be served on the equivalent to the keeper of the premises. I beg to move Amendment No. 45F, with which I have coupled Amendments Nos. 45G, 45H, 45J and 45K.
Lord Belstead: As I understand the noble Lord, this group of amendments is designed, first, to close what he perceives to be a loophole. I think the noble Lord considers that if Clause 5(1) is enacted as it stands at present, a district council may seek to extend the validity of closing orders by the making of a variation order which minutely alters the hours during which the closing order was in force in favour of the keeper. I really cannot see what councils would gain from acting in that way. If they were to do so, it would still be open to the keeper of the premises to apply for an even more favourable variation, or for a complete revocation of the closing order, and to appeal to the court if his application were not granted. If the court considered that the hours specified in the order were not justified, it could instruct the council to vary the hours.
What I am trying to emphasise is that there is no loophole here which can be exploited by a council wishing to prevent a keeper from having access to the courts. With the additional safeguards which the Government have inserted in the Bill and strengthened on Report in another place, we think that the operators of take-away foodshops have been given very good remedies to protect their livelihoods. On the other hand, it occurs to me that if Amendment No. 45F were made, we would have the really rather extraordinary situation of there being no opportunity for local residents to ask for a variation order at all.
With regard to the giving of names and addresses and details (which also comes within this group of amendments) the provision that complaints from residents in the neighbourhood have to be made was intended when it was inserted in another place to prevent a council
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from deciding, for instance, to make an order in the absence of any complaints. The complaints provision is intended simply to trigger off the procedure. But the complaints have to be made; otherwise there is no question of a closing order even being considered. Then the council is still required to take into consideration all the relevant circumstances, including the representations made by the keeper of the premises.
The reason why in Clause 5(5) we have made provision that a council shall not reveal to the keeper the names and addresses of the complainants unless they have given their consent, is to protect them from possible harassment, which might happen if they lived in property owned by the proprietor of the shop concerned. I think that the Committee will agree that these people, too, are entitled to the protection which the Bill seeks to afford the public, and that is the reason why the Government feel that they could not accept the deletion of subsection (5) of Clause 5, which is one of the things which would occur by way of this group of amendments.
I should point out that under Clause 5(2)(b)(i) the council must when giving the keeper notice that it is proposing to make a closing order, give him its reasons for seeking to make the order. So it cannot be said that the keeper will not know the case against him, and, of course, as the Bill shows, he can then make representations. I hope that it does not sound unfair or as if it is looking at the matter from only one side. I think it is an equitable way of looking at it. If I may come back to the original and first amendment, I do not think there is a loophole there, in Amendment No. 45F, for the councils to behave in a way which the noble Lord rather feared. If they did, then they would be subject to instruction by the courts.
Lord Evans of Claughton: That assurance with regard to the first amendment is very valuable and, I am sure, will give much relief to many of the proprietors of the premises that we are discussing this evening. However, I am genuinely very concerned about the business of complaints and signatures. I have been in local government for a quarter of a century, and I know that very many of the petitions and very many of the names that one sees on the petitions, very many of the signatories to petitions, are not deliberately inaccurate, but people will say almost anything, as I am sure the noble Lord, Lord Bellwin, knows.
I have a genuine concern. It is fair enough in the cut and thrust of politics, because you do a petition and I do a petition and if I get more signatories then I get elected and you do not. But here we are dealing with people whose livelihoods are at stake, and I have a genuine concern about them and about the validity and accuracy of petitions that are received by local authorities. However, having made that cri de coeur I will withdraw the amendment and consider the position with regard to it. With your Lordships' permission, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 45G, 45H, 45J and 45K not moved.]
Lord Evans of Claughton Lord Evans of Claughton moved Amendment No. 45L:
Page 5, line 3, at end insert ("by way of hearing before a committee or sub-committee of the district council appointed for such purpose").
The noble Lord said: I move this amendment, again, becaues my own experience in local government convinces me that this is an important protection for the proprietors or keepers of these premises. It is, I think, of the utmost importance that the keeper of the premises subject to a licensing application be given the right to be heard by a body he can identify and which will decide whether or not to make a closing order. Without this right there is a danger that points will be before the district council on which they are unable to satisfy themselves or on which they could satisfy themselves only at the expense of cumbersome correspondence.
It therefore seems to me that it would be only fair that where a decision is being made of the kind of importance to the livelihood of a small trader as I have underlined this evening, then he, she or it should at least know that there was going to be a hearing before either a committee or a sub-committee of the local authority which was making the decision. That seems to me to be a matter of justice, to be a matter of equity and fairness, so that the person can know that the points in his own favour will be heard in a place where he can make them himself, where he can reply to criticisms and where he can have a proper and fair hearing. I beg to move.
Lord Belstead: I accept that Amendment 45L would bring the Bill into line with the Greater London Council Act. While I agree that many proprietors might wish to make their representations orally, others might prefer to make them in writing. I shall have to answer the noble Lord in this way. I have had to say once before this evening that I shall take something away and consult with the local authorities. On this occasion if I were to be able to come anywhere near meeting the noble Lord I should have a word with the local authorities about it. They might find it onerous if they were to hear before a sub-committee a large number of oral representations when those representations could have been made in writing. The noble Lord may say that that is all very well, but will the Government simply do exactly what the local authorities want? My answer to that is, yes, almost certainly. We would attach very great weight to what the local authorities said. If, at the end of the day, I could not come any distance towards meeting the noble Lord, then I should have to say so and he would have to consider his position. I am sorry I cannot go further.
Lord Evans of Claughton: I am grateful to the noble Lord for seeking to be as accommodating as he can. I can assure the noble Lord that there are already procedures, not in this particular esoteric area of human activity, where sub-committees or committees of councils meet interested or concerned parties. One has only to think of the field of education where there are meetings night after night about the individual problems of parents. I am the first to concede that the problems of parents and their children's education are important; but so, too, are the problems of people's livelihoods.
As the noble Lord has said, it is precedented in the Greater London Council Act. Also if one believes in
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open government, and that the ordinary individual has the right of access to people making decisions about his life and the right to challenge those decisions —which one really cannot do effectively in writing—then people ought to be given that right. I am prepared to believe that some local authorities do not want this provision because it is time-consuming and a nuisance. But so many of the activities of democracy are annoying and time-consuming. I can imagine some more obscurantist councils might take that view. When the noble Lord the Minister discusses it with them, I hope that he may come up with some remedy along the lines that I have suggested. But if he cannot do so, then I reserve my right to bring the matter forward again. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 45M to 45ZB not moved.]
Clause 5, agreed to.
Clause 6, agreed to.
Lord Underhill Lord Underhill moved Amendment No. 46:
After Clause 6, insert the following new clause:
("Litter Act 1958: display of notices. 1958 c. 34.
. A district council may make an order under this section requiring the keeper of premises to which this Part of this Act refers to display prominently a notice in a form prescribed by the district council drawing attention to the provisions of the Litter Act 1958.").
The noble Lord said: This new clause continues the consideration of Part IV of the Bill relating to take-away food shops. The amendment, which has been supported by the noble Lord, Lord Evans of Claughton, relates to an issue that I raised on Second Reading. This part of the Bill proposes a measure of control where nuisance may be caused by these establishments. I echo what has been said by a number of noble Lords. This is not an attack on these establishments; they serve a valuable purpose. But there is another nuisance created and that is the amount of litter that is left as a result of customers using take-away food shops. This is particularly so with fish and chip and chinese food take-away wrappings. In most cases the establishment is not to blame; it is the customers who are to blame. Often this particular nuisance is created not outside the establishment but some distance away as people proceed on their way. Other noble Lords may have had the same experience as myself, that often a disgraceful amount of litter is left in roads outside take-away shops and litter is thrown into private front gardens.
The proposal is a simple one: it should be mandatory that take-away food shops should display prominently a notice in terms which the distirct council would prescribe drawing attention to the provisions of the Litter Act 1958. I believe that this would be helpful, even though I appreciate that it is a very limited proposal. Although I think that the amendment will be helpful, I am also putting it forward—and I am certain that the noble Lord, Lord Evans, supports me—to ascertain what more the Government may suggest should be done in this respect.
The Litter Act 1958 by itself seems to be of little value. People either do not seem to be aware of the offence of depositing litter or they do not worry about it because there seem to be very few prosecutions. I referred to

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one area in my speech at Second Reading. That occurred within 50 yards of a police station which is regularly manned. Therefore, there seems very little prosecution arising from the 1958 Act; yet in my estimation the penalty, which I believe is still not exceeding £10, is a deterrent—at least it would be to me.
I have considered making an addition to the amendment: the provision of adequate litter receptacles. But councils already have the provision for fixing litter receptacles on highways. Moreover, merely to put a receptacle outside the food shop will not solve the problem. As I have mentioned already, this nuisance is often created some distance away from the food shops. It is a definite problem, one which needs to be looked at, and I hope that the Minister will feel that he can support this amendment. In addition I hope that he may give some further indication of steps that might be taken to deal with this considerable nuisance, which I emphasise is not primarily that of the take-away food shops but of the customers who use these establishments. I beg to move.
Lord Evans of Claughton: May I briefly say how much I support the initiative taken by the noble Lord, Lord Underhill. Like him, I underline that it is not the take-away food shops and the fish and chip shops that cause the trouble. I suppose they create the litter, but the national organisations of these take-away food shops have gone to a lot of trouble to try to encourage the removal of litter. They realise that one of the main arguments that people will use against them when they seek to renew licences is the nuisance caused by the deposit of litter and the damage done to people's gardens and the general "flavour" that is left in an area. People often leave these places in a disgusting state, particularly at weekends. We all have knowledge of this from the areas in which we live.
I think that this is really to do with enforcement, as the noble Lord said. In Singapore I gather there is imposed a fine of £100 or imprisonment for these offences. Therefore, there is very little litter about. In Austria there is very little litter because the provisions are enforced. Here, there are great difficulties because the police are understandably going to say, "Give us a choice between stopping litter louts and someone committing grievous bodily harm and we have to deal with the latter". But I think it would be useful to have an assurance from the Government that on the broadest possible front of the litter problem, not just concerning that created by take-away foods, they will be willing to encourage initiatives. One of the first indications that one has returned to the United Kingdom is that there is litter everywhere, and any group of organisation which could give positive advice on how this bad reputation can be got rid of deserves considerable praise. I shall look forward with interest to what the Minister has to say.
Lord Belstead: The noble Lords, Lord Underhill and Lord Evans, have described how bad this problem can be. May I say that I agree with them. It is today a very real problem in this country and of course the difficulty is that we probably do not have a realistic fining system under the Litter Act 1958 for anyone guilty of strewing litter in a public place. But I do
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not know that we necessarily have parliamentary agreement that the maximum fine should be increased.
Apart from the question of whether the public are likely to respond to notices drawing this to their attention, the noble Lords' amendment is defective in that it does not provide for any sanction against a failure to display the notice prominently. This is more than just a nit-picking criticism; there really is a difficulty here. If one puts a sanction in, probably the Committee, or indeed the noble Lord, Lord Evans, would not be quite so keen on requiring those who run take-away food shops to display a notice because, as we have been saying, the litter is not their fault. Maybe they generate in their shops what is littered around outside, but the fact that litter is distributed near their shops is not their fault, and to make them display a notice and to put a sanction in would be something that we would have to think about very seriously. If we do not put a sanction in, as the amendment is drafted now, one has to say that the amendment is defective.
I have been asked whether the Government have got anything to say which is constructive. I think that this is a problem which should be tackled effectively by the provision of litter bins in the immediate vicinity of takeaway food shops, and of course that means co-operation between the local authorities and the shops themselves. That is the road down which we would seek to go and down which we ought to go, rather than picking out take-away food shops especially for this treatment.
Baroness Birk: I have listened carefully to what the Minister said and f can see his point about the sanctions regarding the amendment moved by my noble friend. But it seems to me that we have to start somewhere, and if all the time we brush these things away like this until we reach absolute perfection, we shall not get any improvement at all. I would have thought that one way of tackling this problem would be to try to impress on the district councils that they can make orders, or even to try to persuade the keepers of premises to display these boards; to come along with a design, as I did once when I was in charge of the Royal parks, which is attractive and eye catching, so that people will look at it even before they know what it is about.
The other point referred to the fact that the maximum fines at the moment are too low. I should have thought in that case that either my noble friend or the Minister surely could come forward with an increase in the fines. I am rather unhappy that something is generally agreed to be a nuisance, and we all sit back and say, "There is nothing we can do about it". I feel there is something we should try to do about this because it is a menace; and, since the keepers of the premises are also responsible for their behaviour to the local community. I am not sure, without thinking it through very carefully, that the argument that there should be no sanctions really holds water.
This question must be looked at very much more closely. Rather than turn down the amendment, I should like to hear the Minister say what he can come back with, or that he will give my noble friend a chance to come back with something else on Report. We want to see whether this problem can be tackled in some way, with everybody thinking about a solution.
Baroness Ewart-Biggs: I should like to support this amendment very strongly, and I suggest that one

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should do more than just produce a few receptacles. We could follow the example of the Kentucky Fried Chicken people, who sponsored the Keep Britain Tidy awards. Following that, there was the Operation Clean-up, which was an Easter spring clean by the Scout movement. So I wonder whether there should be some greater initiative, which could be followed by others.
Lord Belstead: I ought to thank noble Lords for what they have said, because their intentions, and the intentions of the Government, are the same; that is, to try to remove the very considerable amounts of litter which are to be found in this country. But as the impression may have been gained, despite my words earlier, that the Government are not as sympathetic as they should be towards take-away food shops, I must seize this opportunity to say that I am concerned about picking out take-away food shops and saying that, in some ways, they should be dealt with because of litter. Litter is to be found near to all kinds of public buildings, and it is not the fault of those buildings. It is also not the fault of the cinemas or the shops, out of which people bring things which are wrapped. It is the fault of all of us, for throwing things on the ground in the street.
I therefore come back to the difficulty. To lay a duty on these shops to put up a notice, and then to add some sanction—which we would have to do—would be putting take-away food shops in a position where they could reasonably say that they were being picked on for what is a public nuisance. I would ask your Lordships to think carefully about that, before agreeing to go further with this solution.
Lord Underhill: One could open up the whole question of the litter problem which, as the noble Lord, Lord Evans of Claughton, said, is a disgraceful one in this country. But this gives an opportunity of trying to do something. While I can appreciate what the Minister said about picking on one set of establishments, everyone must agree that the development of these take-away food shops has added to the problem, and created a very severe problem in areas where there are a number of these places. All noble Lords will have experience of this.
I am prepared to accept what the noble Lord said about my amendment being defective, and I am always prepared to give up my amendment, so that the Government can bring forward one of their own. I also appreciate what he said about the need for a sanction. But if we have a problem, what are we to do about it? Are we merely to shrug our shoulders and say that this is picking on these people? If the Government will say that they will tackle the whole question of litter being deposited—chocolate wrappings, cigarette packets being thrown out of cars and ice-cream cartons being thrown on the pavements—we can leave it to them to do something, and to discuss the matter with the local authority associations. Merely suggesting the fixing of receptacles nearby will not solve the problem. I thought I made that clear in my opening remarks today and on Second Reading.
To have a large receptacle within five or 10 yards of a take-away food shop, will not solve the problem. People do not stand in the main highway eating their Chinese take-away food or their fish and chips. Many
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noble Lords have enjoyed fish and chips out of a paper. They taste better that way than in any other way. Furthermore, you do not eat your fish and chips standing outside the shop. You walk along the road and drop the paper around. That is the problem with which we are faced. I suggest that if a certain group supply materials which cause a nuisance—which is not their fault—then the least we can do is to dry to draw the public's attention to it. It may be that it is lack of education in schools or lack of parental direction. We have a problem. I believe that the Government are shrugging their shoulders and saying, "What can we do? We can do nothing". I should like the Government to take the matter away, look at it and perhaps discuss the general litter question with the local authority associations. This is a major problem which we could tackle. Therefore, I hope that the Government will think again about it (in the meantime, I beg leave to withdraw the amendment) and I myself will think again about it.
Amendment, by leave, withdrawn.
Clause 7 agreed to.
9.46 p.m.
Viscount Ridley Viscount Ridley moved Amendment No. 47:
After Clause 7, insert the following new clause:
("Regulation of Schools and Colleges.
PART IVA
REGULATION OF SCHOOLS AND COLLEGES
A Local Education Authority may, with reference to any school or county college maintained by the authority, make byelaws for the regulation thereof, and of the days and times of admission thereto, and for the preservation or order and prevention of nuisances therein, and may by such byelaws impose penalties recoverable summarily for the infringement thereof and provide for the removal of any person infringing any byelaw by any designated employee of the authority or Police Constable.
The confirming authority in relation to byelaws made under this section shall be the Secretary of State.").
The noble Viscount said: I beg to move Amendment No. 47. The purpose of my new clause is as follows. Many local education authorities have for years actively pursued a policy of ensuring that school premises are widely used for community purposes outside school hours. This derives from the very good wish that public premises should not be confined to limited uses but should be used far more widely within the community. The opening up of school premises and playing fields has also been accompanied recently by the siting of such things as leisure centres and youth clubs on school sites. Similarly, community colleges are often so sited. And on occasion libraries also share a school or college site.
I am sure the Committee will think that the use of such premises by the public generally is very much to be welcomed and encouraged. But although the vast majority of people who make use of such facilities do act absolutely properly and enjoy them to the full, there is, sadly, always has been, and I fear may always he, an element—a minority, indeed—who will misuse the facilities which have been provided by the authority. There are reports of activities such as the riding of horses, although that in itself may not be dangerous (and in Cheltenham Week to come I should not condemn it) the playing of golf, the walking of dogs, with the hygiene aspect in the case of school playing

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fields to be considered, and the riding of motor bikes by teenagers which become very much a source of nuisance and danger to the other users and to the management. There have been reports of serious accidents at educational establishments because of such activities.
For local education authorities to be able to police such premises would, I think, be quite out of question on grounds of cost. Most of this activity naturally happens at weekends and during school holidays and it would be wrong to embark on any further public expenditure in this field. However—I speak on behalf, as always, of the Association of County Councils—it is felt that the system of by-laws which this clause would allow would give power to authorities to produce them, where these things were happening, and would be very helpful.
The point is that the existence of such a power to make by-laws would I believe have the effect of encouraging the use of such premises and of encouraging education authorities to open them yet further for the use of the public. I remember how frequently school children, denied the use of facilities during the long summer holidays, longed to get over the school fence if only to play a game of football. However, it was always forbidden because it was thought that the damage would be beyond repair. I believe that hitherto the Home Office have taken the view that it is not possible to make by-laws of the nature and the scope which has been required under Section 235 of the Local Government Act 1972, but no other legislative provision seems to be known whereby such by-laws could be made. Therefore we seek to introduce this clause which would allow the early introduction of such enabling legislation.
I suggest that this enabling legislation should follow the pattern of the Open Spaces Act 1906. I am sure your Lordships will be fully aware of Section 15 of that Act. It allows for a very similar precedent which has been created dealing with open spaces. At this late hour I have no intention of wearying your Lordships with the type of by-laws which might be needed. They include such things as prohibition of the bringing on to the site of sheep or goats and the use of obscene language on a school playing field. Whether that is prohibitable by by-laws I am not sure, but there are other more serious problems, such as dogs. I shall not waste your Lordships' time by reading them out. I believe very strongly that such powers are badly needed and that such by-laws could be inoffensively given by the Government during the course of the Bill. I am convinced of the need that they should be granted. I am quite certain that your Lordships will have noticed the final part of my amendment, which gives the Secretary of State power to confirm or otherwise these by-laws. There is no intention that they should be restrictive and deny the public the proper and full access to the playing fields in school grounds which we so very much desire. I beg to move.
Baroness David: I have a lot of sympathy for this new clause proposed by the noble Viscount, particularly as he prefaced his remarks by saying how much he wants school premises and playing fields to be used by
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the public. I am sure we would all agree with that. I also know what damage can be done. A school of which I am a governor has what I believe must be the only hill in Cambridge. During the snowy weather in December a lot of tobogganning went on. The goal posts were damaged and the whole place was chewed up. Games had to be stopped for a considerable time. So I do understand what the noble Viscount is getting at. I just wonder whether it is going to be a little restrictive. I shall listen with interest to what the noble Lord the Minister has to say. In general, we have a lot of sympathy with this proposed new clause.
Lord Evans of Claughton: This is a very interesting and useful amendment. I find it particularly attractive as it is precedented by the Open Spaces Act 1906, which was a fine piece of Liberal legislation which has stood the test of time. The present-day circumstances of the use of schools for community purposes is a novel situation compared with a few years ago. Extending the use of school premises for community purposes is to be very much welcomed, not only in development areas but in all parts of the country. It is a pity that the very fine work being done in community schools for adults, elderly people and children is from time to time damaged by abuse of these premises. There have been a number of fairly serious accidents involving personal injury because people insisted on riding horses across playing fields in the part of the country where I live. That is quite apart from the damage they did to the cricket square. As the noble Viscount has said, there are also people who insist on playing golf. There are also some idiots who drive very loud motor bikes all over playing fields. If the Government can give some indication that legislation such as this might possibly be included in the Bill, and that there is some hope of its being enforced, it would serve very much the growing need for the use of schools and similar premises on a broad community basis.
Lord Belstead: I have sympathy with the intention behind the clause because anything that can be done further to promote the dual use or joint use of school premises and other local authority premises is desirable. However, the amendment does not distinguish between the regulation of the premises for school use and for the general public. As drafted, the by-law making powers would apply to the use of the school premises by pupils during school hours. I believe this would be unacceptable from an educational point of view. In addition, some provision would have to be made in an amendment such as this for voluntary schools.
The point that surprises me, given that all noble Lords who have spoken to this amendment have a long knowledge of local government, is that I thought (but I may be wrong) that local authorities had the necessary power. I am advised that in most cases where premises are freely open to the public, the public are admitted as licensees and that except where they have a general right of entry (which does not apply to educational premises) the public can be made subject to such conditions as are drawn to their attention by a notice on entry. That is the sort of thing that the noble Lord, Lord Underhill, was persuading me was the right policy on the last amendment. Where

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a charge is made on entry, a local authority can in addition impose as contractual conditions rules that might otherwise be included in by-laws.
It is always open to any authority to make rules of management regulating the conduct of members of the public entering various types of local authority premises. I should have thought, therefore, that there was nothing between the Government and my noble friend Lord Ridley except that these powers are there for the local authority to use anyway without the amendment. If I am not right in this, then of course I will be prepared to look at the amendment again, but I am advised that as it stands the amendment is not necessary.
Viscount Ridley: I am grateful for the support of noble Lords opposite, and I am sorry I did not give the credit for the Open Spaces Act 1906 to the noble Lord, Lord Evans; I had not realised that he was part of the process in those days. I thank my noble friend the Minister for his courtesy. I am advised that he is wrong and I am right, and that there is no power to make such by-laws, but I happily withdraw the amendment on his undertaking that he will be prepared to look at it again if he is right and I am wrong, which is equally possible. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 8 [Consultation between authorities]:
9.57 p.m.
Viscount Ridley Viscount Ridley had given notice of his intention to move Amendment No. 48:
Page 8, line 1, after ("had") insert ("by them to any observations submitted to them by the fire authority and").
The noble Viscount said: In the interests of brevity at this late hour, I have no intention of moving Amendments Nos. 48 to 55 inclusive. The noble Lord, Lord Belstead, produced an unanswerable case to them in Amendment No. 1. I think they are utterly trivial.
[Amendments Nos. 48 to 55 not moved.]
Clause 8 agreed to.
Clauses 9 and 10 agreed to.
Viscount Ridley Viscount Ridley moved Amendment No. 56:
After Clause 10, insert the following new clause:
("Licensing of auto-diallers.
Licensing of fire alarm systems
.—(1) This section applies to a fire alarm system connected to the telecommunication system of the Post Office through a device commonly known as an auto-dialler which, in the event of an alarm, connects without manual intervention to the emergency network of that system of the Post Office.
(2) No person shall install a fire alarm system to which this section applies otherwise than in accordance with a licence issued by a tire authority under the following provisions of this section.
(3) A person requiring the grant of a licence under this section shall make application to a fire authority in such form as the tire authority may prescribe (a copy of which form shall be supplied by the fire authority to any person on demand) and shall be accompanied by—

(a) such particulars of the intended system as the fire authority may require; and

(b) the payment of such reasonable fee as the fire authority may determine.

(4) A fire authority may, on the application of any person, grant to him a licence under this section on such terms and conditions as may be specified including, without prejudice to the generality of the foregoing—

(a) such modifications of the intended system particulars of which have been submitted to them as they may require;

(b) the right of the fire authority to impose a financial penalty (not exceeding £200 on any occasion) if the fire alarm system causes false alarms to be transmitted;

(c) the right of the authority to cause the licensee to disconnect the alarm system, if they are of the opinion that the number of false alarms given by it are excessive.

(5) If any person contravenes subsection (2) above he shall be guilty of an offence and liable on summary conviction to a fine not exceeding £200.").
The noble Viscount said: This amendment I regard as more important than the others. The clause which I seek to introduce would enable a fire authority to be aware of the intention to introduce an automatic system and thus provide an opportunity for it to examine the proposal and the message to be transmitted. I speak here about a relatively new form of fire alarm system developed since the advent of the microchip. For a relatively small sum—I believe, much the same figure as an ordinary Ansaphone can be obtained for, somewhere in the order of £200—a purchaser can buy an auto-dialler which on being activated by a sensor on the premises to be protected against fire automatically
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dials 999 and transmits a recorded message through the Post Office telephone lines to the fire brigade.
Up till recently the form of fire alarm most commonly used in this type of appliance was directly connected through private lines to the fire brigade. The fire brigade entered into an agreement with the property owner. This agreement provided for the payment of a penalty, approximately £50 at the moment, in the event of the equipment malfunctioning—I apologise for that American word, but it does say what I mean—and raising a false alarm. Auto-diallers contact the fire brigade through the Post Office telephone system. There is therefore no agreement with the fire brigade and no power to enforce any penalty for false alarms.
Because of the relative cheapness of the equipment, it is expected, shortly, that large numbers of such auto-dialler fire alarms will be installed, and fire authorities are very worried indeed about the possibly substantial increase in the number of false alarms. I need not waste your Lordships' time explaining what a false alarm means to a fire brigade, having to turn out in the middle of the night, and the cost of it. It seems to be quite inconsistent to concede the introduction of any automatic device, capable of installation by almost anybody with no more than a basic knowledge, and not to propose some form of control over such equipment if it causes nuisance to a fire brigade. There is a great possibility—no doubt I might even be tempted to have a go myself—that many installations will be made by do-it-yourself enthusiasts and people not belonging to any trade association and having no real knowledge of how to install these things.
I understand that no less than 27 county councils, who are fire authorities, very much requested that we should seek this new clause. Surveys some years ago showed that 10 per cent. of false alarms emanate already from auto-diallers and this is probably already a low estimate in view of the great increase in the number of such installations which have taken place. The Home Office itself has shown that the ratio of false alarms to genuine fire calls given by automatic systems of any type has been shown to be 11:1. I would just add that Kent County Council, one of the major fire authorities in this country, had a new clause of this nature in its own county council Bill and it withdrew it on the understanding that, although it had ample evidence of need for such a clause, it would be included in this Bill.
It is impossible to stress what the expense and worry to fire brigades would be if this clause is not introduced and the Bill is not so amended. Although I fully accept that a clause of such length may well be defective in drafting, I very much hope that the Government will give great sympathy to this very important matter. I beg to move.
Lord Underhill: As one who was a member of the National Fire Service for five years, I know only too well what happens with a false alarm turnout. Generally I would support the new clause moved by the noble Viscount, but there is one question that I should like to raise. I am very pleased that on a previous issue I supported the right of an appeal, even though it was on a subject about which I had a very emotional disagreement and I thought that it might come back if I did not

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do so. We notice that, under subsection (5), on summary conviction a person can be fined up to £200 if he installs this system without a licence being given by the fire authority. I notice under subsection (4)(b) that in the event of a false alarm being transmitted, the fire authority can impose a penalty not exceeding £200. It would seem that, even where a man has gone through the right procedure and has been given a licence by the fire authority, and even though the false alarm might not be his responsibility, there is no right of appeal. I wonder whether that is a defect which might not be put right?
Lord Belstead: My noble friend Lord Ridley has drawn attention to the serious results of false alarms and, indeed, the noble Lord, Lord Underhill, has confirmed this point. It is expensive and possibly dangerous when an appliance goes off on a false alarm and assistance is not available in case a genuine alarm comes. Therefore, the Government have a great deal of sympathy with the purpose underlying the new clause.
Coming immediately to the point raised by the noble Lord, Lord Underhill, I think that the power to the fire authority to include in a licence a condition reserving to itself the right to impose a financial penalty, not exceeding £200 on any occasion, if the fire alarm system causes false alarms to be transmitted, gives rise to objection. This provision would breach the important principles set out in Section 3(4) of the Fire Services Act 1947 that a fire authority shall not make any charge for fire-fighting services rendered by the authority. If charges in the form of penalties were regularly imposed on those whose equipment generated a false alarm call, the likely consequence would be to discourage persons from installing or using automatic fire detection equipment in their property. Surely that is not what we want to do? Anyway, as the noble Lord, Lord Underhill, has said, what happens if the fire alarm goes off and it is not the fault of the owner of the alarm? What happens if somebody either inadvertently, or maybe maliciously, puts a lighted cigarette very near to where the alarm is positioned and the alarm works on a heat principle and goes off? Is the person who owns the alarm subject to a £200 fine? I do not think that this particular provision is right.
The other point which is difficult is that as a matter of fact the automatic fire detection alarm systems linked to auto-diallers represent only a small proportion, albeit an increasing proportion, of the automatic systems in use. Other systems, as I am sure my noble friend will be aware, are connected to fire brigades by direct private lines or are connected to central alarm receiving stations operated commercially by the equipment manufacturers which then forward the calls to the fire brigade. Any attempt to control the installation of auto-diallers would therefore involve tackling only part of the problem. My noble friend Lord Ridley may say that it is all very well being so negative, but is there nothing constructive which I can say in reply to the amendment.
There are two particular matters which I should like to take the opportunity to mention. First, the Government are now participating in discussions with manufacturers of fire protection equipment, and insurance
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and consumer interests, about the possibility of establishing a national approvals authority for fire protection equipment and for services such as installation and maintenance. This authority would help to ensure that a consistently acceptable standard of equipment and services was applied in the United Kingdom, and should help to generate greater confidence in the reliability of detection equipment.
Secondly, the British Standards Institution has recently issued a series of standards relating to automatic fire detection and alarm equipment. These standards provide, for the first time, authoritative guidance on all aspects of automatic fire detection equipment, its installation and maintenance. The existence of this range of standards, to which fire brigades will have regard when advising occupiers, should help improve the general quality of the equipment and thereby lead to a reduction in the false alarm rate.
On a personal note, on the Home Secretary's behalf, I am involved with the Central Fire Brigades Advisory Council, where I know different sub-committees of the council are, from time to time, concerned with this worrying aspect of the giving of false alarms. I also had the good fortune to be with the British Fire Protection Systems Association when they, in fact, launched their idea of a national approvals authority. I only say this because I would ask my noble friend if he would consider withdrawing the amendment and letting this now proceed by voluntary means. I think that real attempts are being made to try to see, through better installation standards, better maintenance and better overall standards nationally, that this level of false alarms is reduced. I believe that if we can proceed by voluntary means, we shall certainly get somewhere.
Lord Tordoff: Before the Minister sits down, does this extend into the area of burglar alarms? It seems to me that this might well be the next technological breakthrough and that, in fact, burglar alarms, instead of going off in the middle of the night and keeping the whole neighbourhood awake for the entire weekend, might be geared into this sort of system with the sort of constraints and provisos about which the Minister is talking.
Lord Belstead: There are two points that I should like to make in reply to the noble Lord, Lord Tordoff. On burglar alarms, I should be very chary, if we could possibly avoid it, of doing anything to prevent people installing alarms, although, as we know, from time to time the police take a view about the number of times they will accept false alarms and then they start saying to people who have burglar alarms, "Sorry, you have had too many; we shall in fact cut you off". I find that quite understandable, but it is a conclusion which is to be regretted because, in the interests of crime prevention as well as in the interests of fire prevention, we want to encourage people to have alarms and not, if possible, to cut them off.
Secondly, if we are doing the same sort of thing for burglar alarms and putting in a fining provision, once again I think that we should start to run up against the difficulty of the desirability of enabling the police

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force to levy fines for false alarms going off in people's homes. Therefore, there are those two considerations which would have to be considered with burglar alarms as with fire alarms.
Viscount Ridley: I entirely accept the point made under subsection 4(b), that the right of the fire authority to impose a penalty is probably wrong, and, on that ground, I am quite prepared to withdraw the amendment. But I am not so happy about the Minister's further reply about the question of committees sitting on this matter, discussing with the fire brigade safety advisory officers and so forth. I do not think the people who are to install these things have any idea that any of these committees exist. They will go into a DIY shop in a suburb somewhere, buy one of these things made in Japan or Hong Kong and fit it to the telephone without anyone knowing. This could be an extremely expensive and laborious business to everybody. I beg the noble Lord to allow me to introduce this clause again, hoping that he will be slightly more friendly towards it if I take out subsection 4(b), which I am quite happy to do; because I think that this is a problem that will cause major expense to fire authorities and must be licensed in one way or another. I am quite happy to enter into discussions or in any way to look at the matter again. But I think he has brushed it aside and he assumes that people will take note of whatever the Home Office is always doing, whereas I do not think they will. Therefore, I beg leave to withdraw the amendment with that warning.
Amendment, by leave, withdrawn.
Clause 11 agreed to.
Clause 12 agreed to.
Clause 13 [Application of Part VIII]:
On Question, Whether Clause 13 shall stand part of the Bill?
Lord Underhill: At Second Reading I urged that the provisions of this part of the Bill should be made mandatory and not permissive as is proposed. The point I then made was that many provisions in this Bill relate to nuisances and the way to effectively control nuisances. In those cases the provisions are permissive. But I suggest that in this particular part of the Bill dealing with acupuncture, ear-piercing, and tattooing, these are not nuisances. They are in effect a health hazard, and I should appreciate the comments of persons who are much more learned in this on the medical side.
The department has stressed that these practices could, if carried out in unhygienic conditions, lead to hepatitis. In 1980 I served on a committee on the South Yorkshire Bill in which that authority sought power to register these establishments in order that they could inspect the condition of the establishments. In the consideration of that Bill a lot of attention was given to this question, and reference was made to the outbreak of hepatitis in Birmingham in 1977 which was caused by the use of unsterilised acupuncture needles, and which led to the West Midlands authority including a similar power of registration in its local Bill.
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I refrained from tabling an amendment because I recognised that West Midlands, South Yorkshire, and perhaps some other authorities already have this provision, or something akin to it, in their local Acts and I have no desire to worsen their position. I shall listen with great interest to the Minister's comments on my observations, and I would appreciate if some information could be given to your Lordships as to the number of authorities which have this provision, because this may affect what course of action one might wish to take on Report stage. It appears to me that this is not a nuisance we are dealing with; it is something which is very much a health hazard to which we ought to pay serious attention.
Lord Belstead: I have not got the numbers of local authorities who have taken this power, but the noble Lord has put his finger on the problem. If we make this mandatory then we do away with the powers which have been taken by some local authorities—I think South Yorkshire was the first to take the powers—and say that instead of their own local powers they must take the powers which are set out in this part of the Bill.
Where we have been able to avoid doing that in this Bill we have always done so, because we have felt that the Bill ought to be adoptive. Having said that, I agree with the noble Lord, Lord Underhill, that the objective of this part of the Bill is cleanliness, hygiene, and good practice, and I feel sure that local authorities will adopt the provisions in this part of the Bill. The noble Lord will want from me the numbers of local authorities which have taken powers of this kind. I would undertake to let the noble Lord know as quickly as possible by letter.
The Earl of Halsbury: I think the noble Lord will find them in Amendment No. 59 which stands in my name.
Lord Underhill: If, as the noble Earl says, this is the number of authorities, it is extremely limited, which means that there is more force then in the point I raised on clause stand part. Either this should be made mandatory or there must be a determined effort to advise authorities to proceed in this way. Authorities will not know where the establishments are unless there is some compulsory power to make them register, and I doubt whether the department will know precisely how many such establishments there are throughout the country. If the only ones who have adopted it are those listed here, it suggests we have a very long way to go to avoid the possibility of another outbreak as there was in Birmingham in 1977.
Clause 13 agreed to.
Clause 14 [Acupuncture]:
10.15 p.m.
Lord Belstead Lord Belstead moved Amendment No. 57:
Page 15, line 14, at end insert ("but do not include information about individual people to whom the applicant has given treatment").
The noble Lord said: This amendment has been requested by the principal acupuncturist organisations,

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who are understandably and correctly anxious to preserve the confidentiality of their clinical records. The Government consider the request reasonable, as the registration of acupuncturists which Part VIII of the Bill enables local authorities to require is for the purposes of ensuring hygienic practice and, properly, not for the purposes of ascertaining which persons seek acupuncture treatment and for what reasons. It is to meet that, we believe, reasonable apprehension of the acupuncturist organisations that I move the amendment.
On Question, amendment agreed to.
The Earl of Halsbury The Earl of Halsbury moved Amendments Nos. 58 and 59:
Page 15, line 28, after ("dentist") insert ("or a person who is registered by any board established under the Professions Supplementary to Medicine Act 1960");
line 30, at end insert—
("(9) Each of the enactments mentioned in subsection (10) below shall have effect as if after "1957" there were inserted the words "or a person registered by any board established under the Professions Supplementary to Medicine Act 1960".
(10) The enactments referred to in subsection (9) above are—

(a) section 24(4) of the West Midlands County Council Act 1980;

(b) section 22(4) of the South Yorkshire Act 1980;

(c) section 32(4) of the Greater Manchester Act 1981;

(d) section 19(5) of the Greater London Council (General Powers) Act 1981;

(e) section 20(9) of the County of Kent Act 1981;

(f) section 27(4) of the East Sussex Act 1981.").

The noble Earl said: This is a rather involved-looking series of amendments and I will try to explain how it all fits together with the prior legislation that has been talked about, of which noble Lords will see a list in Amendment No. 59 under subsection (10). The various groupings in the medical profession—doctors, dentists, nurses, midwives and so-called paramedicals—have all been set up by Acts of Parliament at one time or another, and the usage of their titles is to some extent protected, not always uniformly or to the same extent. The professions supplementary to medicine are set up by their own Act, and they are chiropodists, dieticians, medical laboratory technicians, occupational therapists, physiotherapists—in whom my noble friend Lady Masham of Ilton would wish to declare an interest as their national president—radio therapists and remedial gymnasts. All those people are entitled to partial protection for the titles by which they go. Anybody can call himself a physiotherapist, but the names, "state registered physiotherapist" and, "Chartered physiotherapist" are protected.
Those professionals, as opposed to amateurs—any amateur physiotherapist can of course set himself up as an acupuncturist—have very much higher standards of professional qualifications than anybody who is likely to call himself an acupuncturist—which is a piece of Oriental folk medicine whose precise relevance to biochemistry and physiology is by no means well understood or even accepted by those who are a great deal better informed than I am in these matters. The professions supplementary to medicine operate at far higher standards than anything laid down by acupuncturists, and therefore it is appropriate that if we are to say that the provisions of the Bill for the supervision of
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acupuncturists do not apply to doctors and dentists, it would be reasonable to extend the provision to state registered nurses and the professions supplementary to medicine, and that is what the amendments do.
Typical of the list of other legislation that has been referred to is the South Yorkshire Act, Section 22(1) of which recites:
"As from the appointed day in any district a person shall not in that district carry on…the practice of acupuncture",
et cetera. Subsection (4) states:
"Nothing in this section shall extend to the practice of acupuncture…by or under the supervision",
of a person who is a registered medical practitioner or a dentist registered under the Dentists Act 1957. The intention of the amendment is to insert at that point the words:
"or a person who is registered by any board established under the Professions Supplementary to Medicine Act 1960".
I hope that that is a reasonably clear exposition of what the amendment attempts to achieve.
It seems to me wrong that people such as physiotherapists, who practise to the very highest standards, should be put under the same kind of discipline as amateurs, when they are themselves under the discipline of a chartered body, which is all laid down in the Professions Supplementary to Medicine Act 1960. Schedule 2 to that Act lays down the procedures for investigation and disciplinary committees and so on of that profession, and these are all to so much higher standards than anything that is contemplated in the legislation that it seems reasonable that the chartered physiotherapists and the state registered physiotherapists should be relieved from this form of inspection, just as doctors and dentists are. I beg to move.
Baroness Birk: I am a little worried about this amendment. I shall not go into the merits of the exemptions which the noble Earl spelt out—there appears to be some merit in them—but what worries me is the apparent lack of consultation with local authorities before bringing forward these repeals. I see from the list included in the amendment that the Acts were all passed in 1980 or 1981; in other words, they have been very recently effected. The Acts were passed after full hearings before committees of both Houses, and I am worried that the powers should now be suddenly swept away in this fashion without consultation with the authorities concerned. I do not know whether there has been consultation with the local authority associations. This point has been raised on one or two other amendments that we have discussed during the passage of the Bill, and it is this aspect that I and some of my noble friends find rather worrying.
Lord Airedale: I should like very strongly to support the amendment moved by the noble Earl, and I think that the qualms of the noble Baroness are not really necessary since, as the noble Lord, Lord Underhill, has just pointed out in criticism, the clause is only permissive and, if the local authorities concerned which have not been consulted do not like it, they do not have to adopt it. That probably explains why there might not have been the consultation that the noble Baroness would have liked to see.
Returning to Amendment No. 58 (the first of the two amendments), I would point out that the clause

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is mandatory upon the local authority which adopts it. Subsection (3) states:
"on application for registration…a local authority shall register the applicant and the premises where he desires to practise and shall issue to the applicant a certificate of registration".
The only concern is that which is referred to in subsection (7); namely, the cleanliness of premises, persons and instruments. As the noble Earl has implied, I should have thought that anyone who is entitled to call himself or herself "state registered" could safely be assumed to be well trained in the cleanliness of himself or herself, the premises, and the instruments.
I do not think there is any money in this for the benefit of hard-pressed ratepayers, because I suppose that the registration fee will be set only at a level which will pay the administrative cost of running the scheme—I think that is the general practice—and I think it will be quite unnecessary to require these state registered people to register under this clause purely for the sake of ensuring that their premises, and so on, are kept clean and hygienic. I very much hope that the Committee will accept that they should be put alongside the doctors and dentists and trusted to maintain hygiene and cleanliness, and not be required to register.
Lord Belstead: The exemption of doctors and dentists from the application of Clause 14 reflects the Government's recognition that acupuncture now has an accepted place in medical practice and as a form of anaesthesia in dentistry. But, although the noble Earl, Lord Halsbury, made a characteristically strong case for this amendment and has been supported by the noble Lord, Lord Airedale, the fact of the matter is that the same cannot be said of the practices of members of the professions supplementary to medicine, none of whose controlling bodies as yet recognise acupuncture as a part of the practices of the professions for which their state registered members are trained—and that is the distinction in this particular case of acupuncture between the professions supplementary to medicine and the exemption of doctors and dentists.
If physiotherapists—or chiropodists, occupational therapists or, indeed, nurses and members of other para-medical professions registered under Acts other than the Professions Supplementary to Medicine Act—practise acupuncture privately, then they do so, of course, as common law practitioners, just as do all the other acupuncturists who have no state registered profession.
I do not think that really I need to say very much more to reveal why, therefore, I feel I must resist the amendment. Of course I accept that members of the professions supplementary to medicine who also practise acupuncture are likely to practise it hygienically, but, then, so are the majority of the common law practitioners who do not also have a state registered profession. I think the point I have to come back to is that if we are to write these professions into the Bill as an exemption we would expect them to have acupuncture as an accepted place in their practices, and I am advised that none of the controlling bodies of these professions has yet recognised acupuncture as a part of the practices of the professions for which their state registered members are trained.
Lord Airedale: I do not understand this at all. How does the Minister's argument overcome the fact that the issue of the licence by the local authority is mandatory under subsection (3)? That subsection says that the local authority, on application, "shall" register the applicant. They cannot say, "Your particular medical field does not practise acupuncture and, therefore, we are not going to issue you a licence". He will say to them, "Under subsection (3) you have to; it is mandatory upon you". I do not understand the Minister's argument at all.
Lord Belstead: The argument is simple. The exemptions are for medicine and for dentistry, and for no others.
The Earl of Halsbury: Can the noble Lord tell me, is there any consultant acupuncturist practising on the National Health Service in any of our hospitals?
Lord Belstead: I have no idea of the answer to that particular question.
The Earl of Halsbury: If the noble Lord's argument is based on the fact that acupuncture is recognised by the profession, I would have thought that in that case there would be consultant acupuncturists in our hospitals the heads of acupunctural firms, and so on, But I have never heard of one. It is not as if the argument of the noble Lord as to the physiotherapists and their not being inspected, applied. Consultant physiotherapists—in private practice, that is—are subject to inspection and investigation by their own chartered bodies. I do not follow the noble Lord's argument. I am at one with the noble Lord, Lord Airedale, at this stage.
On Question, amendment negatived.
[Amendment No. 59 not moved.]
Clause 14 agreed to.
Clause 15 [Tattooing, ear-piercing and electrolysis]:
Baroness Birk Baroness Birk moved Amendment No. 60:
Page 15, line 34, leave out ("or").
The noble Baroness said: In moving Amendment No. 60 perhaps I may speak also to Amendment No. 61. This is to ensure that ultraviolet tanning equipment for public use on a commercial basis is brought within the provisions for registration by local authorities of premises where acupuncture or tattooing, ear-piercing or electrolysis is carried out. This has been requested by many people and a number of doctors have written to Members of another place and some to Members of this House saying how important it is that there should be control of something which is gaining in popularity and which numbers of people are patronising nowadays.
There is a danger of infection to the operators themselves if adequate precautions are not taken, and unless the standards of performance and equipment are satisfactory there can be a danger to the health of those who are at the receiving end. Although the skin is not pierced in the case of ultraviolet rays, as it is in the other activities which are registered, the skin can be burned and require medical treatment. People

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are substantially unclothed under the rays and lie on couches or reclining chairs which themselves need to be kept clean. Although the registration is of the premises rather than of the personnel, the fact that these places would have to be registered would, I think, also improve the standards of some of them and of the operators. I beg to move.
Lord Belstead: As the noble Baroness indicated in her speech, the possible health hazards from exposure to ultraviolet radiation are different from acupuncture because the processes are different. The information I have is that the Health and Safety Executive have made an approach to the local authority organisations as to whether some form of registration would be useful so far as ultraviolet tanning is concerned and they hope to have discussions on the matter. As ultraviolet tanning and acupuncture are different processes and the dangers from them are of different kinds, I do not think that one can take acupuncture as being an example in trying to put this amendment into the Bill. I wonder whether the noble Baroness will agree that the thing to do is to await the outcome of the Health and Safety Executive approach to the local authority organisations, which may lead to registration for ultraviolet tanners but this will depend on the outcome of those discussions.
Baroness Birk: Is the Minister able to say whether we shall get a result from those deliberations before this Bill becomes a statute?
Lord Belstead: I am afraid that I cannot promise that.
Baroness Birk: We do not want another little Bill. Perhaps as the matter has now been raised by way of an amendment the Minister may possibly nudge them on a little. It is quite a small point and this is the place in the Bill for it. It is better than making orders or amending later.
Lord Belstead: Perhaps this is something on which I should write to the noble Baroness.
Baroness Birk: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 61 not moved.]
Lord Belstead Lord Belstead moved Amendment No. 62:
Page 16, line 18, at end insert ("but do not include information about individual people whom the applicant has tattooed or given electrolysis or whose ears he has pierced").
The noble Lord said: This is the same in its effect as Amendment No. 57, to which I have already spoken. I beg to move.
On Question, amendment agreed to.
Clause 15, as amended, agreed to.
Clause 16 [Provisions supplementary to sections 14 and 15]:
10.36 p.m.
Lord Belstead Lord Belstead moved Amendment No. 63:
Page 17, line 1, before ("section") insert ("under").
The noble Lord said: This is a drafting amendment. I beg to move.
On Question, amendment agreed to.
Clause 16, as amended, agreed to.
Clause 17 [Power to enter premises (acupuncture, etc.)]:
Lord Belstead Lord Belstead moved Amendment No. 64:
Page 18, line 22, leave out ("or that the occupier is temporarily absent").
The noble Lord said: Since some registered acupuncturists, tattooists, ear-piercers and electrolysists are likely to have premises which are part of and accessible only through their homes, it has been pointed out that it would be undesirable if local authority officers were to be granted warrants to enter such premises only on the grounds that the occupiers were temporarily absent from them. The Government have accepted that these representations are reasonable and have decided that they ought to be acceded to. I beg to move.
On Question, amendment agreed to.
Lord Belstead Lord Belstead moved Amendment No. 65:
Page 18, line 30, leave out ("or that the occupier is temporarily absent").
On Question, amendment agreed to.
Clause 17, as amended, agreed to.
Clause 18 agreed to.
Clause 19 [Sale of food from stalls and containers—provision for registration]:
Lord Belstead Lord Belstead moved Amendment No. 66:
Page 19, line 20, leave out from ("shall") to ("unless") in line 21 and insert ("hawk food").
The noble Lord said: I beg to move Amendment No. 66 and speak to Amendments Nos. 67 and 70. These amendments do not affect the scope of Clause 19 which continues to require any person, with certain specified exemptions, who operates as a mobile food trader or trades in food at a single position in the open air to be registered with the local authority. It is considered that this type of food trading, which may be carried on regularly or only intermittently, is more precisely described by terms "hawk food" or "food hawking", and an appropriate amendment of the Part to the Bill and side-headings to the clauses would be made if the Committee agrees to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Belstead Lord Belstead moved Amendment No. 67:
Page 19, line 25, leave out from first ("for") to ("unless") in line 26 and insert ("hawking").
On Question, amendment agreed to.
Lord Belstead Lord Belstead moved Amendment No. 68:
Page 19, line 26, at end insert—
("( ) Subsection (1) above applies to a person who hawks food as an assistant to a person registered under this section unless—

(a) he is normally supervised when so doing; or

(b) he assists only as a temporary replacement.").

The noble Lord said: I beg to move Amendment No. 68 and speak to Amendments Nos. 78, 79, 80 and 81. Paragraph (g) of subsection (9) as printed provided partial exemption from the need to be registered under Clause 19 for an assistant to an authorised street trader who is himself exempted by paragraph (e) of subsection (9). These amendments simply extend the exemption afforded to the assistant to coincide with that already given to an authorised street trader. I realise that this is a subject on which the noble Baroness, Lady Birk, or the noble Baroness, Lady Fisher, and I did not wholly agree: whether street traders should be allowed to have assistants without having an extra licence. As things stand at the moment, the Committee agreed that an extra licence was not necessary. Therefore, I think that it is reasonable for me to move the amendment. I beg to move.
Baroness Birk: Is it necessary to perpetuate for all of history and the future the term "hawk food" and "food hawking"? Could not the Home Office, the Minister or somebody with a nice, creative mind think out another phrase which falls more easily on our ears and to our eyes than "hawk food" or "food hawking"?
Lord Belstead: I think we have just thought it up, and that it is rather a good one. I do not think at this hour in the evening I can be any more creative.
On Question, amendment agreed to.
Lord Belstead moved Amendment No. 69:
Page 19, line 40, leave out from ("with") to end of line 41 and insert ("food hawking").
The noble Lord said: I beg to move Amendment No. 69 and would ask your Lordships' permission to speak to Amendments Nos. 72, 76, 82, 83, 84 and 86. These amendments make minor technical changes consequent upon previous amendments or for drafting improvements. I beg to move.
On Question, amendment agreed to.
Lord Belstead Lord Belstead moved Amendment No. 70:
Page 20, line 7, at end insert—
("( ) For the purposes of this section a person hawks food if for private gain

(a) he goes from place to place selling food or offering or exposing food for sale; or

(b)he sells food in the open air or offers or exposes food for sale in the open air,

unless he does so—

(i) as part of, or as an activity ancillary to, a trade or business carried on by him or some other person on identifiable property; or

(ii) he falls within subsection (9) below.").

The noble Lord said: This amendment is consequential upon Amendment No. 66. I beg to move.
On Question, amendment agreed to.
Lord Belstead Lord Belstead moved Amendment No. 71:
Page 20, leave out lines 10 to 12.
The noble Lord said: I beg to move Amendment No. 71 and would speak also to Amendments Nos. 75 and 77. The amendments are concerned with
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certain of the exemptions from Clause 19 listed in subsection (9). The exemptions provided for by paragraphs (a)(i), (a)(ii), (a)(iv) and (c) of Clause 19(9) are no longer necessary. In the context of the newly amended subsection (9) and the definition of "food hawker" in the new subsection provided by Amendment No. 70, the sale or offer or exposure of food for sale dealt with in those four paragraphs does not need specific exemption. It is with that that these amendments are dealing. I beg to move.
On Question, amendment agreed to.
Lord Belstead Lord Belstead moved Amendment No. 72:
Page 20, line 13, leave out ("held under a grant or presumed grant or") and insert ("the right to hold which was acquired by virtue of a grant (including a presumed grant) or acquired or established by virtue of").
The noble Lord said: This amendment is consequential on Amendment No. 69. I beg to move.
On Question, amendment agreed to.
Lord Belstead Lord Belstead moved Amendment No. 73:
Page 20, line 14, after ("order") insert—
("( ) at a notified temporary market;").
The noble Lord said: I beg to move Amendment No. 73 and would speak also to Amendments Nos. 74 and 85. The Government undertook in another place to consider the implications of a proposed amendment to Clause 9 which would have the effect of exempting the sale of food at a pleasure fair within the meaning of the Public Health Act 1961.
By-laws made by a number of local authorities under powers provided by the relevant section of the 1961 Act require the operator to notify the local authority in advance of the pleasure fair taking place. The Government accept that it is unnecessary, for the purposes of identifying food hawkers at the pleasure fair, to require them to be registered under Clause 19, provided that the pleasure fair has been notified to the local authority in compliance with the by-laws.
In the light of this, the Government have further considered the position of food hawkers at temporary markets within the meaning of Clause 32 of this Bill, which requires the holding of a temporary market to be advised in advance. The Government have concluded that both situations are comparable and justify exemptions, and the amendments proposed provide exemptions both in pleasure fairs and in temporary markets. Accordingly, I beg to move.
On Question, amendment agreed to.
Lord Belstead Lord Belstead moved Amendment No. 74:
Page 20, line 14, at end insert—
("( ) at a notified pleasure fair; or").
The noble Lord said: This amendment is consequential on Amendment No. 73. I beg to move.
On Question, amendment agreed to.
Lord Belstead Lord Belstead moved Amendment No. 75:
Page 20, line 15, leave out sub-paragraph (iv).
The noble Lord said: This is consequential on Amendment No. 71. I beg to move.
On Question, amendment agreed to.
Lord Belstead Lord Belstead moved Amendment No. 76:
Page 20, line 22, at end insert ("or").
The noble Lord said: This is consequential on Amendment No. 69. I beg to move.
On Question, amendment agreed to.
Lord Belstead Lord Belstead moved Amendment No. 77:
Page 20, line 23, leave out paragraph (c).
The noble Lord said: This amendment is consequential on Amendment No. 71. I beg to move.
On Question, amendment agreed to.
Lord Belstead Lord Belstead moved Amendments Nos. 78 to 81:
Page 20, line 28, leave out ("by any person").
line 30, leave out ("who have authorised him") and insert ("by a person whom the local authority have authorised").
line 34, after ("sale)") insert ("or by a person acting as an assistant to a person so authorised").
line 37, leave out from ("above") to end of line 42.
The noble Lord said: Amendments Nos. 78 to 81 are consequential on Amendment No. 68. I beg to move.
On Question, amendments agreed to.
Lord Belstead Lord Belstead moved Amendment No. 82:
Page 20, line 42, at end insert—
("or
(b) to the sale or offer or exposure for sale of food in containers of such materials and so closed as to exclude all risks of contamination.").
The noble Lord said: This amendment is consequential on Amendment No. 69. I beg to move.
On Question, amendment agreed to.
Lord Belstead Lord Belstead moved Amendments Nos. 83 and 84:
Page 20, leave out lines 44 and 45.
Page 21, line 8, leave out from ("drugs") to end of line 11.
The noble Lord said: These amendments are consequential on Amendment No. 69. I beg to move.
On Question, amendments agreed to.
Lord Belstead Lord Belstead moved Amendment No. 85:
Page 21, line 11, at end insert—
(""notified pleasure fair" means a pleasure fair, as defined in subsection (2)(a) of section 75 of the Public Health Act 1961, notice of which has been given to the local authority in accordance with byelaws under that section;
"notified temporary market" means a temporary market, as defined in subsection (6) of section 32 below, notice of which has been given to the local authority in accordance with subsection (2) of that section;").
The noble Lord said: This amendment is consequential on Amendment No. 73. I beg to move.
On Question, amendment agreed to.
Lord Belstead Lord Belstead moved Amendment No. 86:
Page 21, leave out lines 12 to 16.
The noble Lord said: This amendment is consequential on Amendment No. 69. I beg to move.
On Question, amendment agreed to.
Clause 19, as amended, agreed to.
Clause 20 agreed to.
Schedule 5 [Highway amenities]:
Lord Belstead Lord Belstead moved Amendment No. 87:
Page 77, line 24, leave out ("to use it").
The noble Lord said: In moving Amendment No. 87, I would speak also to Amendment No. 88. These are drafting amendments. I beg to move.
On Question, amendment agreed to.
Lord Belstead Lord Belstead moved Amendment No. 88:
Page 78, line 41, leave out ("to use it").
On Question, amendment agreed to.
Schedule 5, as amended, agreed to.
Lord Denham: I think that this is probably a convenient moment to break. I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.