Lords Sitting of 19 October 1982

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

Capital Gains Tax
Lord Monson: My Lords, I beg leave to ask the first Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how they justify the fact that whereas a single person with an annual income of £6,500, of which £5,000 is derived from capital gains and £1,500 from earnings or investment income, pays no tax whatsoever, another single person whose identical annual income is all earned must pay a total of £2,050·42 in income tax and national insurance contributions.
The Secretary of State for Trade (Lord Cockfield): My Lords, the noble Lord has correctly illustrated the difference between the individual's capital gains tax threshold—namely, £5,000—and the single person's income tax allowance of £1,565. Unlike income accruing in a single year, the gain realised on the sale of an asset may have accrued over many years and represent no more than an inflationary gain. It is appropriate that differences of this kind should be reflected in the respective tax treatment.
Lord Monson: My Lords, I thank the noble Lord for that reply. Nevertheless, would he not agree that anyone with access to capital or to contacts should have little difficulty in making a fairly consistent £5,000 a year from short-term capital gains, by which I mean gains deriving from assets held for only a few
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weeks or months? In view of this, should not personal allowances for wage and salary earners be raised to more or less the same level, bearing in mind that a marginal rate of tax and national insurance combined of 38¾ per cent. on every pound earned in excess of £31 a week for a single person is unusually high, both by historical standards, taking inflation into account, and by the standards of other industrialised nations?
Lord Cockfield: My Lords, the noble Lord clearly moves in different circles from the rest of your Lordships' House. A person who regularly makes £5,000 a year in short-term capital gains must be an unusual individual. Quite apart from that, the reason for the £5,000 exemption was to take out of the tax people showing small gains, many of which had accrued over a long period of time, and I should be surprised to find the noble Lord advocating that such people should be brought within the charge.
2.39 p.m.
Lord Monson: My Lords, I beg leave to ask the second Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how they justify the fact that an individual who paid £10,000 in January for a holiday cottage, the value of which has since remained static in real terms, will incur a capital gains tax liability of between £9,000 and £10,500 if he sells today.
Lord Cockfield: My Lords, holiday cottages are treated in the same way as other assets for capital gains tax purposes. We have now provided relief for future inflation and also increased the threshold to £5,000. These measures will over time make the tax fairer and less oppressive. We could not go back and provide what, in effect, would be retrospective relief for past inflation.
Lord Monson: My Lords, I thank the noble Lord for his reply and I appreciate the point that he is trying to make. But would he not agree that, while the capital gains tax concessions made in the 1982 Finance Act are fair and even generous in respect of assets acquired from 1982 onwards, particularly where short-term gains are concerned, they are of virtually no use to people who have held an asset for 10, 15 or 20 years? Is it not almost immoral to levy an extremely high tax upon bogus paper gains which may, in some cases, actually represent losses in real terms, purely because of the inflation of the past 12 years, for which Conservative Administrations have been almost as responsible as Labour ones?
Lord Cockfield: My Lords, the noble Lord will not be surprised if, once again, I do not find myself in agreement with him. The £5,000 exemption for capital gains tax purposes will be of benefit to all people with a modest amount of capital who have made gains, which may be inflationary or real gains, over many years past. One needs to look at the two measures together—the £5,000 exemption and the future protection against inflation—to get a true picture of what has been done. The cost of going back to 1965 and providing relief for inflation which occurred back to that date would be far too high to be tolerable.
Lord Monson: My Lords, would not the noble Lord agree that it would be better to levy a higher rate on genuine gains—shall we say 40 per cent.—and provide indexation for all past gains? The two would surely balance out and the whole thing would be very much fairer than it is at present.
Lord Cockfield: My Lords, if I understood the noble Lord aright, he was advocating a higher rate of tax on short-term gains. In fact, in the early days of the tax, gains made in less than 12 months were charged as ordinary income. This produced very little tax yield, the reason quite simply being that people hold the assets until the period of high charge has passed.
Lord Elwyn-Jones: My Lords, do not these exchanges indicate how fortunate the House is that it does not have to consider the details of Finance Bills?
Lord Cockfield: My Lords, I am most grateful to the noble and learned Lord for his very wise intervention.

EEC: Duty Free Concession Withdrawal
2.43 p.m.
Lord Boyd-Carpenter: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what reply they have sent to the EEC Commission in response to that body's purported instruction to remove duty free concessions on sales in aircraft and at airports of goods produced outside the EEC.
Lord Cockfield: My Lords, we have agreed, in common with the Governments of the other member
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states of the European Community, that with effect from 1st January. 1983, the relief from customs duty and agricultural levies hitherto given on goods intended to be landed by intra-Community travellers as personal allowances shall be withdrawn. The existing reliefs from excise duties and VAT, which account for most of the benefit on personal purchases, will continue to be given.
Lord Boyd-Carpenter: My Lords, I thank my noble friend for that extremely informative reply. May I ask him whether the Government will continue to bear in mind, as from their decision they plainly have borne in mind, the fact that duty free sales contribute a major element to the finance of airlines, which are going through a period of great difficulty, and also make a major contribution to the finance of the British Airports Authority?
Lord Cockfield: My Lords, I understand entirely the point that my noble friend is making. Indeed, in the discussions which led up to the final decision we made the point very, very firmly indeed that the exemption from excise duties and VAT should continue. We received specific assurances on that point.
Lord Winstanley: My Lords, is the noble Lord aware that some of us would shed few tears if the whole pantomime of duty free goods on aircraft disappeared altogether? Is the noble Lord aware that sometimes the duty free arrangements appear to be what is colloquially known as a rip-off, under which our wives are persuaded to buy things they do not want at prices far in excess of those for which they could have obtained the same goods in a cash-and-carry at home?
Lord Cockfield: My Lords, there are always some people who deplore the minor advantages which give pleasure to other people.
Lord Ponsonby of Shulbrede: My Lords, to follow up this Question from the noble Lord, Lord Boyd-Carpenter, is the noble Lord aware that the duty free sales contribute something like £100 million a year to keeping down fares both on aircraft and on ferries and that if they were abolished there would be a very substantial increase in fares? The noble Lord did assure the House that so far as Brussels is concerned there is not too much danger that they will be abolished, but can he also assure the House that there is no danger of the European Court ruling that the concessions are not entirely within the rules of the European Community?
Lord Cockfield: My Lords, I clearly have no power to influence any decisions that may be taken by the European Court. We have no reason to believe that there is anything illegal in the exemption from VAT and the excise duties. This is a matter upon which we have taken a very firm line and we shall continue to do so. May I quote the words actually used in the European Parliament by Commissioner Tugendhat on 15th June. What he said was this:
"We certainly do not wish to go any further than we have done. The overwhelming bulk of sales in duty free shops, goods of Community origin, are quite unaffected by this. That is the Court's judgment."
Baroness Jeger: My Lords, could the Minister say whether any thought is being given to the possibility of passengers picking up their duty free goods at the port of arrival so that there is a great saving in the shuttling of bottles all around the world?
Lord Cockfield: My Lords, that is a suggestion which has been made on a number of occasions. It has been considered, and I gather that it would give rise to considerable difficulties.
Lord Molloy: My Lords, may I ask the noble Lord whether it would be possible for the representations of the noble Lord, Lord Boyd-Carpenter, to be taken on board by the Government and for representations along the lines which he has suggested to be adopted by the Government and made to the EEC?
Lord Cockfield: My Lords, I have made it clear in the replies I have already given, and I understood that this had been accepted by my noble friend Lord Boyd-Carpenter, that there is a very clear distinction between import duty—customs duty—and agricultural levies on the one side and excise duty and VAT on the other. It is only the first items which, so far as this country is concerned, are of very limited importance to intra-Community travellers. It is only in respect of those items that the ruling applies. So far as the other items are concerned, we propose maintaining our objection to any attempt to abolish the exemption.
Lord Ponsonby of Shulbrede: My Lords, am I not right in saying that, as from 1st January next, a state of confusion may exist in a place like Terminal I at Heathrow, where passengers travelling from Terminal 1 to Mexico will be able to buy duty-free American cigarettes although passengers travelling to Brussels will have to pay a different price for the same goods?
Lord Cockfield: My Lords, the Question does not relate to travellers to Mexico, however desirable a destination that might be.
Lord Ponsonby of Shulbrede: My Lords, my point is that travellers using the same terminal who are going to Brussels will not have the benefit of the concessions with regard to goods which are manufactured in America, like American cigarettes, which will accrue to passengers to Mexico who use the same terminal.
Lord Cockfield: My Lords, the actual administrative arrangements for dealing with these matters have been discussed in detail with the operators of the duty free shops concerned. An arrangement has been arrived at under which the relevant duty will be collected from the operators, who will then pass it on in the price. I would doubt in these circumstances—because the amounts involved are very small indeed and so most purchases are not affected at all—whether difficulties of the kind which the noble Lord has in mind would arise; but I am very willing to have the matter looked at and will communicate with the noble Lord.
Lord Kennet: My Lords, are the Government aware that a great many airline pilots do not much like carrying people with a lot of little fire-bombs all over
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the world? There was recently an accident when a re-fuelling team on the ground managed to set fire to a British Airways aircraft and the only people who were hurt were those people who were hugging their duty free liquor to their bosoms as they jumped out.
Lord Cockfield: My Lords, I think it might be valuable to draw the noble Lord's remarks to the attention of people intending travelling on airplanes hugging bottles of duty free liquor to their breasts.

Tractors: Design Speed
2.51 p.m.
Lord John-Mackie: 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 intend to press the Council of Ministers to adopt a maximum design speed of 33 km/h for wheeled agricultural and forestry tractors and to move as speedily as possible towards the implementation of the comprehensive tractor harmonisation programme within the Community, as recommended by the European Communities Committee.
The Minister of State, Ministry of Agriculture, Fisheries and Food (Earl Ferrers): My Lords, the Government have already done so. We have urged, and are likely to secure, early agreement to the raising of the limit to 30 kilometres per hour. This will be of considerable benefit to United Kingdom tractor manufacturers.
Lord John-Mackie: Yes, my Lords, I am sure that companies engaged in tractor manufacturing—in which this country is the biggest in Europe—will be delighted at this, but could the noble Earl say what he means by "early"? It would be delightful for tractor manufacturers if they knew when; the noble Earl said "early" and I would like to know when "early" is.
Earl Ferrers: My Lords, early tends to be earlier rather than later. I can tell the noble Lord that the issue is likely to go to the Committee of Permanent Representatives on this basis later this month and thereafter, of course, it will go to the Council of Ministers.
Lord Cledwyn of Penrhos: My Lords, is the noble Earl aware that the Select Committee on Agriculture, of which I have the privilege of being the chairman, recommended that this proposal should be accepted and will be delighted that the Government are taking this step—especially in view of the fact that all the evidence before the Select Committee from representatives of the farmers and of the producers was of the unanimous view that this proposal should go through?
Earl Ferrers: My Lords, I am very grateful to the noble Lord, Lord Cledwyn of Penrhos, for that. I thought that he was going to castigate me for not going for 33 kilometres per hour, which was the figure in the noble Lord's Question. I can tell him that the Government did press for 33 kilometres per hour. In fact, the

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agreement was for 30 kilometres per hour, but there is a tolerance of 10 per cent., which will permit manufacturers to design for 33 kilometres per hour.
Lord Collison: My Lords, is the noble Earl aware that there has been concern in some places with regard to the safety factor? Is he aware also that when Sub-Committee B dealt with this matter a copy of the proposals was sent to the National Union of Agricultural Workers (now a section of the Transport and General Workers' Union) and that they raised no objections to it; and that from the workers' point of view they seem to be quite happy and accept this proposal?
Earl Ferrers: My Lords, I am very grateful to the noble Lord, Lord Collison, for telling me once again that the National Union of Agricultural Workers which was, and which is now part of the Transport and General Workers' Union, has reacted in its characteristically helpful manner.

Southern Water Authority Bill
Read a third time, with the amendments, and passed, and returned to the Commons.

Civic Government (Scotland) Bill [H.L.]
2.54 p.m.
The Minister of State, Scottish Office (The Earl of Mansfield): My Lords, I beg to move that the Commons amendments be now considered.
Moved, That the Commons amendments be now considered.—(The Earl of Mansfield).
On Question, Motion agreed to.
COMMONS AMENDMENTS
[References are to Bill [87] as first printed for the Commons]
1 Clause 3, page 2, line 17, leave out from ("and") to end of line 21 and insert—
(", subject to the following provisions of this section, reach a final decision on it within 6 months.
(2) On summary application by the licensing authority within the 6 month period referred to in subsection (1) above, the sheriff may, if it appears to him that there is good reason to do so, extend that period as he thinks fit.
(3) The applicant shall be entitled to be a party to a summary application under subsection (2) above.
(4) Where the licensing authority have failed to reach a final decision on the application before the expiry of—

(a) the 6 month period referred to in subsection (1) above, or

(b) such further period as the sheriff may have specified on application under subsection (2) above,

the licence applied for shall be deemed to have been granted or, as the case may be, renewed unconditionally on the date of such expiry and shall remain in force for one year, but this subsection is without prejudice to the powers of revocation under section 7 (8)(a) of this Act, or variation under paragraph 11 of Schedule 1 to this Act and of suspension under paragraphs 12 and 13 of that Schedule and to the provisions of paragraph 9 (3A) of that Schedule.
(5) The licensing authority shall make out and deliver the licence to the applicant to whom it has been deemed to have been granted under subsection (4) above.")
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their said amendment. Perhaps I can speak also to Amendment No. 331, to save time. By way of very short preface, the Marshalled List contains what at first glance would seem to be a formidable list of amendments. Perhaps I can reassure your Lordships by saying that a great many of the amendments fall quite conveniently into groupings. Therefore, with the leave of the House, I shall be able to move a great many of them en bloc. We can consider them in that manner although, of course, if at any moment any noble Lord wishes to break up the bloc, then that will be perfectly easy as well.
Amendment No. 1 provides for a more effective safeguard against delay on the part of licensing authorities in taking decisions on applications to be included in Clause 3. While appeal against refusal of a licence is covered in the Bill, appeal against delay is not specifically mentioned and redress can only be obtained by lengthier and more costly procedures. Given the overriding need for decisions to be taken as quickly as possible in the interests of the applicant's livelihood, licensing authorities should in normal circumstances be obliged to reach a decision on a licensing application within six months. The amendment seeks to strike an equitable balance between the rights of the applicant and the adminstrative needs of the local authority by giving the authority the right to petition the sheriff for an extension of the six-month period in specific cases where it has proved impossible to complete inquiries on an application within six months. Authorities should not delay decisions unnecessarily, but neither should they be forced to take over-hasty decisions—and this clause as amended seeks to cover all reasonable eventualities.
The sanction of failure to take a decision within six months is that where no decision has been taken the licence shall be deemed to have been granted or renewed unconditionally and shall immediately be made out and delivered to the applicant. However, since objectors will have no right of appeal against the grant of such a licence, and since it will not be possible for the licensing authority to impose operating conditions upon it, there must be safeguards against any possible abuse on the part of the licensee; accordingly, a licence granted under this clause remains in force for one year only, rather than the normal three. While it is in force, the licensing authority will be able to exercise its regulatory powers under Schedule 1 to vary or suspend the licence where a change in circumstances or misconduct render this desirable.
Amendment No. 331 is a minor drafting and consequential amendment which inserts appropriate reference to Clause 3, as amended, into paragraph 9(4) of Schedule 1. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
Lord Ross of Marnock: My Lords, may I say as a preface that I do not expect we shall be terribly long because I do not think my voice will last out. I attended a well-known and important international seminar in Scotland last Wednesday, at Hampden

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Park, and I am afraid that my voice is all the worse for that—especially when Scotland scored the second goal. But this is quite an important amendment because, as things stand at the moment, district licensing authorities have to deal with each application and reach a final decision upon it without unreasonable delay. If one suggests to them that they can have six months and also, if they are hard pressed for time, that they can go to the sheriff and get a little longer, I do not believe it quite fits in with the original intention of your Lordships' House. I would like a little more explanation from the noble Earl the Minister about how he considers that six months, with a possible extension granted by the sheriff, meets with our wishes in the first instance. I do not know who prompted the Government to do this in another place—it may have been a friend of mine; I do not know—but I personally do not consider that this is a very good amendment. I am not going to press it but I would like some reasonable consideration of it.
May I say to your Lordships that we have only 365 amendments, and let us not rush away with the feeling that our consideration of them will be overly quick because we have a completely new clause here, which necessitated the back-up of another schedule of about 20 pages, dealing with sex shops. We have another important new clause in relation to indecent photographs of children and how we should tackle that problem.
There are now new clauses within this Bill that we have not seen before, and knowing how anxious your Lordships are to give due prominence and attention to important matters in Scotland I expect there will be many taking part in our debate.
The Earl of Mansfield: My Lords, the noble Lord will know that these provisions were intoduced in the other place on Report in response to a debate which took place in Committee, to the effect that there should be a more substantial safeguard against delay on the part of the licensing authority in taking a final decision on an application than the present provision that such decision must be reached without unreasonable delay. A cut-off date within which the district council must dispose of the application was suggested. Members accepted that an absolute cut-off point could present problems for the authority who would not, with the best will in the world, have been able to complete necessary inquiries on the application within the prescribed period. I think this came about as a result of the debate, perhaps as a compromise, and it seems to be reasonably logical in the circumstances.
On Question, Motion agreed to.
COMMONS AMENDMENTS
2 Page 2, line 28, leave out from ("may") to ("at") in line 31 and insert ("for the purposes specified in subsection (1A) below")
3 line 43, at end insert—
("(1A) The purposes referred to in subsection (1) above are—

(a) where a licence is in force—

(i) seeing whether the terms of the licence are being complied with and, if they are not, obtaining information in respect of such non-compliance;

(ii) obtaining information relevant to the question whether the terms of the licence should be varied under paragraph 11 of Schedule 1 to this Act or under paragraph 11 of Schedule 1 to this Act or
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whether the licence should be renewed or, under paragraph 12 or 13 of that Schedule, suspended; or

(b) where the grant of a licence has been applied for, obtaining information relevant to the question whether the application should be granted.

(1B) Any person who—

(a) being a person for the time being in charge of any premises, vehicle or vessel, fails without reasonable excuse to permit a constable or an authorised officer of a licensing authority or a fire authority who, in pursuance of subsection (1) above, demands to do so to enter or inspect the premises, vehicle or vessel or obstructs the entry thereto of a constable or such an officer, in pursuance of that subsection:

(b) being a person in respect of whom powers are exercised under subsection (1) above on being required under that subsection to do so by a constable or an authorised officer of the licensing authority or the fire authority, fails without reasonable excuse to produce an) equipment, plant, apparatus or stock-in-trade or to permit a constable or such an officer, in pursuance of that subsection to inspect any equipment, plant, apparatus or stock-in-trade:

(c) being a holder of a licence, on being required by a constable or an authorised officer of the licensing authority or the fire authority, in pursuance of subsection (1) above to produce any records or other document required by or under this Part or Part II of this Act to be kept by the holder of a licence, fails without reasonable excuse to produce them:

shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding £200.").
4 Page 3, line 4 leave out ("a reasonable time") and insert ("5 days").
5 line 5, at end insert—
("(2A) Any person who, having been required under subsection (2) above to produce a licence, fails without reasonable excuse to do so within the period of 5 days specified in that subsection shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding £25.").
6 line 14, leave out ("being") and insert ("to be").
7 line 22, leave out ("being") and insert ("to be").
8 Clause 6, page 3, line 42, at end insert—
("(4) Any person who fails without reasonable excuse to permit a constable in pursuance of a warrant granted under this section to enter and search any premises, vehicle or vessel or who obstructs the entry thereto or search thereof by a constable shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding £200.").
The Earl of Mansfield: My Lords, with the leave of the House, I beg to move that this House doth agree with the Commons in their Amendments Nos. 2 to 8 en bloc. I wish also, in moving these amendments, to speak to Amendments Nos. 12 and 13.
We come to Clause 5, which deals with powers of entry and inspection by an authorised officer of the licensing authority, the fire authority or a constable.
The powers relate to any premises, vehicle or vessel in respect of which a licence is in force or has been applied for, but the purposes of these powers, referred to in paragraph 5(1), we felt was less than clear. Amendment No. 2 and the first part of Amendment No. 3 therefore clearly define the purposes for which the power of entry may be used.
The second part of Amendment No. 3 and Amendments Nos. 4, 5, 8, 12 and 13 are primarily drafting amendments designed to move the offence provisions on obstructing an authorised officer from Clause 7 into Clauses 5 and 6, which contain the relevant powers of search and entry, et cetera. In doing this, they make two minor changes to the existing provisions. First, Amendment No. 4 requires a person

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to produce his licence "within 5 days" rather than "within a reasonable time", and secondly, by Amendment No. 13, a person convicted of this relatively minor offence will no longer be liable to have his licence revoked under Clause 7(8).
Amendments Nos. 6 and 7 are also primarily drafting amendments. Under subsections (3) and (4) of Clause 5, constables who are not in uniform and authorised officers of licensing or fire authorities must show their credentials before exercising the powers of entry and inspection conferred on them by subsection (1) of Clause 5. The person to whom the credentials must be shown, however, is currently referred to as the person in respect of whom the powers are being exercised, in the present tense rather than the future tense. The amendments are, therefore, purely drafting and are designed to make it clear that credentials must be shown before the powers are exercised. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
Lord Ross of Marnock: My Lords, I think these are all reasonable drafting amendments. The only one that raises any question is the one that defines a reasonable time for production of a licence by the individual as five days. I do not suppose there is any application to the sheriff for an extension of those five days. Having heard of six months being reasonable in respect of something else, I should have thought that five days might not be a good figure, bearing in mind that a weekend might intervene and there might be some hold-ups. I am not going to oppose this, but I do not think there has been any very clear thinking in respect of these specific periods put in elsewhere.
On Question, Motion agreed to.
COMMONS AMENDMENT
9 Clause 7, page 4, line 4, leave out ("200") and insert ("500").
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 9, and, with your Lordships' leave, I should like to speak also to Amendments Nos. 11, 94, 101, 103, 106, 128, 151, 157 and 161.
Amendment No. 9 increases the penalty for the offence under Clause 7(1), of doing anything for which a licence is required under Part II of the Bill without having a licence, from £200 to £500. The Government agreed to make this increase in response to arguments advanced by the Opposition on the basis that £200 was not a sufficient deterrent. The other amendments effect consequential changes in the penalties for various offences in Part II of the Bill, mainly dealing with dishonesty, and are designed to keep those penalties in step with the revised Clause 7(1) penalty. In addition, Amendment No. 151 removes the alternative penalty of a period of imprisonment not exceeding 60 days for the offence in Clause 35(3) of a metal dealer keeping false records, the Government having accepted the Opposition's arguments that imprisonment was not an appropriate sanction for this offence.
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Moved that this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENT
10 Page 4, line 13, leave out ("wilfully")
3.5 p.m.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 10. With your Lordships' permission, I will speak also to Amendments Nos. 14, 15. 126, 155 and 158.
At Committee and Report stage, the Government accepted Opposition views that "wilfully" could be dropped without affecting the drafting of the subsection. Amendment No. 10 achieves this removal of unnecessary wording. Amendment No. 14 is a drafting amendment also to remove unnecessary verbiage.
Amendment No. 15 is a drafting amendment to remove the element of certification from the requirement by the clerk of court to advise the licensing authority of any conviction of a licence holder. At present clerks simply convey the details of conviction to the licensing authorities by copying the extract from their records. Certification, as the term suggests, calls for something more elaborate and, in the context, is unnecessary. Amendment No. 15 would ensure that the present simple procedure would remain in operation. Amendments Nos. 126, 155 and 158 are in identical terms. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
11 Page 4, line 17, leave out ("200") and insert ("500")
12 line 34, leave out subsections (6) and (7).
13 Page 5, line 24, after ("under") insert ("section 5 (other than subsection (2A) thereof), 6 or").
14 line 27, leave out ("that is to say an order").
15 line 32, leave out ("certified extract of such conviction") and insert ("extract of such conviction and sentence (if any)").
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 11 to 15 inclusive en bloc. They are consequential amendments to which I have already spoken.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENT
16 Page 5, line 35, at end insert:
("(9A) A person may appeal against an order under subsection (8) above in the same manner as against sentence and the court which made the order may, pending the appeal, suspend the effect of the order.
(9B) A person may, at any time after the expiry of the first year of his disqualification under subsection (8) above, apply to the court which ordered the disqualification to remove it, and, on such application, the court may by order remove the disqualification as from such date as may be specified in the

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order or refuse the application, and, in either case, may order the applicant to pay the whole or any part of the expenses of such application.").
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 16. Concern was expressed during the Committee stage in another place, that there was no provision enabling a person disqualified by an order of the court to make an application to that court to have the disqualification removed. The Government undertook to draft such a provision and the second part of the amendment—subsection (9B)—achieves this. When considering the matter, it was also considered appropriate to make orders under subsection (8) subject to appeal and to permit courts to suspend orders pending any such appeal. The first part of the amendment—subsection (9A)—achieves this.
When considering the proposed provision, regard was had to the provisions of the Road Traffic Act in relation to the lifting of disqualifications under that Act. That Act narrates the circumstances which the court may take into account, specifies a minimum period of one year, or one half of the period of disqualification (whichever is the longer) before the application can be made, and prohibits repeated applications within a specified period where the first application is unsuccessful. It was felt that such elaborate provisions were not required here. The court may take any relevant considerations into account: the period of a year's disqualification before application can be made to have the disqualification lifted seems sufficient, and common prudence would normally discourage any applicant from repeated early reapplications when the first application is refused. That is because the court would be unlikely to reverse its earlier decision until a reasonable time had elapsed. The costs of the repeated unsuccessful application would fall on the applicant. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
Lord Ross of Marnock: My Lords, this is a sensible amendment. It was my honourable friend the Member for Glasgow, Garscadden who raised this matter. Disqualification means a loss of livelihood until such time as the licence is then granted. In keeping with the disqualification in respect of a road traffic licence, where a person can apply up to the period stated in the Transport Act, it is only fair that we should apply the same measure of reconsideration for the licences now required for all sorts of things in this Bill. I congratulate the Government upon having made the change.
On Question, Motion agreed to.
COMMONS AMENDMENT
17 Clause 8, page 6, line 1, leave out ("comprises or").
3.10 p.m.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 17. I shall also speak to Amendment No. 19. Amendment No. 17 is a drafting amendment to reduce verbiage. Amendment No. 19 expands the definition of "licence" to cover associated expressions relating to a licence. I beg to move.
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Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENT
18 page 6, leave out lines 3 to 6.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their amendment. It may be for the convenience of the House if we debate together all the amendments to Schedule 1, which flows from this clause. If that is so, I shall speak to all of them at once. I shall be speaking to Amendments Nos. 307 to 330 inclusive, and 332 to 359.
As can he seen, Schedule 1 was radically amended in the other place. It is, perhaps, a relief to know that the actual number of amendments is misleading because Schedule 1 is a complex inter-related whole and so it was often necessary to make a large number of amendments to achieve a single aim. The changes fall into six main groupings. I shall deal with these briefly but can expand if any noble Lord would like me to.
In the first place, important changes to the procedure for applying for a licence were made by Amendments Nos. 307 to 313 and Amendments Nos. 318, 320, 322 and 337. Amendments Nos. 315, 336 and 338 to 344 alter the procedures for licensing authority consideration of possible grant, renewal or suspension of licences.
Amendments 315, 340 and 346 within that group provided that the informal inquiries which licensing authorities may make in connection with such consideration may be given formal status in the decision-making procedure. In respect of the grant or renewal of a licence, Amendment 315 makes hearings discretionary rather than mandatory, and provides an alternative written mode of procedure where no hearing is to be held but the licensing authority none the less has objections or results of inquiries to take into account. The principal effect of this amendment—suggested to us by COSLA—will be to eliminate the need for a hearing in respect of unopposed applications. In relation to suspension Amendments 341 to 344 introduce a similar discretion in respect of hearings, though to safeguard the licence holder a hearing must be held before suspension is imposed. Amendment 344 simplifies the procedure for hearings on suspension, and Amendments 336, 338 and 339 bring the procedure for suspending licences into that for refusal by making it clear that the existence of grounds for suspension is a matter of a licensing authority's judgment.
The third group of amendments, Amendments 316, 324 and 327 relate to decisions on licences. For example, Amendment 327 removes the chief constable and fire authority's power of veto over the granting of a temporary licence and Amendments 316 and 324 delete the power of Secretary of State to make by statutory instrument model licence conditions to be taken into account by licensing authorities. These latter amendments will no doubt be warmly welcomed by the noble Lord, Lord Ross, who argued strongly that the then provisions were clumsy and unnecessarily formal.

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The fourth group makes extensive amendment to the procedures to be followed by licensing authorities after taking any of the decisions which they take under Schedule 1. It is made clear on the face of the Bill by Amendments 321, 333, 334, 345 and 348 that the licensing authority must notify its decision in writing to interested parties within seven days.
Paragraph 16B, as introduced by Amendment 351, draws together and clarifies provisions in respect of giving of reasons for decisions, providing that a request for such reasons may be lodged by a relevant interested party within 28 days of the date of the decision and provided within 10 days thereafter by the licensing authority. Previously, reasons had to be requested within 48 hours and provided thereafter within an unspecified period. This revised timetable gives longer for the request of reasons and eliminates any risk of local authority procrastination.
Finally, I should also mention Amendments 322, 328 and 329 which make transfer and validity of licences easier in specified circumstances. As your Lordships may recall, when we considered this Bill in Committee we had a lengthy debate on the advantages and disadvantages of prescribing specifically for transfer of licences, during which the noble Lord, Lord Ross, made it clear that his main concern was with the lack of provision for automatic transfer of a licence in the event of a licence holder's death. I promised to reconsider this point, and the noble Lord may be pleased to see that in Amendment 329 the Government have now provided for the automatic transfer of a licence to an executor for a period of up to three months. Amendments 328, 329 and 322 make the provisions in respect of temporary and joint licences more flexible to avoid undue inconvenience and hardship to licence holders in specified circumstances.
This brief account, of course, provides only an outline of the main effects of the amendments to Schedule 1. Many of them have been introduced in response to helpful Opposition comments and criticisms in both Houses and I believe that none is controversial. They all reflect what I took to be the feelings of the House when we last discussed the schedule. There was a concern that we should aim for a more straightforward and flexible pattern of procedures. The changes have, of course, also been welcomed by the convention.
Moved, That this House doth agree with the Commons in the said amendment—(The Earl of Mansfield).
Lord Ross of Marnock: My Lords, I shall not make any effort to go through the list of amendments. It would have been helpful to have known that the amendments were to be taken in that order. I received something a couple of hours ago as to how amendments were to be taken together, but capable as I am of going through the Bill I do not think two hours is quite sufficient. This particular batch was not included in that advice, and I think that makes matters more difficult.
As to the purpose of the amendments, I think that the noble Earl will Appreciate the horror with which many of his friends in another place read this Bill and this whole matter relating to licensing. They saw being
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built up a monstrosity of bureaucracy. I think that noble Lords on the noble Earl's side of the House had the same fears about it. Although what I believe to be a pretty monstrous provision in the Bill is still there, it is certainly now a little better than it was. I am very glad indeed that the noble Earl, who was prepared to rely on the good sense of licensing authorities in relation to granting time for executors acting for widows and for families, has now seen the light and decided that it is far better actually to have that in the Bill, to relieve people of the strain of worry that the loss of a husband might even mean the loss of a business.
On the whole. I do not think that anyone can object at all to the amendments that have been made. The sad thing is that they were not made quickly enough. I think that many of them should have been made in this House. Having appreciated the good sense of the debates in this House, I hope that the Government and the Government Ministers will assert themselves a little more and not leave to another place what patently should be done.
The Earl of Mansfield: My Lords, I am obliged to the noble Lord for his welcome to this series of amendments to Schedule 1, but as regards the marshalling of amendments and the way in which the House should go about its labours in this respect, I must point out to him that I wrote to him some weeks ago offering to put at his disposal the resources of my department, and I received no reply. If the letter never reached him, of course, it is most unfortunate. Nevertheless, there was no intention—there never is—to spring anything on him by way of surprise.
Lord Ross of Marnock: My Lords, I should like to express my thanks to the noble Earl for his generous offer. I think he said that something would be ready about the 11th of this month—that was last week. But I am not a full-time politician with a whole band of civil servants behind me and I have one or two other responsible duties as well—at least, they are duties that I consider responsible and worth doing. I was merely referring to the grouping of the amendments. That information would have been helpful to anyone who was concerned to see how the matter would be handled in the House. No offer was ever made as regards that. As I say, I received it sometime this morning without even having asked for it. But I shall not quarrel over this kind of thing. I think that the noble Earl is doing very well at the moment.
The Earl of Mansfield: Gracious, gracious!
Lord Ross of Marnock: My Lords, I would not call the noble Earl gracious; I never call him that. Soon after I came here I christened him "the master of the infelicitous phrase". I am afraid that he still is at times. He still has a lot to learn, but we will carry on with the educational process.
On Question, Motion agreed to.
COMMONS AMENDMENT
19 Page 6, line 12, at end insert ("and cognate expressions shall be construed accordingly").
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their amendment. This is consequential.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
20 Clause 9, page 6, line 17, leave out ("43, 45 and").
2l Page 7, line 8, after ("to") insert ("(a)").
22 line 12, at end insert (";
(b) the activity provision for the licensing of which is made in section 44 of this Act (that is to say the use of premises as a place of public entertainment) shall specify the place or places, or class or classes thereof, which shall thereby fall to be licensed").
2 Page 8, line 9, leave out ("in this section").
3.25 p.m.
The Earl of Mansfield: My Lords, with the leave of the House, I shall take Amendments Nos. 20 to 23 en bloc. I beg to move that this House doth agree with the Commons in their amendments. During Committee stage debate in another place Members on both sides expressed their concern that the public entertainment provisions in Clause 44 were drafted so widely that almost any public entertainment activity could be caught, whether or not there was any public safety consideration. The Government accepted that the clause should be reconsidered and perhaps improved and eventually concluded that public entertainment should he an optional provision rather than a mandatory one, and Amendment No. 20 achieves just this.
Because of the diversity of activities which are encompassed under the heading of public entertainments, it is considered that the licensing authority should be specific and identify those places or classes of places of public entertainment to be licensed in any resolution. Amendments Nos. 21 and 22 achieve this. This affords no absolute guarantee that any particular type of public entertainment will escape, but it has proved impossible to provide a definition of those types of entertainment which should be included, or those which should be excluded, which would ensure that those kinds of activities about which concern has been expressed would escape the Bill's requirements; nor is it feasible to compile an exhaustive list. The matter must, therefore, be left to the good sense of local authorities responding to local needs in light of consultation with those most immediately concerned; and of course the requirement that the relevant resolution shall specify the place, rather than the activity, will help to avoid some of the problems which were highlighted in debate. Amendment No. 23 is a drafting amendment to remove surplus verbiage. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
24 Clause 10, page 8, line 19, after ("a") insert ("private").
25 line 22, after ("a") insert ("private").
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26 line 24, after ("or") insert ("private").
27 line 26, after ("or") insert ("private").
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 24 to 27 en bloc. I should also like to speak to Amendments Nos. 32 to 34, 37 to 40, 42 to 44, 47, 51 to 54, 56, 57, 88, 89, 93, 95, 98 to 100, and 108 to 110. We now come to the question of taxis and private hire cars. I see that the noble Lord, Lord Underhill, is in his place. The essence of this group of amendments is contained in the definitions for taxis and private hire cars, which in fact are contained in Amendment No. 110. The other amendments are purely consequential on Amendment No. 110 with its revised definitions.
These definitions are the product of discussions we have had with the Convention of Scottish Local Authorities and the taxi and hire car trades. We aim to achieve the object summarised by the convention: that the definition should make it clear that:
"a taxi can do everything that a hire care can do, and in addition pick up passengers in public places—streets, ranks, stations etc.".
In common parlance, the definition aims to ensure that the taxi can "ply for hire" and can be flagged down without prior arrangement in a street or other public place. Because of that its fares are controlled. By contrast the private hire car can be made available for personal conveyance with a view to profit at a freely negotiated price but cannot, like a taxi, be engaged by arrangements made in a public place between the potential passenger and its driver.
In the proposed new Clause 22 defined in Amendment No. 110, subsection (2) introduces a general class of "hire car" and defines it as a motor vehicle with a driver other than a public service vehicle which is "with a view to profit" available for hire by personal conveyance. Subsection (1) first defines the taxi as being a special case of that "hire car" if it satisfies two further conditions: it must be engaged by arrangements made in a public place with the driver, and the journey for which it is engaged must begin "there and then"; in other words, there is no advance booking. Any other kind of "hire car" is reclassified as a "private hire car", and the purpose of Amendments Nos. 24 to 108 is to change the references to "hire car" in the Bill to "private hire car".
In subsection (2) the general class of "hire car" to which both the taxi and the new style "private hire car" will belong is defined as a vehicle other than a public service vehicle which is let with its driver with a view to profit for hire by personal conveyance. The reference to "a view to profit" is necessary so as not to inadvertently catch a number of voluntary transport arrangements for disabled people where a small charge is made but which are run basically as a charitable activity. In subsection (3) the intention is to make it clear that once a vehicle is operated as a taxi then it will continue to be treated as a taxi for all the time that it is meeting the criterion in subsection (2). In other words, a taxi summoned by a radio booking through a central control point will still be subject to taxi regulation.
Amendments 52 and 54 arise from convention suggestions that the holder of a taxi driver's licence need not apply for a separate private hire car driver's licence should he wish to drive a private hire car. This

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is sensible as a taxi can do all that a private hire car can do and a licensed taxi driver should be able to drive a licensed private hire car without having to seek a separate licence to do so. It will also reduce the administrative burden on the licensing authority.
Amendment 109 closes a loophole in the exemption for vehicles which are used under contract for 24 hours or more. If a vehicle had a standing contract for a certain hire each day it could under the Bill as it left this House have been exempted for the whole span covered by the contract even though the hire lasted for a short time only each day and the vehicle was free to undertake other hirings. This amendment, by applying the exemption to exclusive use during 24 hour plus contractors, ensures that this loophole is closed.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.).
Lord Ross of Marnock: My Lords, we are grateful to the Minister for his explanation and to the Government for their actions in this respect. The only thing I would suggest is that this Bill started out somewhere about 10 years ago. Then a few years ago we had a model Bill. Then we had the actual Bill which left this place in March. It is a pity there had not been a little more consultation with the people concerned, the local authorities, and with the Federation of Taxi Owners and the hire car organisations, although I gather that they more or less come into being with the Bill. They suddenly realised how important it was that their voice should be heard, so I cannot blame the Government for not consulting them.
However, it means that we have such a mix-up that it is almost impossible to relate the old Bill to the new Bill. While the improvements are certainly there it would have been fairer on Members of this House if a little more consideration and consultation had taken place, and it would have probably cut down some of the debates that we had at that time. There are other important matters to come in relation to the actual regulations and in relation to the taxis and also signs on the vehicles, but we are grateful for the changes that have been made. It has certainly simplified and clarified the definition and lessened the possibility of confusion between hire cars and taxis which go around with a sign "For Hire" on top of them and yet they are not for hire at all in the same sense. Both the language as we have it now and the explanation by the Minister are a considerable improvement.
Lord Drumalbyn: My Lords, may I ask a small practical question? If a taxi is hired by telephone that is not in a public place—and it can easily be hired by telephone, and noble Lords must have done it themselves from time to time—does it become a hired car?
The Earl of Mansfield: My Lords, before rising to my feet. I was waiting for any other noble Lord who might like to congratulate the Government, but if there are no other takers may I say that my understanding is that, so far as licensing is concerned, which is what we are talking about, a booking in the way that my noble friend suggests does not alter the way in which the taxi remains to be treated as a taxi.
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In other words, a taxi summoned either by telephone, or by telephone from a central office and then directed by radio, remains subject to taxi regulations throughout.
Lord Ross of Marnock: My Lords, of course the really important matter is that the fare is controlled.
The Earl of Mansfield: Quite.
Lord Ross of Marnock: And fixed by the local authority.
Lord Davies of Leek: My Lords, may I as a mere Welshman ask a Scotsman a question that is of paramount importance to people who hire? We have had this problem in many legal cases. Are people covered and insured in any different way in the private car for hire compared with the taxi? We know that the London taxi is covered and any accidents are covered, but what is the case in Scotland? Has it a weird law of its own, or does it not bother?
The Earl of Mansfield: My Lords, with the leave of the House—I am not sure that it really ought to be given, and I am anxious that this should not become a Committee stage—I assume that the noble Lord, Lord Davies, is referring to insurance and the third party cover which the operator, for want of a better expression, of a taxi or hire car has to take out. That is regulated, or can be regulated, by the licensing which operates in a particular licensing area. So far as the state is concerned, the owner or operator of a taxi has to conform to the Road Traffic Acts in the same way as anybody else. So far as the licensing authority is concerned it would be up to them to impose any further obligations as they see fit as a condition of the licence.
Lord Davies of Leek: My Lords, I hope that the noble Earl will not think that I raised that in any unkind manner, but it is a problem even in English law and it is a problem for many laymen who have a major accident in a different kind of vehicle from a taxi, and I think that somehow or other the position should be made clear.
On Question, Motion agreed to.
COMMONS AMENDMENTS
28 Page 8, line 26, after ("be") insert ("and is safe for that use").
29 line 27, after ("vehicle") insert ("such").
30 line 28, at end insert—
("(2A) Without prejudice to paragraph 5 of Schedule Ito this Act, a licensing authority shall refuse an application to grant a taxi licence if, in their opinion, granting it would have an adverse effect on the general availability to the public in their area of the services of taxis or the cost of providing these services").
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 28 to 30. I should also like to speak to Amendments Nos. 55 and 58 to 60. Amendment No. 28 makes specific that before granting a licence the licensing authority must be satisfied that the vehicle is not only suitable as to design but also safe at the time. If the noble Lord, Lord Davies of Leek, would look at Clause 10(2) of the Bill he will also see

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the provision there as to the duty of a local authority not to issue a licence unless they are satisfied that the Road Traffic Acts have been complied with so far as insurance is concerned.
Amendment No. 29 is a drafting amendment to make it clear that as intended the policy of insurance which must be in force for a taxi or private hire car is one which complies with Part VI of the Road Traffic Act 1972. Amendment 30 empowers the licensing authority to limit the number of taxi licences. There has been considerable debate both here and in another place on the question of whether local authorities should have a power to limit the number of taxi licences. Noble Lords will recall our earlier debates in which the noble Lords, Lord Ross and Lord Underhill, played significant parts. I hope that both of them will welcome this particular amendment. The argument concerned factors unique to the taxi trade, for instance that their fares were controlled by a local authority and that existing operators under the present system of limitation who had bought their way in could suffer a capital loss if such limitation were removed.
The trade have argued that absence of limitation powers could mean a reduction in the availability of services on a seven day week, 24 hours a day basis throughout the licensing authority's area, because full-time operators would he driven out of business and the remaining part-timers would concentrate on city centres at weekends, where the demand is highest, and that this could mean a reduction in the availability of services in the peripheral areas and at unsocial hours. Without being persuaded that that would inevitably be the effect, this amendment will allow a local authority to refuse a licence if it thought that it would indeed produce such adverse effects on availability.
The amendment also refers to costs of providing the service, so that the authority will be able to take account of whether granting a licence would result in a decrease in the profitability of individual taxi operators who would then feel forced to press for higher cost. I doubt whether this is really likely—it seems perverse for more competition to put up cost and prices—but this amendment meets the trade's point and will allow the local authority to take account of such factors if they exist. The amendments have been agreed with the Convention of Scottish Local Authorities and the taxi trade and were welcomed when they were tabled on Report in another place. Amendment No. 55 removes a provision which the Committee in another place thought to be redundant on drafting grounds, though I should emphasise that the policy is unchanged.
Amendment No. 58 arises from representations made by the Convention of Scottish Local Authorities that the reference to "fails such a test" is too precise a term which leaves discretion to the licensing authority. Amendment No. 58 therefore provides that a licencing authority may refuse a licence if they are not satisfied that an applicant has "adequate knowledge". Under Amendment No. 59, if a taxi or hire car driver's ordinary driver's licence was withdrawn or suspended under the Road Traffic Act 1972, the licensing authority may not know immediately that this has occurred and it may take time for them to revoke the licence. Amendment No. 59 was suggested by the convention and therefore provides that if a driver has his driving
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licence taken away, then the taxi or hire car driver's licence automatically ceases to have effect.
Amendment No. 60 removes a redundant provision and is similar in concept to Amendment No. 55.
Lord Underhill: My Lords, I am unstinting in my gratitude to the Minister for these amendments. In fact, listening to him, I could almost hear the kind of speeches which my noble friend Lord Ross and I made in this House. Much as I appreciate the common sense one usually gets from your Lordships, on this occasion I am grateful that the other place decided to make this amendment and I am pleased the Government decided to accept it, particularly as this change is wanted by the convention and the taxi trade.
Lord Mackie of Benshie: My Lords, I regret Amendment No. 30 because the matter could have been left to competition. I cannot see that a person can start up a business and destroy a good taxi service; he starts up only if there is a need. I shall not oppose it, but I regret that the Government have given way on the matter.
Lord Ross of Marnock: My Lords, I am glad the Government have taken the action they have. The Minister will remember that we pointed out that this point was made in a report over 10 years ago. It was surprising to me that the Government rejected the advice given to them by that working party. Nevertheless, I am glad they have come round to this form of wording because I do not agree with the noble Lord, Lord Mackie, that it is competition in the accepted sense. It is often unfair competition. Part-timers will not give a service except at times when they think it proper to provide that service, and all they are doing at those times is reducing the facilities available by knocking out those whose whole livelihood is earned by providing a service to the public at all times. It results in a very patchy service because if you knock out a full-time man, the part-timer will not be there, say, in the morning or in the afternoon when there is not a lot of business about, so from the point of view of service to the public, which should be paramount, the Government have come eventually to the right decision, and I am grateful to them for that.
As for Amendment No. 58, it is proposed to remove the word "fails such a test" and insert words to the effect that the local authority or licensing authority are not satisfied that they have sufficient knowledge. The provision says:
"A licensing authority may require an applicant for a taxi driver's licence to take a test".
Surely everyone understands what happens if he fails the test. Why the four words "fails such a test" should be wiped out and be replaced by a whole new phrase saying that the local authority is not satisfied with the knowledge I am at a loss to understand. I can only think that the Government suddenly gave way to their supporters in Committee when they agreed to the change, It may not make a great deal of difference, but it does not seem to make sense to say that when you order someone to take a test you dare not say that they have failed the test.
The Earl of Mansfield: My Lords, the intervention of the noble Lord, Lord Mackie, shows the dichotomy which exists between those who believe in unfettered free enterprise and those who for one purpose or another, seek, as in this instance, to fetter it. I think any student of Hansard would know what the Government's original thinking was on this and how it has changed in the interim. Probably the clue lies in the fact that attitudes in the urban central belt of Scotland are rather different from those in that part of Scotland from where the noble Lord and I come, one at each end of what I call the raspberry belt, where rather different considerations and standards apply, and I would remind the noble Lord that there will be no necessity for either of our two local district councils to impose licensing at all on taxis if they do not want to.
As for the remarks of the noble Lord, Lord Ross, concerning Amendment No. 58, as I said, sometimes the Government can be criticised for trying to be over-precise and sometimes they can be criticised for making the wording of a statute imprecise. This matter was strongly pressed on us by the convention. Personally, I rather lean to the Ross outlook on this, but nevertheless the convention made its point felt as a matter of primary concern to them. We felt we should try to meet them over it and that is what we have done.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENT
31 Page 8, line 32, at end insert ("in respect of their area").
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 31. I shall, with permission, speak at the same time to Amendments Nos. 90 and 91. Amendments Nos. 31 and 90 arise from representations by the convention that Clauses 10 and 19 did not give the Secretary of State sufficient discretion to specify different types of vehicles for different areas. There was a danger that he could not differentiate between the needs of the city centres and those of the rest of the country, which may have quite different requirements. For example, it may be held that the so-called metropolitan cab is suitable for the major city centres, and it would not make sense to oblige the local authority to accept as suitable a type of vehicle which may be entirely suitable in more dispersed and rural areas, but not in a city centre.
Amendment No. 91 arises from a convention comment that, while the Secretary of State's orders on conditions under Clause 19(1) should of course be subject to some form of parliamentary procedure, because they may in effect either substantially restrict the discretion of the local authorities or create criminal offences, the same considerations do not apply to orders on vehicle types which would merely provide that a vehicle of the specified type would have to be regarded by the local authority as acceptable in type, though it would still be able to refuse a licence if the vehicle was unsafe. The local authority however would still be free to grant a licence to other types of vehicle if it wished. However, the pace of change of vehicle design is such that it makes sense to have speedy
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changes in the regulations if necessary without them being subject to negative resolution procedure.
I should emphasise that this order-making power has been strongly pressed on us by the taxi trade, which believes that there is a case for some safeguard to ensure that local authorities do not impose—though often for the best motives—unreasonably high standards of vehicle design on the trade, with consequent high costs both to the trade and subsequently to the public. The power is a reserve power and I hope that it will not be necessary in that we can work out reasonable guidelines in joint discussions with the convention and the trade.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
32 Page 8, line 33, after ("or") insert ("private").
33 line 23, after ("or") insert ("private").
34 line 42, alter ("or") insert ("private").
3.52 p.m.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 32, 33 and 34 en bloc. These are consequential.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
35 Page 8, line 43, leave out from ("shall") to ("within") in line 44.
36 Page 9, line 2, after ("relates") insert ("deliver to the licensing authority his licence and any licence plate or other thing which has been issued by the licensing authority for the purpose of indicating that the vehicle is a taxi or, as the case may be, private hire car").
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 35 and 36 en bloc. These amendments implement suggestions by the convention, which has pointed out that licence "plates" are not normally attached to hire cars. The "plates" are the normal type of identification for taxis, and it is likely that the licensing conditions for hire cars will require identification by means of a disc, as is presently practised in some areas. The amendments therefore provide that not only a licence plate, but any other means of identification issued by the licensing authority must be returned to it within 28 days of the selling or disposing of a vehicle.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
37 Clause 11, page 9, line 5, after ("or") insert ("private").
38 line 6, after first ("or") insert ("private").
39 line 10, after first ("or") insert ("private").
40 line 13, after ("or") insert ("private").
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 37 to 40 en bloc. These are consequential, and I have already spoken to them.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENT
41 Page 9, line 14, leave out ("affixed to a taxi").
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 41, and, with leave, I should like to speak also to Amendment No. 102. Nothing in the Bill prohibits private hire cars from being fitted with taximeters, as these can be a useful aid to the private hire car trade. The amendments ensure however that, in circumstances where a taximeter is so fitted, the public are adequately protected. Amendment No. 41 amends Clause 11 to provide for the inspection of taximeters not only on taxis, but also where they may have been fitted on private hire cars. Amendment No. 102 provides that, if a private hire vehicle equipped with a taximeter undertook hirings, then the fare scales laid down by the district council for taxis would apply to the extent that the hire car could not charge higher fares without committing an offence. There is of course nothing to stop the hire car charging lower fares than those in the district council's fare scales. But the amendment removes an incentive for hire cars to pass themselves off as taxis, with meters, and then exploit the public by charging higher fares.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
42 Page 9, line 15, after ("or") insert ("private").
43 line 18, after ("or") insert ("private").
44 line 19, after first ("taxi") insert ("private").
The Earl of Mansfield: My Lords I beg to move that this House doth agree with the Commons in their Amendments Nos. 42 to 44 en bloc. These are consequential.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENT
45 Page 9, line 26, leave out ("two months") and insert ("28 days").
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 45. The amendment reduces from two months to 28 days the period after which a vehicle licence is deemed to be suspended if a vehicle is put off the road by a constable or authorised officer for reasons of safety or accuracy of taximeter and he has not been satisfied within that time that the defect has been rectified. This deemed suspension is to allow the licenceholder the right of appeal.
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The two-month period was suggested by the trade as a maximum reasonable period to allow for the making good of major accident damage and possible delays in obtaining spares. The trade was previously concerned that a shorter period might result in automatic suspension under the provisions of paragraph 12 of the schedule, which could be lifted only on appeal to the sheriff. That might be unnecessarily cumbersome in the case of delays attributable only to delays in the arrival of the necessary spare parts. However, the schedule now provides—under Amendment No. 340—for a licensing authority to lift a suspension at any time. In view of that, a two-month period is no longer necessary, and the rights of the individual are probably better protected by the shorter period of 28 days. I understand that the taxi trade is content with the amendment.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENT
46 Clause 12, page 9, line 32, leave out ("of applications for and grants").
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 46, and I should like to speak also to Amendments Nos. 48 to 50. Amendments Nos. 46 and 48 are drafting amendments which do not change the sense but make the clause more immediately understandable. Amendment No. 49 deletes the word "reasonably" from the phrase "reasonably sufficient", and thus brings the clause into line with paragraph 16 of the schedule, which now provides for fees being "sufficient". That was amended in the light of comments by the noble Lord, Lord Ross.
Amendment No. 50 has the effect of excluding the costs of taxi stances (provided under Clause 18) from the administrative and other costs to be financed from licence fees. It is felt that the provision of taxi stances is a useful traffic management measure which should be financed by the public at large, rather than by the taxi trade and travelling public through the licence fees and fares.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
Lord Ross of Marnock: My Lords, I think that what the Minister has said is right in regard to the first two amendments, but I do not think that it is equally true about the final amendment in the group, Amendment No. 50. What is meant is not readily understandable, whereas what was already stated in Clause 12(a) and (b) was absolutely clear as to meaning. The Minister could have met the point about the actual taxi stances without going into the obscurity of legislating by reference. If in the first two amendments of the group he has sought to make things simpler, as I agree he has—and with a certain measure of success—he has certainly not done so in Amendment No. 50. But I am not going to quibble about it.
On Question, Motion agreed to.
COMMONS AMENDMENTS
47 Page 9, line 32, after second ("and") insert ("private").
48 after ("licences") insert ("and applications for such licences").
49 line 34, leave out ("reasonably").
50 leave out lines 36 to 42 and insert ("the expenses incurred by them in carrying out their functions under sections 10 to 22 (other than section 18) of this Act in relation to such licences.").
51 Clause 13, page 10, line 2, after ("a") insert ("private").
52 after ("shall") insert (", subject to subsection (1A) below").
53 line 3, after second ("or") insert ("private").
54 line 4, leave out ("for hire or reward") and insert
("(1A) A private hire car driver's licence shall not be required by the holder of a taxi driver's licence for driving or otherwise having charge of a private hire car whilst in operation as such.").
55 line 12, leave out subsection (3).
56 line 19, after ("be") insert ("private").
57 line 20, after ("or") insert ("private").
58 line 28, leave out ("fails such a test") and insert ("does not satisfy them that he has adequate knowledge of any of these matters.").
59 at end insert—
("(5A) If a person holding a licence under this section ceases for any reason to be authorised by law to drive on a road (within the meaning of the Road Traffic Act 1972) the vehicle to which the licence relates, the licence shall cease to have effect.").
60 line 29, leave out subsection (6).
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 47 to 60 en bloc.
I have already spoken to these amendments.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
61 Clause 14, page 10, line 39, leave out from ("on") to end of line 40 and insert ("or in a private hire car—").
62 line 41, leave out from beginning to end of line 2 on page 11 and insert ("any word, sign, notice, mark, illumination or other feature which may suggest that the vehicle is available for hire as a taxi.").
63 page 11, line 3, leave out from ("to") to ("or") in line 6 and insert ("any licence plate or other thing issued by the licensing authority for the purpose of indicating that the vehicle to which it relates is a private hire car").
4 p.m.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 61 to 63 en bloc. Clause 14 makes it an offence to display certain signs on a vehicle other than a licensed taxi. This is in order to prevent pirate vehicles, or private hire cars, passing themselves off as legitimate licensed taxis. Amendment 61 extends this offence provision not only to such signs on the vehicles but also to such signs in the vehicle. It also makes it clear that this offence provision applies to private hire cars.
So far as Amendment No. 62 is concerned, during the debate in another place concern was expressed that, as introduced, Clause 14(1)(a), which detailed words which cannot be used, could be too restrictive of legitimate advertising of the names of firms or services. It would also catch hire cars from unlicensed areas
28
legitimately entering a licensing area to deliver a passenger. Amendment 62 therefore deletes subsection (1)(a) of Clause 14, which dealt with specific words, and rests instead on the list of features previously contained in Clause 14 (1)(b), though it adds "word" to those features. It makes the intention clear that the offence is that of suggesting that the vehicle is for hire as a taxi. This amendment therefore will allow legitimate advertising and provides that vehicles merely passing through an area are not committing an offence simply because the name of a hire car firm is shown on them.
Amendment 63 exempts from the offence provisions of this clause not only licence plates but any other means of identification which the licensing authority may require to be displayed on the vehicle. As the intention of this clause to apply to private hire cars is now made clear the redundant exemption for public service vehicles is deleted. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield)
Lord Ross of Marnoek: My Lords, it is interesting to note that the word which was so offensive in the original provision was the word "hire", and, of course, the offending vehicles are private "hire" cars. We can appreciate just how tricky it is to deal with private hire cars and say that they must not in any case use the word "hire" or "hires". Now we have a much more general definition, which I presume could include the word "hire", depending on how it is used and where it is placed. It shows just how tricky the whole thing is, which stems from the rather colloquial definitions of the two types of vehicle that provide a service, the one a taxi which goes round with the word "hire" on it and the other the private hire car, which originally we thought should never call itself or advertise itself as for hire.
The Earl of Mansfield: Yes, my Lords. The essence of the offence is that of suggesting that the vehicle is for hire as a taxi.
On Question, Motion agreed to.
COMMONS AMENDMENTS
64 Clause 15, page 11, line 22, leave out subsection (2) and insert—
("(2) The conditions to which a taxi or taxi driver's licence are subject shall continue to apply while the taxi or its driver is engaged in such a journey.—).
65 After Clause 15, insert the following new clause:—
("Journeys in England and Wales by vehicles and drivers licensed under this Act.
In section 75 of the Local Government (Miscellaneous Provisions) Act 1976 (saving for certain vehicles from requirements of Part II of that Act as to private hire vehicles), after subsection (2) there shall be inserted—
"(2A) Where a vehicle is being used as a taxi or private hire car, paragraphs (a), (b) and (c) of section 46(1) of this Act shall not apply to the use or driving of the vehicle or the employment of a person to drive it if—

(a) a licence issued under section 10 of the Civic Government (Scotland) Act 1982 for its use as a taxi or, as the case may be, private hire car is then in force, and

(b) the driver holds a licence issued under section 13 of that Act for the driving of taxis or, as the case may be, private hire cars.

In this subsection. 'private hire car' and 'taxi' have the same meaning as in sections 10 to 21 of the Civic Government (Scotland) Act 1982.".").
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 64 and 65 en bloc; and I should also like to speak to Amendments Nos. 96. 97 and 306. Amendment 64 corrects a drafting imprecision. Control is exercised by the licensing authority by means of licensing conditions under paragraph 5 of Schedule 1. Amendment 64 therefore replaces the general reference to control by a licensing authority over vehicles going to destinations covered by this clause outwith the licensing area by a specific reference to licensing conditions.
The new clause introduced by Amendment 65 provides that licensed Scottish taxis and hire cars may pick up passengers in England, and arises from difficulties experienced by Scottish taxis picking up passengers in England, particularly at Berwick railway station. At present, this is illegal. The amendment will put licensed Scottish taxis on an equal footing to taxis licensed in England. This new clause amends the appropriate offence provisions of the Local Government (Miscellaneous Provisions) Act 1976, which applies in England and Wales, to provide that taxis and private hire cars licensed in Scotland may pick up passengers in England provided that the request for the hiring—for example, in response to a telephone hooking—was received in the area in which they are licensed.
Amendment 97 amends Clause 20 of the Bill to provide reciprocity for English licensed vehicles which wish to pick up a pre-hooked passenger in Scotland. It is therefore the other side of Amendment 65. Amendment 97—and, indeed, Amendment 96 is a paving amendment for it—also amends Clause 20(2), which provides for the picking up of passengers in another licensed area, to make it clear that the request for such a hiring must be received by the driver either in the area for which he is licensed or while he is travelling from his own licensed area in the course of a hire, or is in the course of immediately returning to his own area on completion of a hire. This ensures that the blatant abuse of deliberately stationing vehicles in another licensed area so as to respond to radio calls sent from their headquarters can be dealt with appropriately. This amendment has been welcomed by the National Federation of Taxi Cab Associations and the convention. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENT
66 Clause 16, page 11, line 34, leave out ("such").
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 66. This is a drafting amendment. The use of the word "such" here is redundant. I beg to move.
Moved, That the House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
67 Page 11, line 35, leave out from ("to") to end of line 38 and insert ("review these scales at intervals not exceeding 18 months from the date on which the scales came into effect (whether proceeding upon a review under this section or not).").
68 line 39, leave out ("or varying").
69 Page 12, line 11, leave out ("or vary")
70 line 13, leave out ("notify") and insert ("give notice in writing or).
71 line 16, at end insert
("(5) Notice shall be given for the purposes of subsection (4) above by—
(a) its being sent by recorded delivery letter to the last known addresses of the persons and organisations referred to in subsection (4) above so as to arrive there, in the normal course of post, not later than five days after the decision referred to in subsection (4) above: or
(b) personal service of the notice upon those persons within that time.")
72 Clause 17, page 12, line 18, leave out ("determined") and insert ("fixed").
73 line 21, leave out ("that decision") and insert ("these scales").
74 line 23, at end insert—
("(1A) The traffic commissioners may hear an appeal under this section notwithstanding that it was not lodged with them within the time mentioned in subsection (1) above.")
75 line 26, leave out ("licensing authority's decision") and insert ("scales").
76 line 35, leave out ("or part therof").
77 line 39, leave out ("appealed against or any part thereof") and insert ("referred to in subsection (1) above").
78 leave out line 40 and insert ("the data when the appeal is abandoned or, as the case may be, when notice is given to the appellant advising him of its dispoal.").
79 line 41, leave out ("a decision of the licensing authority") and insert ("scales").
80 line 43, leave out from ("or) to end of line 44 and insert ("these scales").
81 Page 13, line 5, leave out ("notify") and insert ("give notice of").
82 line 6, at end insert ("and notice shall be given to the appellant by—

(a) its being sent by recorded delivery letter to his last known address or, as the case may be, to them so as to arrive, in the normal course of post, not later than five days after their decision; or

(b) personal service of the notice on the appellant within that time").

83 line 7, leave out ("On") and insert ("As soon as practicable after").
84 line 8, leave out from ("on") to ("disposal") in line 9 and insert ("the date when it is abandoned or when notice is given to the appellant of its").
85 line 17, leave out ("against the authority's decision.").
86 line 20, leave out ("inserted") to ("the") in line 21 and insert ("at the end").
87 line 22, after ("fares") insert ("48").
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 67 to 87 en bloc. Amendments Nos. 67 to 72, 73, 75 to 80 and 85 are designed to emphasise the need, as pointed out by the convention, to treat the licensing authority's decision on fares in Clauses 16 and 17 as a decision on the scales of fares as a whole. For example, it would clearly be a

31
nonsense to consider part of the mileage tariff on appeal in isolation from the other mileage, or, say, the waiting charges. An appeal against one part of a scale is therefore to be treated as an appeal against the scales as a whole. The amendments achieve this by substituting references to "scales" for references to the local authority's "decision", and by removing drafting implications that the scales could be regarded as a series of separate decisions.
Amendments Nos. 70. 71, 78, 81, 82, 83 and 84 provide that the notifications given in Clauses 16 and 17 be in writing, and set out the procedure for such notification. This written notification procedure has been suggested by the Council on Tribunals. Amendment No. 74 gives the Traffic Commissioners discretion to hear appeals on taxi fares even if they have been lodged after the 14-day appeal period. This was suggested to us by the Council on Tribunals. Amendments 86 and 87 are drafting amendments, suggested by the council, to ensure precision of reference to the Traffic Commissioners in the Tribunals and Inquiries Act 1971. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
Lord Ross of Warnock: My Lords, I think these are worthwhile amendments. They are drafting, clarifying in one case, but providing a measure of relaxation in the consideration of the timing of appeals. This we already provide for within the Bill in respect of other licences, and there is no reason why it should not be provided for in the case of this particular one. There is only one thing that I regret, and that is that an opportunity was missed in the tidying up. To take Amendment No. 67, we continue with the words,
"(whether proceeding upon a review under this section or not)".
I do not think these words mean anything at all. They certainly do not add anything to the sense of subsection (2): and, indeed, since they are unnecessary they will tend to confuse the person who reads them. It is too late now to do anything about it, but I regret that the department did not notice this and get rid of these words when they were clearing up other things.
On Question, Motion agreed to.
COMMONS AMENDMENTS
88 Clause 19, page 14, line 16, after first ("taxi,") insert ("private").
89 line 17, after first ("or") insert ("private").
90 line 23, at end insert ("and, in doing so, may prescribe different types, sizes or designs of vehicles in respect of different areas.").
91 line 24, leave out ("or (2)").
4.10 p.m.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 88 to 91 en bloc. These are consequential.
Moved, That this House doth agree with the Commons in the said amendments. (The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENT
92 Clause 20, page 14, line 32, leave out ("subject to subsection (2) below").
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 92. This is purely a drafting amendment and deletes redundant verbiage.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
93 Page 14, line 33, agter ("a") insert ("private").
94 line 38, leave out ("200") and insert ("500").
95 line 40, after ("or")insert ("private").
96 line 42, after ("received") insert ("by its driver whilst—")
97 line 43, at end insert
("(b) engaged on hire on a journey which began in that area or part or will end there: or
(c) is returning to that area or part immediately following completion of a journey on hire.
(2A) Subjection (1)(h) above does not apply to the operation of a vehicle within an area in respect of which its operation or its driver is not licensed if there are in force—

(i) in respect of the vehicle, a licence under section 37 of the Town Police Clauses Act 1847 (licensing of hackney carriages) or section 48 of the Local Government (Miscellaneous Provisions) Act 1976 (licensing of private hire vehicles): and

(ii) in respect of its driver, a licence under section 46 of the said Act of 1847 (licensing of hackney carriage drivers) or, as the case may be, section 51 of the said Act of 1976 (licensing of drivers of private hire vehicles).").

98 Page 15, line 1, after ("or") insert ("private").
99 line 3, after ("or") insert ("private").
100 line 5, after ("a") insert ("private").
101 line 6, leave out ("200") and insert ("500").
102 line 8, after ("taxi") insert ("or for the hire of a private hire car which is fitted with a taximeter").
103 line 10, leave out ("200") and insert ("500").
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 93 to 103 en bloc. These are consequential.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
104 Page 15, line 12, leave out ("(a)").
105 line 13, leave out line 13 and insert ("operates or drives a taxi or private hire car knowing that the seal on its meter has been broken.").
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 104 and 105 en bloc. Perhaps I may speak also to Amendment No. 107. Amendment No. 104 is a paving amendment for No. 105. Amendment No. 105 introduces a new offence of operating or driving a taxi while knowing that the seal on its meter has been broken or that the meter is registering incorrectly. This is because the seal on the meter is to ensure that the meter has not been tampered with. In addition Amendent No. 105 deletes

33
the offence of altering a taximeter to make it read incorrectly.
During consideration in another place of this subsection, disquiet arose over the precise meaning of "incorrectly". On consideration, it did not prove possible to produce a satisfactory definition of "incorrect" which did not appear to risk confusion between calibration, on the one hand, and the approved fare scales on the other. The purpose of the references to a meter registering incorrectly was to prevent fraud, a matter already covered by common law. In view of the difficulties surrounding the reference to a meter registering incorrectly, Amendment No. 105 deletes the reference to the offence of the meter registering incorrectly. The offence therefore will rest on the common law of fraud.
Amendment No. 107 deletes Clause 20(8). This subsection provided a defence for drivers of public service vehicles from the offence in Clause 20(6) of causing or permitting without reasonable excuse a vehicle other than a taxi to wait on a taxi stance. The defence would be to show that it was only by reason of obstruction to traffic or other compelling reason, or only so long as was reasonably necessary for taking up or setting down passengers. These defences are however already covered by the "reasonable excuse" defence in Clause 20(6) and subsection (8) is therefore redundant.
Amendment No. 107 also deletes Clause 20(9) which provided that, for the purposes of proceedings under this Act, any vehicle with a taximeter is presumed to be a taxi unless the contrary is proved.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
106 Page 15, line 15, leave out ("200") and insert ("500").
107 line 28, leave out subsections (8) and (9).
108 Clause 21, page 16, line 1, after second ("a") insert ("private").
109 line 8, leave out from ("passengers") to ("for") in line 9 and insert ("under a contract for its exclusive hire").
110 Clause 22, leave out Clause 22 and insert the following new clause:
("Interpretation of sections 10 to 21.
.—(1) In sections 10 to 21 of this Act—
"taxi" means a hire car which is engaged, by arrangements made in a public place between the person to be conveyed in it (or a person acting on his behalf) and its driver for a journey beginning there and them and
"private hire car" means a hire car other than a taxi within the meaning of this subsection.
(2) In subsection (1) above, "hire car" means a motor vehicle with a driver (other than a vehicle being a public service vehicle within the meaning of section 1(1)(a) of the Public Passenger Vehicles Act 1981) which is, with a view to profit, available for hire by the public for personal conveyance.
(3) Notwithstanding that a vehicle in respect of which there is a licence for its operation as a taxi is, on any occasion, engaged as a hire car otherwise than in the manner referred to in subsection (1) above, the enactments relating to its operation as a taxi, and to the driving of it as such (including any such enactments in this Act) shall nonetheless apply in relation to it; and that other manner of engagement on that occasion shall not of itself cause the operation or driving of the licensed taxi to be regarded, for the purposes of this Act as the operation or driving of a private hire car within the meaning of subsection (1) above.").
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 106 to 110 en bloc. These are consequential.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
111 Page 16, line 26, at beginning insert ("Subject to subsection (2A) below,").
112 leave out lines 32 and 33 and insert
("(2A) A second-hand dealer's licence shall not be required for carrying on—
(a) the business of a pawnbroker (that is to say, a person who, under a regulated agreement under the Consumer Credit Act 1974, takes an article in pawn);").
113 line 34, leave out ("person carrying on").
114 line 34, leave out from ("dealer") to end of line 35 and insert ("purchasing exclusively").
115 line 37, leave out from ("Act") to end of line 39.
116 line 40, leave out ("person whose business") and insert ("business which").
117 line 42, leave out ("person whose").
118 line 43, leave out ("is incidental") and insert ("incidentally").
119 line 43, leave out ("of his").
120 line 44, leave out ("therein") and insert ("in such goods or articles").
121 Page 17, line 1, leave out ("person engaged in the").
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 111 to 121 en bloc. As it presently stands. Clause 23 does not make it clear that a pawnbroker who also acts as a second-hand dealer requires a second-hand dealer's licence. The effect of the series of amendments is to identify the activities which are exempt from the second-hand dealing provisions rather than as at present the persons engaged in the activities, thereby improving the wording of the provisions.
Amendment No. 111 is the paving amendment for Amendments Nos. 112, 113, 116, 117 and 121 which identify the businesses exempt from the second-hand dealing requirements. Amendments Nos. 114 and 115 widen the definition of wholesale dealer. The clause as drafted was based on the present Burgh Police (Scotland) Act but, since goods purchased from another dealer will already have been subject to the retention provisions of the Bill in the hands of that dealer, the police will already have had an opportunity for inspection and, where appropriate, retrieval. The intention behind the amendments is to avoid a further unnecessary retention in the hands of the wholesaler.
Amendment No. 118 improves the drafting of subsection (2)(d) which was criticised at Committee stage in another place and Amendment No. 119 is consequential. These amendments meet the Government's undertaking to reconsider the drafting of Clause 23(2). Amendment No. 120 is a drafting amendment aimed at removing a possible ambiguity.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
122 Page 17, leave out lines 7 to 25 and insert—
("(3) Without prejudice to paragraph 5 of Schedule 1 to this Act, a licensing authority may, after consultation with the chief constable, attach conditions to a second-hand dealer's licence requiring the keeping of records in relation to the dealer's stock-in-trade: and conditions so attached may, without prejudice to the authority's power under this subsection, include provision as to—

(a) the information to he included in these records;

(b) their form:

(c) the premises where they are to be kept: and

(d) the period for which they are to be kept;

(4) A second-hand dealer acquiring a second-hand motor vehicle for the purpose of its re-sale in the course of his business shall keep a record of the mileage reading on the vehicle's odometer when he acquired it.
(5) Any person who contravenes subsection (4) above shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding £200.
(6) It shall be a defence for a person charged with an offence under subsection (5) above to prove that he used all due diligence to prevent the commission of the offence.")
123 Leave out Clause 24.
4.18 p.m.
The Earl of Mansfield: My Lords, I beg to move that the House doth agree with the Commons in their Amendments Nos. 122 and 123 en bloc. The licensing provisions relating to second-hand dealing have been much criticised and during the Commons' Committee stage the Government undertook to ease the position, so as not to impose any unnecessarily onerous obligations on the trade. Consequently, the Government have accepted that second-hand dealing should be an optional provision so that licensing will be imposed only where there is a perceived need and after consultation with those principally concerned on a local basis.
In the light of debate during Committee in another place it was agreed that the record-keeping requirements in Clause 24 were more appropriate to Clause 23 and the first paragraph of Amendment No. 122 achieves this. The Government also accepted that the provisions restricting pawnbroking in subsections (3) to (5) of Clause 23 were unnecessary in modern legislation, and consequently these provisions are deleted by the amendment. In their place have been included provisions requiring dealers in second-hand motor vehicles to record the mileage when they acquire vehicles. This met with general support in Commons Committee and is uncontentious. Having deleted the record-keeping requirements from Clause 24, the clause can be deleted and Amendment No. 123 does this.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
Lord Ross of Marnock: My Lords, I am grateful for the changes that have been made here. It is a complete departure from what we had in the original Act. We had no reference to second-hand motor dealers specifically in the Bill as it first came to us. After reading the debates in respect of this, both in Committee and on Report, and appreciating what I did not realise—that about 3 million second-hand cars a year are sold as against a figure for new cars of only 300,000—the importance of this and the importance of dealing with all the tricks that somehow or other can
36
be got at by records and by insisting that certain things be done is very important. I think that this has been far better covered in Clause 23, as it has been rejigged and expanded, than it was when we first saw it. I certainly approve of what the Government have done.
On Question, Motion agreed to.
COMMONS AMENDMENTS
124 Leave out Clause 26.
125 Leave out Clause 27.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 124 and 125. I should also like to speak to Amendments Nos. 153 and 154.
Amendment No. 124 removes Clause 26 which deals with obligations placed on a dealer who has reason to believe that any item of his stock in trade had before he acquired it been stolen or unlawfully obtained. Amendment No. 153 removes an identical clause relating to metal dealers. Amendment No. 125 removes Clause 27 dealing with stolen goods held by a second hand dealer. Amendment No. 154 removes an identical clause relating to stolen metal. It is accepted that the provisions in all four clauses are adequately covered by common law and consequently the clauses are unnecessary.
There were extensive debates in the other place and these clauses were subject to criticism. These criticisms in the main were accepted by the Government and the clauses therefore have been deleted.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
Lord Ross of Marnock: My Lords, if the noble Earl recalls, these clauses were subject to criticism in this House as well. Clauses like that were quite impossible and certainly very unfair. I am very glad that the Government have changed their minds and are prepared to rely, as they should have in the first instance, on common law.
On Question, Motion agreed to.
COMMONS AMENDMENT
126 Clause 29, page 19, line 39, leave out ("a certified extract of such conviction") and insert ("an extract of such conviction and sentence (if any)").
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 126. This is a consequential amendment.
Moved, That this House doth agree with the. Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENT
127 Page 20, line 14, leave out ("(1) or").
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 127. I shall also speak to Amendment No. 156. These amendments make it clear that the offence provision of failing to comply

37
with a court order relates only to an order made under Clauses 29 or 38 for the retention of goods or metal respectively and not to breach of an order under 5.7(8) which would be separately dealt with under other provisions of the Bill.
Moved, That this House doth agree with the Commons in the said amendment—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENT
128 Page 20, line 16, leave out ("200") and insert ("500").
The noble Earl said: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 128. This is a consequential amendment.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
129 Clause 30, page 20, line 19, at beginning insert ("Subject to subsection (1A) below.").
130 line 20, at end insert—
("(1A) A metal dealer's licence shall not be required by a person in relation to whom there is in force a warrant under section (metal dealers' exemption warrants) (1) or (4) of this Act (referred to in subsection (1B) below and in sections 31 to 40 of this Act respectively as "an exemption warrant" and "a temporary exemption warrant").
(1B) Sections 31 to 39 of this Act shall not apply to a person in relation to whom an exemption warrant or temporary exemption warrant is in force.").
4.25 p.m.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 129 and 130 en bloc. I shall also speak to Amendment No. 132.
Amendments Nos. 129 and 130 are paving amendments for the new clause introduced by Amendment No. 132, and give effect to undertakings given by the Government at the Commons Second Reading to ensure that the mandatory licensing of metal dealers should be confined to those dealers with an annual turnover of not more than £100,000.
The main reason for requiring mandatory licensing of metal dealers is for crime prevention purposes. However, the police and the trade are content that their ineterests will be sufficiently served if licensing controls are confined to those dealers a significant proportion of whose supplies are drawn from the man in the street. For the larger dealer, whose purchases are made from industrial or trade sources, the licensing provisions would serve little or no purpose either because the source of supply is such as to make very unlikely the inclusion of stolen goods or because, by the time the metal reaches the larger dealer, it has already been processed in any one or more of a variety of ways and individual items are no longer identifiable. The simplest and neatest way to distinguish the larger concern is by reference to annual turnover and the new clause is framed accordingly.
Amendments Nos. 129 and 130 ensure that someone in the trade of scrap metal has either a licence to operate if his annual turnover is less than £100,000
38
or else an exemption warrant or temporary exemption warrant if his turnover exceeds 100,000. It is further provided that the provisions relating to metal dealers will not apply to the holder of an exemption warrant.
As mentioned above, the main reason for the mandatory licensing of metal dealers is for crime prevention purposes. In the light of comments received from the trade, the Government have accepted that the kind of criminal activity we are seeking to guard against is unlikely to arise in the case of the garage operator whose supplies are drawn wholly or mainly from other dealers or large industrial concerns.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
Lord Ross of Marnock: My Lords, this is one of the most important amendments in the Bill. I hope that the Government and the Scottish Office will have learned the lesson that when they come to consider licensing they should look at the practicalities and realities behind it, and that all scrap dealers are not people who just go about the streets buying up this and buying up that.
If the Government had had the slightest consultation they would have realised that scrap metal is big business and it is big export business. To seek to regulate them by licence and to forbid them to do anything about their stocks over a period of a weekend or even longer than a weekend really was to strangle a business.
Indications were given by the Minister that a promise was given at Second Reading in another place. But it was raised in this House on Second Reading, at Committee stage, Report stage and throughout. I think that the Government should have been much more readily willing to do something about it. I can assure the noble Earl that it caused considerable dismay with businessmen in the West of Scotland who raised the matter with me and others. It even terrified some English businessmen who thought, "Well, if they are going to do this in Scotland now, they are going to do it in England next".
The Government have seen fit to make the change. I think the figure of £100,000 as the annual turnover is probably fair enough and, so far as I can gather, it has been accepted by the trade. So, congratulations to the Government but regrets that they could not see the importance of this amendment. I am sure that if the noble Lord, Lord Lyell, had been dealing with it he would have spotted it right away. This is something on which action should have been taken in this place and not elsewhere.
The Earl of Mansfield: My Lords, I am obliged to the noble Lord for welcoming this particular amendment. One would have thought the noble Lord might almost be a Peer of the Liberal persuasion and totally distanced from Government because of his apparent ignorance of how long it takes for Government, even working as swiftly as this one does, to hear and appreciate representations and then act on them. But he has congratulated us on being sinners come to repentance at last, and I am glad for that.
On Question, Motion agreed to.
COMMONS AMENDMENT
131 Page 20, line 23, leave out from ("on") to end of line 24.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 131. This is a drafting amendment. It removes the reference to the area in which an activity takes place, which is already covered in paragraph 5(2)(a) of Schedule 1.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENT
132 After Clause 30, insert the following new clause: ("Metal dealers' exemption warrants.
.—(1) A licensing authority shall, on application by a metal dealer, issue an exemption warrant in relation to him if there is produced to them a certificate by the auditor of the metal dealer's business stating that, in a financial year ending in the period of 18 months immediately preceding the production to them of the certificate, the total amount received by the dealer as a principal in the ordinary course of his business in respect of metal sold or supplied by him, without any deduction being made, exceeded £100,000 or such other sum as may be substituted for that sum by order made by the Secretary of State.
(2) An order made for the purposes of subsection (1) above shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
(3) An exemption warrant shall remain in force for 3 years from the date of its issue.
(4) A licensing authority may, on application by a metal dealer, issue a temporary exemption warrant in relation to him if they are satisfied that he has not been carrying on business as a metal dealer.
(5) A temporary exemption warrant in relation to a metal dealer shall remain in force from the date of its issue or such later date as the licensing authority may specify—

(a) for a period of 18 months; or

(b) until (if earlier than the expiry of that period) the date of the grant to that dealer of an exemption warrant; or

(c) if a metal dealer's licence has been applied for by him within that period, until the date when it is granted or is deemed to have been granted or, if it is refused, until the expiry of the time within which he may lodge an appeal under paragraph 17 of Schedule 1 to this Act against that refusal or, where he has lodged such an appeal, until it has been abandoned or determined against him.

(6) It shall be a condition of a temporary exemption warrant that the dealer to whom it relates shall acquire metal only from persons selling or otherwise disposing of it in the course of trade or business.
(7) A licensing authority may revoke a temporary exemption warrant on the grounds that the metal dealer to whom it relates has contravened the condition specified in subsection (6) above.
(8) An authorised officer of a licensing authority or a constable may require any person who the officer or constable has reasonable ground to believe is carrying on business as a metal dealer without having a metal dealer's licence to produce his exemption warrant or temporary exemption warrant within a reasonable time of being required to do so; and any person who does not have a metal dealer's licence and who, having been so required to produce his exemption warrant or temporary exemption warrant within that time, fails, without reasonable excuse, to do so shall be guilty of an offence and liable on summary conviction, to a fine not exceeding £25.
(9) An officer of a licensing authority or a constable who is not in uniform shall not be entitled to exercise the powers which he may exercise under subsection (8) above until he has produced his authorisation or, as the case may be, identification to the person in respect of whom they are to be exercised.
40
(10) In this section—
"auditor" means a person who is qualified under section 161 of the Companies Act 1948 for appointment as auditor of a company within the meaning of that Act; and "financial year", in relation to a metal dealer, means the financial year, the year beginning on 6th April.").
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 132. This is a consequential amendment.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENT
133 Clause 31, page 20, line 30, leave out ("at") and insert ("in relation to").
The Earl of Mansfield: My Lords, I beg to move that the House doth agree with the Commons in their Amendment No. 133. I should like to speak also to Amendments Nos. 137 to 143, 145 to 147, and 150. This is a group of related amendments to provide for records to be kept either in book form or by modern computerised methods. In the latter case, the actual record may well be kept at a central point, away from the premises where the metal dealing activity is carried on. Amendment 133 therefore seeks to ensure that records must be kept in relation to each premises but not necessarily at the particular premises, where computerisation makes this impracticable.
Amendment 137 meets an undertaking given by the Government to the trade to look again at the bookkeeping requirements in the light of modern bookkeeping techniques. The amendment brings computer recording within the bookkeeping framework, with suitable safeguards against fraud. Although only one book for acquisitions and one for disposals may be kept at any premises, a dealer would not he precluded from keeping duplicate records for other premises at his main premises. Amendments 138 to 143 are consequential drafting amendments to cover the addition of the concept of computerisation introduced by Amendment 137 with reference to "records" rather than "books".
Amendment 145 seeks to remove an area of confusion which arose when noble Lords debated the itinerant metal dealing provisions relating to invoices. It was apparent that there was some confusion about the extent to which a seller of scrap metal was required to provide written documentation relating to the sale to an itinerant dealer. The intention has always been that the responsibility for obtaining receipts for sales of scrap and providing invoices of acquisitions of scrap metal by an itinerant metal dealer was his alone. This remains the intention but to make the position absolutely clear, "invoice" has been changed to "record". Amendments 146, 147 and 150 are consequentials. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
134 Page 20, line 34, leave out from ("metal") to end of line 35 and insert ("processed at or despatched or otherwise disposed of from that place").
135 line 36, leave out from ("received") to ("any") in line 37 and insert ("or processed at or despatched or otherwise disposed of from").
136 line 41, leave out ("or acquired").
The Earl of Mansfield: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 134 to 136 en bloc. Perhaps I may speak to Amendment No. 144 at the same time.
Subsections (3) and (6) of Clause 31 deal with the particulars to be detailed in records of metal despatched, processed or otherwise disposed of. Amendments Nos. 134 and 135 simply bring subsection (2) into line with the other subsections. Subsection (1) refers to metal acquired. Subsection (2) deals with the recording of metal acquired when received at the dealer's premises. There is no need to refer again to "acquired", and Amendment No. 136 achieves this. Amendment 144 is a drafting amendment to remove surplus verbiage.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
137 Page 21, leave out lines 1 to 7 and insert—
((3) A metal dealer shall keep records for the purposes of this section either by—
(a) keeping, at each place occupied by him for the purposes of his business as a metal dealer, books with serially numbered pages recording all metal to which this section applies received or processed at or despatched or otherwise disposed of from that place: or
(b) the use of a device for storing and processing information,
but—
(i) where he keeps books under paragraph (a) above, he shall not have in use at any one place and at any one time more than one hook for recording particulars with respect to metal received at that place and more than one book for recording particulars with respect to metal processed at, or despatched or otherwise disposed of from that place; and
(ii) where he uses a device for storing and processing information under paragraph (b) above, he shall by means of that device or otherwise, keep particulars of all modifications made in the records kept by the device.")
138 line 8, leave out ("A book") and insert ("Records").
139 line 19, leave out ("hook") and insert ("record").
140 line 43, leave out ("entered in a book") and insert ("recorded").
141 line 45, leave out ("entered") and insert ("recorded").
142 line 46, leave out ("entered") and insert ("recorded").
143 line, 47, leave out ("entered") and insert ("recorded").
144 Clause 32, page 22, line 12, leave out from ("to") to ("such").
145 Clause 34, page 22, line 40, leave out ("retain an invoice") and insert ("keep a record").

146 Page 23, line 1, leave out ("invoice") and insert ("record").
147 line 2, leave out ("its date of issue") and insert ("the date of the sale to which it relates").
The Earl of Mansfield: My Lords, I beg to move that this House do agree with the Commons in their Amendments Nos. 137 to 147 en bloc. These are consequential. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
148 Clause 35, page 23, line 17, after ("knowingly") insert ("or").
149 line 18, leave out ("or wilfully").
4.35 p.m.
The Earl of Mansfield: My Lords, I beg to move that this House do agree with the Commons in their Amendments Nos. 148 and 149 en bloc, and to speak to Amendment No. 152. Amendments Nos. 148 and 149 are drafting amendments. The Government accept that "wilfully" and "knowingly" are synonymous terms in the context of Clause 35 and that the word "wilfully" is therefore unnecessary.
Clauses 31 and 32, which deal with record keeping, require the metal dealer and the itinerant dealer to enter the name and address of the person buying metal from or selling metal to a dealer. Giving a false name and address should he an offence in regard to each type of transaction, and Amendment No. 152 fills an apparent gap in the provisions as drafted. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
150 Page 23, line 20, leave out ("invoice") and insert ("record").
151 line 22, leave out from ("exceeding") to end of line 23 and insert ("i500").
152 line 24, after ("to") insert ("or purchasing metal from").
153 Clause 36, leave out Clause 36.
154 Leave out Clause 37.
155 Clause 38, page 24, line 29, leave out ("a certified extract of such conviction") and insert ("an extract of such conviction and sentence (if any)").
156 Page 25, line 2, leave out ("(1) or").
157 line 4, leave out ("200") and insert ("500").
158 line 7, leave out ("a certified extract of a conviction") and insert ("an extract of conviction and sentence (if any)").
The Earl of Mansfield: My Lords, I beg to move that the House do agree with the Commons in their amendments Nos. 150 to 158 en bloc. These are consequential and I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
159 Clause 40, page 25, line 20, leave out ("house to house") and insert ("place to place").
160 line 39, leave out from ("metal") to first ("and") in line 40 and insert ("or of any article which is made of the metal is altered so as to make it substantially less identifiable than before the process,").
The Earl of Mansfield: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 159 and 160 en bloc. As presently drafted, an itinerant metal dealer is defined as a person who carries on a business buying and selling scrap metal by means of house-to-house collections. It is considered that this definition is too narrow and might not, for instance, cover purchases from farms or other commercial premises from which the itinerant may frequently draw his supplies. Amendment No. 159 widens the definition.
The purpose of the 48-hour retention period in Clause 32 is to allow the police sufficient time to inspect stock for stolen goods. It is obvious that goods should be kept as nearly as possible in their original form. Modem scrap yards, with their sophisticated plant, reduce metal goods in such a way as to make their original form unrecognisable.
As presently worded, the Bill prohibits "processing" but excludes "breaking up" from the definition of "processing". A dealer would, therefore, be free to break up goods immediately on receipt, thus negating the whole purpose of these provisions. This amendment removes the anomaly by removing the exclusion of dismantling or breaking up from the definition and ensuring that the goods are retained in as near as may be their original form for a period of 48 hours. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.
On Question, Motion agree to.
COMMONS AMENDMENT
161 Clause 41, Page 28, line 6, leave out ("200") and insert ("500").
The Earl of Mansfield: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 161. This is consequential. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
162 Clause 42, page 28, line 34, leave out ("they are") and insert ("it is").
163 line 41, at end insert
("(bb) the sale of coal, coke or any solid fuel derived from coal or of which coal or coke is a constituent;").
164 leave out line 44.
165 Page 29, line 2, at end insert (";or
(f) organising or participating in a public charitable collection within the meaning of subsection (14) of section 121 of this Act in accordance with permission granted under that seciton.".)
The Earl of Mansfield: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 162 to 165 en bloc. Amendment No. 162 is a drafting amendment to substitute a correct singular reference to an incorrect plural one.
Amendment No. 163 exempts the sale of coal, coke or any solid fuel derived from coal or coke from the scope of the street trading licensing requirements. This is simply because such sales are already controlled by
44
orders made under Weights and Measures legislation. A merchant operating a vehicle for the sale and delivery of solid fuel is subject to Weights and Measures regulations which provide, among other matters, for the displaying of the name and address of the seller, weights notices for the sacks sold on the vehicle and the precise documentation governing the delivery and sale of such fuels. In view of the fact that the existing Weights and Measures legislation provides adequate safeguard for consumers, it is unnecessary to impose on the trade a requirement to have, in addition, a licence granted by a local authority.
The effect of Amendments Nos. 164 and 165 is to remove the automatic exemption for anything done for charitable purposes, and in its place to provide an exemption for any activity which has been granted permission under Clause 121. One of the main reasons for the automatic exemption was to ensure that charitable bodies selling such items as poppies or flags would not be caught by the street trading provisions—although of course they would be caught by the requirements of Clause 121 on control of charitable collections. It has become clear, however, that an automatic exemption is too widely drawn and would be difficult to enforce on the spot. As, however it is necessary to exempt the poppy and flag sellers from the provisions of the street trading clauses, Amendment No. 165 provides that the licensing requirements do not apply to any activity in respect of which permission has been granted under Clause 121 on the control of charitable collections. I beg to move.
Moved, That this House doth agree with the Comons in the said amendments.
On Question, Motion agreed to.
COMMONS AMENDMENTS
166 Clause 43, page 29, line 21, leave out from beginning to ("markets") in line 23 and insert ("community, political or similar organisations;
(b)")
167 line 23, after ("livestock") insert ("fodder").
4.40 p.m.
The Earl of Mansfield: My Lords, I beg to move that the House doth agree with the Commons in their Amendments Nos. 166 and 167. Amendment No. 166 extends the exemption from private market licensing originally given to charitable and community organisations to political organisations. The political parties will thus be able to hold functions, such as bazaars, which might otherwise have been caught by the definition of private markets. Amendment No. 167 exempts fodder markets from the licensing requirements. Like the livestock and grain markets already exempted, these are essentially agricultural markets dealing direct with producers, rather than with the normal retail public. My Lords, I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENT
168 Clause 44, page 30, line 5, leave out ("held") and insert ("occupied").
The Earl of Mansfield: My Lords, I beg to move that the House doth agree with the Commons in their Amendment No. 168. This is a drafting amendment, making it clear that an exemption from public entertainment licensing requirements in respect of religious bodies can apply only when the relevant premises belongs to them or is occupied by them while being used for connected purposes. It is felt that the provision as presently worded is ambiguous and that "occupied" is more sensible. My Lords, I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
169 Clause 47, page 31, line 31, leave out from ("activity") to end of line 34 and insert ("for which, subject to a resolution of the licensing authority in relation to it under section 9 of this Act, a licence shall he required and which, subject to such a resolution, shall he regulated in accordance with the provisions specified in the order: or
(b) as an activity for which a licence shall he required and which shall he regulated in accordance with the provisions specified in the order.").
170 Page 31, leave out lines 40 to 44 and insert—("(b) for the regulation of the activity designated by the order;
(c) for the repeal or modification of any enactment which provides (whether consistently or not) for the same matter as the order;
(d) without prejudice to any provision of Part I of this Act which has effect, with or without modification, by virtue of paragraph (a) above, for the creation of offences and for making offenders liable, on summary conviction, to imprisonment for a period not exceeding 60 days or such lesser maximum period as may be specified in the order or to a tine not exceeding £200 or such lesser maximum fine as may be so specified or to both such fine and such imprisonment.").
The Earl of Mansfield: My Lords, I beg to move that the House doth agree with the Commons in their Amendments Nos. 169 and 170. These amendments clarify and, in one important respect, extend the scope of Clause 47. Amendment No. 169 is a drafting amendment making it clear beyond doubt that the Secretary of State's power under Clause 47 to designate further activities for licensing in accordance with the provisions of Part I includes power to regulate any, such activity by specific provisions in the order additional to the existing provisions in Part I and Schedule 1.
Amendment No. 170 makes one major change in this clause, and a number of minor drafting improvements. The major change can be seen in subparagraph (2)(c). Whereas the clause as previously drafted provided only for activities not previously licensed at all to be drawn within the scope of the Civic Government Bill procedures, sub-paragraph (c) now provides that, in addition, an order under Clause 47 may repeal existing legislation in respect of a licensing function and include that function within the scope of this Bill's procedures, suitably modified as necessary. This mechanism for repeal and replacement reflects the gradual approach to standardisation which I advocated in Committee. Only when existing procedures under the Bill are seen to be operating smoothly in respect of activities already licensed will the Secretary of State consider cases for further standardisation. As
46
I also pointed out in Committee, of course, many activities are licensed on a Great Britain basis, some by statutory bodies set up for that purpose.
An example is gaming licences granted by the Gaming Board for Great Britain. The scope for drawing further licensing activities within the specifically Scottish system of licensing by district councils set up in the Bill will, therefore, be limited. Nevertheless, this mechanism represents a useful first step towards longterm standarisation of local authority licensing activities, and, as such, I trust that it will be welcomed. The other changes made to Clause 47 by Amendment No. 170 are minor and technical. My Lords, I beg to move.
Moved that this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENT
171 After Clause 47, insert the following new Clause—
"Control of sex shops.
PART 11A
SEX SHOPS
(1) A district or islands council may resolve that Schedule (Control or sex shops) to this Act shall have such effect in their area: and if they do so resolve that Schedule shall have such effect as from the day specified in that behalf in the resolution (which must not be before the expiration of the period of one month beginning with the day on which the resolution is passed).
(2) A district or islands council shall, not later than 28 days before the day specified in the resolution for the coming into effect of Schedule (Control of sex shops) to this Act in the Council's area publish notice that they have passsed a resolution under this section in a newspaper circulating in their area.
(3) The notice shall state the general effect of that Schedule").
4.45 p.m.
The Earl of Mansfield: My Lords, I beg to move that the House doth agree with the Commons in their Amendment No. 171, and I shall speak also to Amendment No. 360. We now come to the sex shop provisions, as they are called and the new clause and schedule fulfil the Government's commitment given by me at the Report stage of this Bill on 2nd March to introduce a licensing system which will enable district or islands councils to control the number and location of sex shops in their area. In essence, it will he an offence, punishable on summary conviction by a fine of up to £10,000, for anyone to operate a sex shop without a licence in those areas where the local authority has adopted the scheme set out in the schedule. The provisions of the Schedule are the same in principle, although they differ on certain procedural matters, as the licensing scheme introduced in England and Wales by the Local Government (Miscellaneous Provisions) Act.
As I indicated to the House, the Government fully share the general concern about the lack of local authority control over the opening of sex shops and we have, therefore, taken the opportunity of this Bill to introduce a licensing system for sex shops. I should stress that sex shops will continue to be subject to the full panoply of the criminal law and, in particular, the Indecent Displays (Scotland) Act 1981 and the provisions on the sale, distribution and so on of obscene material in Clause 52 of this Bill. Indeed, paragraph 1 of the new schedule makes it quite clear that nothing in the licensing scheme in any way affords a defence to

47
any criminal charge. However, the criminal law can take effect only once a sex shop has opened: it does not enable a local authority to control the opening, number and location of sex shops.
Turning to the new clause and schedule, we felt that it was appropriate to deal with sex shops in a separate schedule, rather than under Schedule 1, largely because—and I suspect that this will be a widely shared view—the control of sex shops is not on all fours with the licensing of the socially acceptable activities covered by Parts I and II and Schedule! to the Bill. Paragraph 4 is the key provision in the schedule. It provides that, in those areas where the schedule is in force, no one shall operate a sex shop without a licence and except in accordance with the terms of the licence. Paragraphs 6, 7 and 8 deal with the application for the grant or renewal of a sex shop licence, the notification of such applications and objections and representations to the application.
Paragraph 9 contains perhaps the most crucial provision in the whole schedule. Paragraph 9(1) makes it clear that a local authority can either grant or renew a licence unconditionally, or grant or renew a licence subject to conditions (for example, on opening hours, displays, advertisements and so on) or refuse to grant or renew a licence. Sub-paragraph (3) sets out various factual grounds on which a local authority must refuse a licence, including where the applicant is under 18, or already disqualified from holding a licence, or has been convicted of a sex shop licensing offence under the schedule, or who has not been resident in the United Kingdom throughout the previous six months. Paragraphs 9(4) and 9(5) state that a local authority shall also refuse an application if, in their opinion, the applicant is unsuitable by reason of having been convicted of an offence or for any other reason; that if the licence were granted the sex shop would be managed by or carried on for the benefit of another person who would himself have been refused a licence; that the number of sex shops in the relevant locality at the time the application is made is equal to or exceeds the number which the council consider appropriate for that locality; and that the grant or renewal of a licence would be inappropriate, having regard to the character of the relevant locality, the use to which any premises in the locality are put and the layout of the proposed sex shop.
These last two grounds go to the heart of the matter. We believe it right that a local authority can decide that the appropriate number of sex shops in any relevant locality can be nil, and this is made quite clear in paragraph 9(6). It might be helpful if I expanded on this point. The purpose of the schedule is to enable local authorities to control the number and location of sex shops by a system of licensing: it would clearly not be appropriate to use a licensing scheme as a backdoor to imposing a total ban on sex shops on moral grounds. However, it is equally important that a local authority should be able to decide that there should he no sex shops at all in any particular locality. It should be stressed, however, that a local authority can only reach this decision in relation to each particular application and with regard to the relevant locality in that instance. Under the schedule, a local authority cannot resolve in advance of an application that they
48
will not have any sex shops in their area or any part of their area. Each application must be treated on its merits. However, a local authority may properly give some advance indication of their approach to the matter and the criteria they consider appropriate in determining whether or not a sex shop might be unacceptable in any particular locality.
In conclusion, the Government believe that whether or not a sex shop should be opened in a particular locality is a matter which can only be decided at a local level, taking fully into account local circumstances and the views of the local population. The new clause and schedule will enable local authorities effectively to control the number and location of sex shops in their area and, I believe, will be widely welcomed by all concerned. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
Lord Ross of Marnock: My Lords, Amendment No. 171 and the amendment dealing with the schedule which goes with it virtually introduce a new Bill. Many Bills have come before this House which were smaller than this one clause. There are 21 pages dealing with the licensing of sex shops. It is only fair to say that to handle the matter in this way, simply by commenting on a Commons amendment, does not reflect the importance of the subject. Certainly this subject is of importance to many people in Scotland. Admittedly there was full discussion in another place, but that cannot be said about this amendment.
We on this side of the House raised the matter during the earlier stages of the Bill. We had a pledge from the Government then that by introducing a new clause, or a new schedule, the matter would be dealt with when the Bill went to the other place. I am very glad that the Government have done so. This was an opportunity to get something done, so why not do it? We have done it. But I should make it absolutely clear that Scotland has not been smitten with a plague of sex shops. That is just not true. I think there are six shops throughout the whole of Scotland. There are two in Glasgow and there is probably the same number in Dundee. Where, however, sex shops have been established considerable alarm has been aroused, and the feeling is that the Government should give power to local authorities to do something about it. Other establishments must be licensed, including off-licences, public houses and take-away food shops. Sex shops, so-called, are not quite so socially acceptable as these other establishments.
To my mind, the Government have been more than slightly hypocritical about what they have done. I think there will have to be a political decision by a local authority to pass a resolution. They will be unable to regulate sex shops unless they formally pass a resolution giving them the power to do so. What will the argument be then? I am perfectly sure that the argument then will be that the licensing authority do not want sex shops anywhere in their area. But the Government say, "No, you must not do that. Every single application for a sex shop must be treated individually and decided individually".

49
The Government say that the licensing authority can decide how many sex shops there will be in any particular locality. If a licensing authority say that there will be no sex shops in that locality and an application is made for the establishment of a sex shop in that locality, they will turn it down and say that they have decided already that nil is the number. There is no right of appeal. It would be unfair to give local authorities the power to pass a resolution and say that they are going to have no sex shops in the whole area and then to suggest that they were abiding by the principle that everybody must he treated fairly and that everything should he done in the right way. There is nothing to prevent a local authority from saying in the case of every locality that nil shall he the number. Then one virtually arrives at the point where there is a complete ban.
Why did the Government not face up to this problem and give that power to local authorities? Instead, the Government start by giving to local authorties the discretion to introduce a resolution. I think that the Government should have been straightforward and have given them this other power as well. I have read the reply of the Minister in another place to an amendment which suggested that this should be done. That reply, from somebody dignified with the name of "Minister" in another place, was very naive indeed. Admittedly he was pretty inexperienced. I hope that the Minister does not repeat what was said in another place: that if a locality has no sex shops an application has got to he considered again, for it might be in a different area. If it is proposed to establish a sex shop in that locality, it would he in a locality where the licensing authority have already determined that there shall he no sex shops. It might be said that it is a different type of sex shop, but if it is a sex shop it requires a licence and they have already taken a decision that there shall be no sex shops in that locality.
It is very naive to suggest that because it might he different in some way or another the licensing authority might arrive at a different answer. It will be a waste of time not only for the people who apply but also for the licensing authority and all connected with it. It will not only he a waste of time: it will he quite unnecessary because of the kind of reaction that is aroused when the suggestion is made that there shall be a sex shop in a particular town or in a particular part of that town.
I am not entirely happy that we have everything right in relation to definition. I read with interest the definition of "sex article". It comes down to the core of definition because a sex shop is one that sells sex articles and then one defines sex articles. The definition is there for all to read. Someone suggested that the definition of a sex article could mean a double bed for a start because there could be no article more likely to be connected with sexual activity. There was also a suggestion that the definition could include many much advertised perfumes for men and women which seemed to imply sexual activity and some kind of sexual allure coming from them. The Government have set out their definition and I believe it will get them into a bit of trouble.
After that, the Government leave it to the local licensing authority to determine matters. I am not going to quibble with much that is in this except that I wish the Government had been a bit more straight—
50
forward and had given to each of those authorities who wanted to regulate sex shops the right to say, "We do not want them in our area.". Remember, these are democratically elected people. I think it would be quite wrong, therefore, to put forward the argument that they were being unreasonably arbitrary, as the Government might decide. They are responding to the feelings of the people in that area who have elected them, and they are the people who can also remove them. They are responsible to them. It was quite wrong for the Government to duck the political isssue. If there is anything we can do without in Scotland, it is this kind of thing. We are not saying that we should give the power to the local authorities, but we should give the local authorities the power to say "No" rather than achieve that same thing in a roundabout way with application after application in relation to a locality saying, "There shall be none in this locality." And if they take that decision it can be challenged, so why not be straightforward about it?
I did not put down an amendment because it is far too late in the day. After all, we hope to end this Session of Parliament some time next week, and who am I, coming from another place and having proclaimed the governance of the other place, to lay down the law to them in here? The only thing I regret is that the other place had a full debate and we have not. It might have been very much better if your Lordships' House had been given the same opportunities in relation to debating and amending this Bill as were given to another place. I congratulate the Government for doing what they have done, although I believe they could have done it a bit better.
5.4 p.m.
Lord Wilson of Langside: My Lords, I agree entirely with the noble Lord, Lord Ross of Marnock, that the Government in dealing with this matter would have been better advised to give complete discretion to local authorities in this context. Quite apart from that, it is most unfortunate—to put it at its lowest—that this matter in the Scottish context should have been dealt with in this way, and that these amendments should he going through without any opportunity for your Lordships' House to discuss this matter thoroughly. Something I do not at all accept—and I believe I am not alone in this—is that the only way to regulate this matter in the Scottish context is by a licensing arrangement such as that which is provided for here. I listened to much of the debate in the House on the comparable English provisions. I took no part in it for a number of reasons. For one thing, I felt that if the English felt they really wanted sex shops, who was I to interfere with that? But this way of governing Scotland is a microcosm of the kind of thing that creates Scottish nationalism. We seem to be taking up the tail of the English without any discussion at all in this House.
I can enjoy the jokes, and I hope that no one imagines that I am inspired by any kind of prudery or puritanism. Perhaps it is not for me to say whether I am a prude or a puritan, but certainly the openess about sex which we have today is much more civilised than it was in Edwardian or Victorian days—or even in the days when I was a boy. So do not let me mislead your Lordships—hut I do think that these sex shops are utterly squalid. I wonder whether anyone except the noble Earl, Lord Mansfield, or the noble Earl, Lord

51
Longford, and myself have taken a look at one. I do not know, but I have spoken to a number of the Members of this House and asked whether they have taken a look at these shops. A significant number of them replied that they have not, because they would not like it if anyone saw them coming out of such a shop.
The Earl of Longford: My Lords, if the sex shops in Scotland are half as bad as the sex shops in Soho, then they are awful.
Lord Wilson of Langside: I do not think that I would dispute that, my Lords, but I have not seen any of these sex shops in Scotland. But they are squalid establishments and I do not see why the Government should encourage them in Scotland. I suppose there has been commercial exploitation of sex all through society, except perhaps in the more primitive societies. There has always been the whore and the pimp and all sorts of other developments from there. In modern times there are the editors of newspapers who print exciting pictures of women on page 3, and so on. There are the advertising men who exploit sex and all this sort of thing. They are all birds of a feather with the owners of these sex shops, but some birds are more tolerable than others. Is this not so? We ought to have discussed this thoroughly, and this House could have done so admirably, especially in the Scottish context. I keep emphasising that because they started, I imagine, in London.
There are all sorts of arguments about this subject. Albeit that there is a great deal of the kind of exploitation of sex that the noble Lord, Lord Houghton of Sowerby, talked about when your Lordships were debating the English measure—and I accept all that—why must we be pulled into this sort of thing in this kind of way without your Lordships having been given a chance to consider alternatives? There could have been alternatives. I am not satisfied that the criminal law of Scotland as it stands could not have been used more effectively against illegal establishments. I am not critical of people's idiosyncrasies. I know that in that context, one man's idiosyncrasy is another man's fun. As I said, it is not on any of these grounds that I would question the wisdom of these provisions. It is because I think that it will not make the urban environment better—it will tend to make it worse. It is not a good thing to encourage the commecial exploitation of sex and to increase it. That is all.
The Earl of Mansfield: My Lords, the noble Lord, Lord Ross, gave a welcome to these amendments, although he chided the Government for not having the courage to give the licensing authorities power to have a blanket ban on these establishments in their areas if that is what they want to do. The noble and learned Lord, Lord Wilson of Langside, takes up a rather different point; he says he does not like the scheme at all and prefers the existing criminal law. I think so far as the latter point is concerned he may perhaps not entirely appreciate, so far as the criminal law is concerned, that until somebody opens their shop for business it is difficult to see that they are in any way committing a criminal offence because they are not
52
necessarily in breach of any planning law. Therefore, until the mischief is done it is impossible to control the activities of the sex shop keeper or owner.
If I may go much nearer to what I might call the philosophical heart of this, somehow the community has got to decide as between the rights of the individual to carry on a trade—which may not be very savoury; let me say that at once, and which is certainly, so far as the criminal law is concerned in Scotland, hedged about with all sorts of prohibitions, as the noble and learned Lord will know better than I, to do with the exposure for sale, for instance, of obscene articles. Nevertheless, the actual trade of a sex shop keeper is not in itself illegal. Therefore, one has to have some regard to the person who wishes to avail himself of the right to carry on a trade not in itself illegal. As against that there has to be balanced the rights and the overriding welfare of the public at large, and the way in which these amendments have been constructed is to enable the decisions to be taken by the local authority in effect. Whether he meant it or not, I think the noble Lord, Lord Ross, was muddled so far as areas and localities are concerned.
Lord Ross of Marnock: No.
The Earl of Mansfield: If he was not he was certainly using his language in a fairly imprecise manner. After all, under this legislation a local authority may decide, when considering any particular application for a licence, that the number of sex shops in the relevant locality, for instance, is already equal to or exceeds the number which they consider appropriate, and they may consider that for that particular locality the appropriate number is nil. They can also refuse an application for a licence by regard to the character of the relevant locality and the use to which any premises in the vicinity may be put: in other words, they can refuse a licence on the grounds for no other reason than that the proposed sex shop would be, for instance, near to a school. They can refuse, having regard to the layout of the sex shop as proposed. Therefore, the total of all this is that the local authority, having regard to each locality in their local government area, can make up their minds as to what they consider to be sufficient or indeed suitable for their own particular circumstances. Of course, it may well be that the character and area of localities changes very considerably from one end of the local authority district to another. That is a matter for them.
Finally, I say to your Lordships that, as has been mentioned but perhaps not emphasised, there is no appeal from the proper exercise of their discretion, so that there is no question of a sheriff substituting himself for their judgment so far as the matters which I have mentioned are concerned. The discretion which these amendments give to a local authority I say is complete: that it is for the local citizens in effect to decide what they consider appropriate for their particular circumstances and for them to carry out their policy, but at the same time remembering the rights of the individual. Nobody is estopped from at least making an application. He may very well find that his application meets with no favours at all, or it may be that when he makes it the council in its wisdom decides that circumstances may have changed and that with it its policy should be adjusted. All that is a matter entirely for them.

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It is for that reason that the schedule which relates to this form of activity is drafted very differently from the first schedule to the Bill which deals with all the other activities to be licensed. So I reject any criticism of the Government, either that we have not properly thought the matter out, as I think the noble and learned Lord, Lord Wilson of Lanside, was saying, or that in some way we have been guilty of a lack of courage in not giving the local authorities, as it were, carte blanche to refuse any sex shops at any time in any part of their area.
On Question, Motion agreed to.
COMMONS AMENDMENTS
172 Clause 48, page 32, line 8, after ("who") insert (", for the purposes of prostitution").
173 Page 32, line 13, leave out ("for the purpose of prostitution").
5.15 p.m.
Lord Lyell: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 172 and 173. As your Lordships will see, we now deal with Part III of the Bill, Clause 48. We come to it after very learned debate, with special and fascinating references from the noble Lord, Lord Ross, on sex shops. We now come to prostitution and soliciting. The two amendments to which we seek your Lordships' agreement with the Commons are purely drafting amendments to make it quite clear that the adverbial phrase "for the purposes of prostitution" covers what we see in the clause as "loiters", "solicits" and "importunes" respectively in subsection (1)(a),(b) and (c). We do not want this phrase "for the purposes of prostitution" to be mischievously construed as qualifying the verb "is" in line 12—"is in a public place".
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Lyell.)
Lord Ross of Marnock: My Lords, do I take it that this is purely drafting and for clarification we leave out the phrase in one part of the clause and put it in at another?
Lord Lyell: My Lords, with the noble Lord's customary clarity he is absolutely right.
On Question, Motion agreed to.
COMMONS AMENDMENTS
174 Clause 50, page 32, line 30 at end insert—
("(bb) a pedestrian precinct maintained by a local authority:").
175 Page 33, line 6, at end insert (":or to a stockperson in charge of a working dog being used for droving livestock.").
Lord Lyell: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 174 and 175. In these amendments we consider fouling dogs. Amendment No. 174 extends the offence of dogs fouling which we find in Clause 50 to pedestrian precincts which are maintained by a local authority. As your Lordships will certainly be aware, dogs fouling here can be as offensive and indeed even more offensive than fouling footpaths and footways. Amendment No. 175 exempts from the offence
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provisions that we find in Clause 50 what we have to call these days a stockperson—what many of us outside the great cities call a stockman, though doubtless young ladies do take part in this work now; however, we call them a stockperson in charge of a dog being used for such purposes as droving cattle, and I presume it would also cover droving sheep. We believe that it would be unreasonable to expect such persons, who may be in charge of a number of dogs, to break off work to attend to an individual dog in connection with the activities of this particular dog.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Lyell.)
Lord Mackie of Benshie: My Lords, I thank the Government for moving the amendment. I hope that the Government will not encourage working stock persons to drive cattle over recreational areas as there will he even more trouble from fouling than from the working dogs. Nevertheless, I think these are useful amendments.
Lord Lyell: I thank my noble neighbour for that. I am sure the Government will never wish to encourage stock persons to drive cattle over recreational areas, footpaths, play areas, and so on. My noble neighbour will be aware that dogs are used to drive cattle, certainly in local markets in and around his home and my home. As my noble friend the Minister says, at our end of the raspberry belt dogs do drive cattle and sheep around the areas described by my noble neighbour. Nevertheless we are grateful for his compliments.
On Question, Motion agreed to.
COMMONS AMENDMENT
176 After Clause 50, insert the following new clause
("Dangerous and annoying creatures.
.—(1) Any person who suffers or permits any creature in his charge to cause danger or injury to any other person who is in a public place or to give such person reasonable cause for alarm or annoyance shall he guilty of an offence and liable, on summary conviction, to a fine not exceeding £50.
(2) A district court may, if satisfied that any creature kept in the vicinity of any place where a person resides is giving that person, while in that place, reasonable cause for annoyance, make an order requiring the person keeping the creature to take, within such period as may he specified in the order, such steps (short of destruction of the creature) to prevent the continuance of the annoyance as may be so specified.
(3) An application to a district court for an order under subsection (2) above may be made by any person.
(4) Any person who fails to comply with an order under subsection (2) above shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding £200.
(5) The fact that there is a licence under the Dangerous Wild Animals Act 1976 in respect of a creature shall not of itself afford a defence in proceedings under this section relating to that creature.
(6) Where a court convicts a person of an offence under this section or discharges him absolutely or makes a probation order in relation to him, it may, whether or not (in the case of conviction) it imposes a penalty under subsection (1) or (4) above

(a) subject to subsection (8) below, make such order as it sees fit as to the disposal of the creature to which the proceedings relate:

(b) authorise a constable, in pursuance of such an order, to take possession of the creature.

(7) An order under subsection (6) above may, subject to any enactment relating to the protection or conservation of living things, be for the destruction of the creature to which it relates.

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(8) No creature disposed of under an order under subsection (6) above shall be given or sold for the purposes of vivisection.").
Lord Lyell: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 176.
As your Lordships will see, this is a new clause which re-enacts in what we hope is modem form certain provisions in respect of danger, annoyance and nuisance caused by animals. These offences are currently contained in the Burgh Police (Scotland) Act 1892 and also in certain local Acts.
Of the wide range of offences relating to the behaviour of animals which these Acts cover, only two were recommended by the Working Party on Civic Government for retention; first, that of allowing a dangerous animal to be at large in a public place without proper control and, secondly, that of failing to comply with a court order for the elimination of nuisance caused by an animal in one's care to one's neighbours. Most of the other offences covered in the 1892 Act have subsequently been taken up in specific legislation such as the Cruelty to Animals Act or the recently consolidated Animal Health Act 1981. It was decided, not without a twinge of regret, that modem sensibilities were sufficiently hardened to permit the other offence of allowing a stallion or bull to be seen in public doing their duty serving a mare or cow at last to he repealed! This clause therefore implements the Working Party's recommendation. Unfortunately, its drafting was not sufficiently advanced to allow it to be included in the Bill as introduced and it was, therefore, added to the Bill during Committee stage in the other place.
As your Lordships will see, subsection (1) makes it an offence for any person to allow a creature in his charge to endanger or injure any other person who is in a public place or give that person reasonable cause for alarm or annoyance. Where a court convicts a person of such an offence, it may also under subsection (6) make an order for the creature's disposal. Subsection (2) provides that on application duly made to it by any person a district court may conclude that a creature is causing reasonable annoyance to those residing near the place where it is kept and may order its owner to take steps to eliminate the nuisance caused. This latter provision is the first stage over a two-stage procedure. As your Lordships will see from subsections (4), (6) and (7), where an order under subsection (2) is not complied with a court may find the person responsible for the control of the creature guilty of an offence and may also make an order for the creature's disposal. Subsections (7) and (8) make it clear that, subject to the overriding provisions of conservation legislation, an order for a creature's disposal may be for its destruction, but that no creature disposed of shall be given or sold for the purposes of vivisection.
In conclusion, adequate powers to maintain amenity and safety in respect of animals are a matter of some public concern, and we hope that this amendment provides a useful statutory underpinning of good neighbourly behaviour. As such it represents a modest contribution to the well-being of the
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community, which I am sure your Lordships will welcome for that reason.
Moved, That this House doth agree with the Commons in the said amendment.—(Lord Lyell.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
177 Clause 51, page 33, line 25, leave out ("an airgun") and insert ("a crossbow, airgun, air rifle").
178 line 28, leave out subsection (6).
Lord Lyell: My Lords, I beg to move that this House doth agree with the Commons in their Amendments. Nos. 177 and 178. Your Lordships will see that these two amendments refer to Clause 51, which contains the provisions on drunkenness.
The first amendment deals with an airgun, crossbow or air rifle. Amendment 177 is designed to make it clear that, for the purposes of Clause 51(5) "firearm" includes an air rifle and a crossbow. As the Bill stood "firearm" was defined simply as including an airgun or an air pistol arid there was doubt as to whether this would cover what are known as air rifles. It was also agreed at Report stage in another place in response to an amendment tabled by the honourable Member for North Ayrshire and Bute, to add crossbows to the list. However, this addendum does not indicate that we are in any way still in the 15th century or predating the discovery of gunpowder in Scotland. We understand that crossbows are used in the form of a firearm and that is why we have added them to the definition.
Amendment 178 deletes subsection (6) of Clause 51, which covers being drunk in charge of cattle and the like. Following the comments made by the noble Lord, Lord Ross, and by various honourable Members in another place, we came to the conclusion that this provision is indeed unnecessary. The existing provision, in Section 70 of the Licensing (Scotland) Act 1903, is rarely used. The offence in Clause 51(1) of the Bill, of being drunk and incapable and not in the care or protection of a suitable person, will adequately cover the more serious cases of drunk in charge of a horse or cattle.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Lyell.) On Question, Motion agreed to.
COMMONS AMENDMENTS
179 Clause 52, page 33, line 38, leave out ("any person who wilfully") and insert ("Subject to subsection (4) below, any person who").
180 page 34, line 11, leave out ("subsection (2) above") and insert ("this section").
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 179 and 180. At Committee stage in another place it was pointed out that there was an inconsistency between subsections (1) and (2) of Clause 52. Subsection (1) makes it an offence wilfully to display obscene material, while subsection (2) makes it an absolute offence to publish, sell, or distribute obscene material, subject to the due diligence defence in subsection (4). It was suggested that both offences should be governed by "wilfully". However, while the Government fully accept the need for consistency between subsections (1) and (2), we

57
believe that the correct approach is to subject both to the diligence defence.
If the alternative suggestion was adopted, the Crown would have to establish that the accused deliberately published, sold or distributed the obscene material. We believe that this is too severe an onus. Clause 52 concentrates on the more serious, obscene material rather than merely indecent material and, therefore, we believe that the correct approach is to make both display and sale, and so on, absolute offences subject to the defence that the accused had used all proper diligence to avoid committing the offence. Such a defence will provide a proper and appropriate safeguard for an accused. Therefore, these amendments bring subsection (1) into line with subsection (2) by making both absolute offences subject to a due diligence defence.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
181 Page 34, line 35, at end insert (""photograph" includes the negative as well as the positive version;").
182 After Clause 52, insert the following new clause—
("Indecent photographs etc. of children.
.—(1) Any person who—

(a) takes, or permits to be taken, any indecent photograph of a child (meaning, in this section a person under the age of 16);

(b) distributes or shows such an indecent photograph;

(c) has in his possession such an indecent photograph with a view to its being distributed or shown by himself or others; or

(d) publishes or causes to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such an indecent photograph, or intends to do so

shall be guilty of an offence under this section.
(2) In proceedings under this section a person is to be taken as having been a child at any material time if it appears from the evidence as a whole that he was then under the age of 16.
(3) A person guilty of an offence under this section shall be liable—

(a) on summary conviction, to imprisonment for a period not exceeding 3 months or to a fine not exceeding the prescribed sum within the meaning of section 289B of the Criminal Procedure (Scotland) Act 1975 (at the passing of this Act £1,000) or to both;

(b) on conviction on indictment, to imprisonment for a period not exceeding two years or to a line or to both.

(4) For the purposes of this section, a person is to be regarded as distributing an indecent photograph if he parts with possession of it to, or exposes or offers it for acquisition by, another person.
(5) Where a person is charged with an offence under subsection (1)(b) or (c) above, it shall be a defence for him to prove—

(a) that he had a legitimate reason for distributing or showing the photograph or (as the case may be) having it in his possession; or

(b) that he had not himself seen the photograph and did not know, nor had any cause to suspect, it to he indecent.

(6) In paragraph 2 of the Schedule to the Visiting Forces Act 1952 (offences against the person in the case of which a member of a visiting force is in certain circumstances not liable to he tried by a United Kingdom court), the word 'and' immediately preceding sub-paragraph (b)(iii) shall he omitted and after the said sub-paragraph (b)(iii) there shall be added—
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(iv) section (Indecent photographs etc. of children) (1)(a) of the Civic Government (Scotland) Act 1982.'.
(7) References in the Criminal Procedure (Scotland) Act 1975 (except in sections 171 and 368 thereof) to the offences mentioned in Schedule 1 to that Act shall include an offence under subsection (1)(a) above.
(8) In this section—

(a) references to an indecent photograph include an indecent film, a copy of an indecent photograph or film and an indecent photograph comprised in a film;

(b) a photograph (including one comprised in a film) shall, if it shows a child and is indecent, be treated for all purposes of this section as an indecent photograph of a child.

(c) references to a photograph include the negative as well as the positive version:

(d) 'film' includes any form of video-recording.").

The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 181 and 182 en bloc. If I may, I shall speak to Amendment No. 365. The purpose of this new clause is to enact for Scotland the main provisions of the Protection of Children Act 1978: it is designed to catch persons who take, distribute, and so on, indecent photographs of children which fall short of being obscene and are therefore not covered by Clause 52 of the Bill. The clause will make it an offence for any person to take, or permit to be taken any indecent photograph of a child under 16; secondly, to distribute or to show such an indecent photograph: thirdly, to have in his possession such an indecent photograph with a view to its being distributed or shown by himself or others: and fourthly, to publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such an indecent photograph, or intends to do so.
The recent and impending changes in the law on obscenity in Scotland—the enactment of the Indecent Displays (Control) Act 1981, the repeal of the Burgh Police (Scotland) Act 1892 provisions, and the restriction of Clause 52 of the present Bill to obscene material—make it desirable to extend the Protection of Children Act provisions to Scotland in order to make quite clear that the taking, distribution and so on of indecent photographs of children is an offence. Although it might still be possible to catch such cases using the common law on shameless indecency, it is advisable to put the position on a clear statutory basis and thus avoid any possible doubts.
In essence, the new clause proscribes the taking, distributing, and so on, of indecent photographs of children under the age of 16 and provides suitably severe penalties for the various offences. By setting out the various provisions clearly in statute, the new clause will ensure that such activities are fully caught by the criminal law and mark the widespread abhorence of this particular kind of pornography, which, I am sure will he shared by all noble Lords. Amendment No. 365 makes the necessary amendment to the Long Title of the Bill, while Amendment No. 181 brings the definition of photograph in Clause 52 into line with that in this new clause. I beg to move.
Moved, That this House doth agree with the commons in the said amendments.—(The Earl of Mansfield.)
Lord Ross of Marnock: My Lords, I certainly wholeheartedly agree with what the Government are doing here. I think that it is absolutely essential that we should protect our children from this utterly appalling practice. It must be offensive to every right-thinking man and certainly to everyone except the most sickeningly abnormal. There are one or two who defend the right to do this kind of thing, but I do not think that anyone here would do so. I only hope that the Government have gone far enough.
I notice that the fine is up to £1,000 and the punishment by imprisonment up to three months. I should not have thought that three months was strong enough in some particular cases. I should certainly have been prepared to support a greater penalty than that. Once again, we are faced with what is virtually a new Bill. I remember when this was very much a matter of controversy as regards Private Members' Bills when it was suggested to me that this was not needed in Scotland because it could be dealt with by the legislation that we already had there. But I was never quite satisfied with that. This is explicit and this is clear, and I think that it is absolutely essential.
Lord Houghton of Sowerby: My Lords, I am surprised that it is proposed to extend this ridiculous Protection of Children Act, which applies to England and Wales, to Scotland. I had always thought that in Scotland they had an enlightened approach to moral laws and that their own common sense and strength of character was quite enough by itself without legislative protection. The 1978 Act was a ridiculous piece of legislation: it was panic legislation: we were threatened with an avalanche of indecent material relating to children coming from the United States. It was all nonsense. I am surprised that Scotland swallows this Mary Whitehouse stuff and incorporates it in the last stages of this Bill. If the Government had any intention of doing this, they should have done it earlier, because it would have been salutary to have taken stock of the operation of this legislation in England before extending it to Scotland.
So far as I am aware, there have not been more than two—if two—prosecutions in four years under the English Protection of Children Act. Indeed, at the time of the debates on this I referred to the law of Scotland which, as the Minister said a moment ago, enabled prosecutions to take place under the common law. They have something in Scotland which is called "lewd" and you can convict people of exhibiting "lewd" photographs. We call them "indecent". There is a definition of material but there is no definition of "obscenity". There is no definition of what is indecent. What is an indecent photograph?—one merely showing certain parts of the body which are normally covered? Is that the indecency of it? It depends upon what kind of photograph it is. It depends to what use it is put.
I cannot go over all the grounds of my objections to the Protection of Children Act 1978. I was one of the few Members of your Lordships' House who opposed it throughout: I still oppose it. Although it is not for me to dictate what should happen in Scotland—Heaven alone knows, it is a strange country and it is entitled to its own law—on the whole I thought that they were an enlightened race of people, but I am coming to the
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conclusion that they are just as stuffy, just as prejudiced and still as narrow-minded as the English, which is saying quite a lot.
The Earl of Mansfield: My Lords, I was not sure whether the noble Lord, Lord Houghton, condoned the sort of behaviour which is proscribed under this amendment or whether he merely thought that in Scotland we should rely on the common law and such statutory provision as we have and do our best to take care of this extremely nasty and all too prevelant offence. If it was the former, then I am afraid that I merely reject his contention, as a parent. If it is the latter—and I bow of course to the noble and learned Lord. Lord Wilson of Langside—I am advised that with the various changes in the law which have taken place, including judicial interpretation and definition, this particular amendment is desirable to tidy up, as it were, the law of Scotland and to make one or two matters absolutely plain by statute.
The noble Lord, Lord Ross, complained that the penalties were perhaps not as sufficient as they might be and as he would like. I would remind him that in subsection (3)(b) on conviction on indictment the accused can be sentenced:
"to imprisonment for a period not exceeding two years or to a fine, or to both".
I think that that would quite adequately cover the graver cases which may arise.
On Question, Motion agreed to.
COMMONS AMENDMENTS
183 Clause 53, page 35, line 3, leave out ("refuses") and insert ("fails").
184 Clause 54, page 35, line 10, leave out from beginning to first ("to") in line 17 and insert
("(a) sounds or plays any musical instrument:
(b) sings or performs; or
(c) operates any radio or television receiver, record player, tape-recorder or other sound producing device so as to give any other person reasonable cause for annoyance and fails").
185 line 21, after ("to") insert ("any offence under").
186 line 22, at end insert
("(3) Subsection (1) above shall not apply to the operation of a loudspeaker—

(a) for police, fire brigade or ambulance purposes by a water authority in the exercise of any of its functions, or by a local authority within its area;

(b) fpr communicating with persons on a vessel for the purpose of directing the movement of that or any other vessel.

(c) if the loudspeaker forms part of a public telephone system;

(d) if the loudspeaker—

(i) is in or fixed to a vehicle, and

(ii) is operated solely for the entertainment of or for communicating with the driver or a passenger of the vehicle or, where the loudspeaker is or forms part of the horn or similar warning instrument of the vehicle, solely for giving warning to other traffic, and

(iii) is so operated as not to give reasonable cause for annoyance to persons in the vicinity;

(e) otherwise than on a highway, by persons employed in connection with a transport undertaking used by the public in a case where the loudspeaker is operated solely for making announcements to passengers or prospective passengers or to other persons so employed;

(f) by a travelling showman on land which is being used for the purposes of a pleasure fair;

(g) in case of emergency.

In this subseciton, "water authority" has the meaning assigned by section 3 of the Water (Scotland) Act 1980.")

61
187 Clause 55, page 35, line 31, leave out ("refuses") and insert ("fails").
5.40 p.m.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 183 to 187 en bloc. This concerns noise. At Committee stage in another place my honourable friend the Solicitor General pointed out that Clause 54, as drafted, was not satisfactory inasmuch as while it was primarily designed to catch noise emanating from or passing into a public place, it would also catch noise made between private households or gardens to the extent that for example front rooms were "adjacent to any public place". But other inter-household noise from back rooms would not be caught. This was clearly inconsistent and the committee's views were sought on whether the clause should be restricted to public place noise or exended to cover all inter-household noise. The committee clearly favoured the latter course and Amendment No. 184 is designed to achieve this by removing the words, "in or adjacent to a public place."
There is no doubt that noise between households, particularly late at night, creates considerable annoyance. There may be difficulties in dealing with such noise as breach of the peace and the use of civil interdicts is not really a solution for most people. We therefore believe that the creation of this minor offence, with a fairly modest fine, will enable the police to deal effectively with such troublesome conduct. I do not believe that the enforcement will place an undue burden on the police: in many cases a request from a constable to desist in making the noise will suffice.
Amendments Nos. 185 and 186 are designed to clarify the relationship between Clause 54 and Section 62 of the Control of Pollution Act 1974. Amendment No. 185 makes it clear that Clause 54 does not affect the offences of operating a loudspeaker in the streets at certain times contained in Section 62, and conversely even where the use of a loudspeaker is not an offence under Section 62 it will be caught under Clause 54 if it is giving reasonable cause for annoyance and the person refuses to desist. Amendment No. 186, which is in identical terms to Section 62(2) of the 1974 Act, exempts from Clause 54 the operation of loudspeakers for various public service purposes—for example, fire, police and ambulance.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
188 Leave out Clause 56.
189 Leave out Clause 57.
Lord Lyell: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 188 and 189. During the Second Reading debate in another place various honourable Members queried whether all the provisions of the Bill, and particularly Part III of the Bill, were strictly necessary, either because they covered matters which were of a very trivial nature or because the activities involved could be adequately dealt with at common law. With this in
62
mind we have gone through the provisions of the Bill very carefully and, as regards Part III, we have come to the conclusion that some of the provisions can in fact be deleted.
I have already dealt earlier with deleting Clause 51(4), which covered the case of conduct when drunk in charge of a horse or cattle. These amendments delete Clauses 56 and 57. Clause 56 makes it an offence to throw or otherwise propel any missile so as to cause or to be likely to cause danger to any other person or damage to property, or so as to give any person reasonable cause for alarm or annoyance. It is aimed at what I think we would all rightly accept to be an activity which can cause considerable danger or alarm. Such a provision was recommended by the Working Party on Civic Government. Nevertheless, we accept that the activities at which it is aimed can be adequately covered by various common law charges, for example reckless conduct, assault or even breach of the peace, and of course recklessly discharging a firearm to the danger of any person is well established at common law. Given the adequacy of the common law in this area, we agreed to delete Clause 56.
We also came to the conclusion that Clause 57 is not strictly necessary. The activities involved, and I am thinking here particularly of making a slide on ice or snow, are too trivial to continue to be made criminal offences, and indeed I have been unable to unearth any prosecution for such activity in recent years. As far as the playing of games is concerned, in most cases it is, of course, children who are involved and the sanction of the criminal law would not be appropriate. We are also satisfied that in more serious cases involving dangerous games, a common law charge of reckless conduct or breach of the peace could be brought. I hope I have given with that brief explanation reasons for our belief why Clauses 56 and 57 should be deleted from the Bill.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Lyell.)
Lord Hughes: My Lords, I am glad that this has been done. I am only sorry that the Bill left this House with this ridiculous clause in it. It was spoken against here and I cannot remember the justification that was put forward for imposing a possible fine of £50 on a child making a slide on snow. This is one case where obviously the Commons have more sense in the matter than we had.
On Question, Motion agreed to.
COMMONS AMENDMENT
190 Clause 58, page 36, line 12, leave out ("£50") and insert ("£200").
Lord Lyell: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 190. Amendment No. 190 increases the maximum penalty for laying or lighting a fire in a public place so as to endanger any other person or give reasonable cause for alarm or annoyance or endanger any property. The maximum fine was originally set at £50 but the amendment to increase it to £200, which was tabled by a Back Bencher at Commons Committee stage, was accepted by the Government as a more appropriate penalty level for an offence presenting such substantial risks to life and property.

63
Moved, That this House doth agree with the Commons in the said amendment.—(Lord Lyell.)
On Question, Motion agreed to.
COMMONS AMENDMENT
191 Clause 59, leave out Clause 59.
Lord Lyell: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 191. This leaves out Clause 59. Clause 59 provides that it shall be an offence to use any vehicle or any moveable board or structure to display advertisements without the consent of the district or islands council, and it carries a maximum penalty of £50 for contravention of the provisions. During consideration of this clause in another place its provisions were heavily criticised on two main grounds. First, that it would require consent to be given for such small items as newspaper boards displayed outside shops, and secondly that the use of vehicles and hoards should not be a criminal offence.
The Government consulted further on this matter with the Convention of Scottish Local Authorities and concluded that there is no need for formal control over moveable boards or placards. The question of a vehicle used to display advertisements will be examined in the context of the review of the Town and Country Planning (Control of Advertisements) (Scotland) Regulations 1961. In these circumstances we agreed that the clause should he deleted.
Moved, That this House doth agree with the Commons in the said amendment.—(Lord Lyell.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
192 Clause 61, page 37, line 4, leave out from ("other") to ("it") and insert ("object from the possession of which").
193 line 5, leave out ("from his possession of it").
194 line 9, leave out ("thing") and insert ("object").
195 line 15, leave out ("thing") and insert ("object").
196 line 26, leave out ("tools or other things") and insert ("tool or other object").
197 line 30, leave out paragraph (b).
5.50 p.m.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 192 to 197 en bloc. The intention of Amendments Nos. 192 to 196, which were tabled by the Opposition and accepted by the Government, is to delete the words "usually employed in theft" so that the offence would apply to the possession of any object, so long as it could reasonably he inferred from the possession of that object that the person intended to commit theft or had committed theft. The effect of these amendments is to set out more clearly the intention behind Clause 61(1). Normally, the object in question would be something like a jemmy, but clearly there are other objects which, although not normally associated with theft, may in fact be used for such activities. An example might be a plastic credit card, which can be used to open locks. The amendments
64
would make it quite clear that possession of a plastic credit card in circumstances where it may be reasonably inferred that a person intended to commit theft would be caught by Clause 61.
Amendment No. 197 was also moved by the Opposition in Committee in another place. The Government accepted that subsection 3(b) of Clause 61 is unnecessary in that when a court orders any tool or other object to be forfeit, it already has sufficient power to make suitable arrangements for the destruction or other disposal of the said tools.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENT
198 Page 37, line 36, leave out from ("convictions") to end of line 38.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 198. Clause 61 makes it an offence for a person who has two or more convictions for theft to have in his possession burglar tools, from the possession of which it may reasonably be inferred that he intended to commit or has committed theft, provided that the person is unable to give a satisfactory explanation for his possession. Under Clause 4. "convictions" are defined in terms of Section 1(4) and Section 3 of the Rehabilitation of Offenders Act 1974. During Committee stage in another place concern was expressed that under this definition, children under 16 who had been referred to a children's hearing on the grounds that the child had committed an offence, would fall within the ambit of the Clause 61 offence. I accept that this is clearly not appropriate and would be quite contrary to the philosophy of the children's hearing system. The amendment is, therefore, designed to ensure that only those persons over 16 with a conviction proper for theft fall within the scope of Clause 61. It does this by removing the reference to the extended definition of "conviction" in the 1974 Act and leaving "conviction" to be read in its normal sense. In short, the amendment means that only those who have two or more actual convictions for theft are liable to be subject to Clause 61. We believe that this is a proper limitation.
Moved, That this House doth agree with the Commons in the said Amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENT
199 Clause 63, page 39, line 26, at end insert ("or").
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 199. This is a purely drafting amendment.
Moved, That this House doth agree with the Commons in the said amendment.
On Question, Motion agreed to.
COMMONS AMENDMENT
200 Clause 64: Leave out Clause 64.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 200. I will, with permission, speak at the same time to Amendment No. 364. It was strongly argued in another place that Clause 64 was both undesirable and unnecessary, partly because there was no indication given in the clause of the reasons for the various powers of entry or the circumstances in which they could be exercised and also because, in any event, the powers being conferred were unnecessary, given the powers of entry that exist under common law, for example where a constable suspects a crime is being committed. The Government agreed to consider these points and have concluded that the clause is indeed unnecessary and should therefore be deleted. Amendment No. 364 is consequential on the removal of Clause 64(5). The repeal proposed in that subsection now falls and the entry in the repeals schedule is therefore deleted.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
201 Clause 66, page 41, line 19, leave out ("paragraphs (a) to (e) of").
202 Page 41, line 28, at end insert
("(6A) This section does not apply in relation to processions commonly or customarily held; but a regional or islands council may, as respects their area, order that it shall apply to any such procession so held or any such class of processions so held as is specified in the order.").
203 Page 41, line 29, after ("(6)") insert ("or (6A)").
203A Page 41, line 39, after ("(6)") insert ("or (6A)").
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 201 to 203A en bloc, and I shall, with permission, speak at the same time to Nos. 205, 221A, 224 and 227.
Amendment 201 is a drafting simplification. By the substantive Amendment 202 and the consequential drafting adjustments, we have sought to meet the concern expressed by the Salvation Army that the Bill as drafted would have represented an erosion of the principle of freedom of religious expression by requiring notice, if local authorities saw fit to require this, of the Army's routine street activities. The amendments provide a general exemption from the notification requirements for processions commonly or customarily held, subject only to a reserve power under which a regional or islands council could require notice of such processions. The Salvation Army have expressed their satisfaction with the Bill as amended. Many of your Lordships expressed support for the Salvation Army's case at an earlier stage in the Bill's proceedings and I trust that these amendments will commend themselves to the House.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
Lord Ross of Marnock: My Lords, at last we have something satisfactory to all concerned, and it has
66
been a long battle. The concern of the Salvation Army is shared by other organisations, and I have spoken at every stage of the Bill about my concern for the Boys' Brigade which, some may not be aware, will have their centenary next year. There will then be processions galore in every city, town and village of Scotland, and I should not like to have thought that they would be impeded by something we had done in this piece of well-meaning but bureaucratic legislation. I am grateful to the Government for having met the wishes of the Salvation Army. It never was, I hope, the intention of the Government that they would in any way frustrate the normal activities of such a worthwhile organisation. I am grateful to them for finding words which are satisfactory and which have a very distinct echo of a draft Bill which was drawn up before ever this Government came to office. The words were already there but the Government have taken a bit of convincing that they were good enough.
Lord Mackie of Benshie: My Lords, I wish to express my gratitude to the Government on behalf of the Salvation Army and particularly to the Minister for making it quite clear on the record that he is referring to the Salvation Army and similar organisations.
On Question, Motion agreed to.
COMMONS AMENDMENT
204 Page 41, line 41, leave out subsection (9) and insert—
("(9) The regional or islands council shall as soon as a notice under subsections (1) to (3) above or an application under subsection (4) is received send a copy of that notice or application to the chief constable.").
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 204. This amendment substitutes a new subsection (9) in the clause making the regional or islands council—rather than the person proposing to hold the procession—responsible for giving a copy of any notice or application to the chief constable. As the regional or islands councils are required, in terms of the clause, to consult the chief constable about the arrangements to be made for processions in public, it is reasonable that they should be given the formal responsibility for passing on copies of any notice or application, thereby relieving the organiser of a small, but significant, chore.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENT
205 Page 42, line 6, after ("(6)") insert ("or (6A)").
6 p.m.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 205, which is consequential.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
206 Page 42, line 11, leave out ("and").
207 line 15, at end insert ("; and "public place" has the same meaning as the Public Order Act 1936.").
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 206 and 207, and I shall speak also to Amendments Nos. 228 and 229. Amendments Nos. 206 and 207 ensure that the definition of "public place" for the purposes of Part IV of the Bill will be the same as that applying to the Public Order Act 1936. The need for this adjustment was drawn to our attention by both the convention and the Association of Chief Police Officers in Scotland.
The second pair of amendments, Nos. 228 and 229, are straightforward drafting amendments, which seek to make the general effect of Clause 70 clearer. I am aware that there has been some support for the view, first expressed by the Working Party on Civic Government, that, when the new Civic Government Code is enacted, the provisions of the Public Order Act 1936 for the regulation of public processions should cease to have effect in Scotland. The Government have, thus far, taken the view that there is room for the Civic Government Code to operate in tandem with the 1936 Act provisions, which are relevant only to circumstances in which there is an expectation of serious public disorder. As noble Lords will be aware, however, the finishing touches are now being put to the review of the 1936 Act and related legislation upon which we embarked with the publication of our Green Paper in April 1980. There will therefore be future opportunities to consider the substantive question of the relationship between this Part of the Bill and the 1936 Act. But for the moment I hope that noble Lords will feel able, at this stage, to agree to these two drafting amendments.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENT
208 Clause 67, page 42, line 19, leave out ("under section 66(1) to (3)") and insert ("or falls to be treated as having been given in accordance with section 66(1)").
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 208, and I shall speak also to Amendment No. 210. These amendments are drafting improvements.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agree to.
COMMONS AMENDMENT
209 Page 42, line 22, leave out paragraph (b).
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 209, and I shall speak also to Amendments Nos. 211 and 212. Amendments Nos. 209 and 212 have the effect of enabling a regional or an islands council to impose a prohibition on the holding of a procession of which less than seven days' notice has been given in precisely the same way as it can do in the normal case. As initially drafted, the Bill
68
achieved the same result, but by an indirect route: if a council had not wished a "short notice" procession to take place, it could simply have refrained from dispensing with the normal time limits for notification. On reflection, however, it seemed preferable to adopt the suggestion made by Opposition Members in another place and to make it clear on the face of the Bill that the power to ban should be available in both the normal and the "short notice" case. Amendment No. 211 is a drafting correction. It is necessary to refer not to what the council proposes to do, but to what it decides.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENT
210 Page 42, line 34, leave out ("to them under section 66(1) to (3)") and insert ("or falls to be treated as having been given in accordance with section 66(1)").
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 210. This is consequential.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
211 Page 42, line 41, leave out ("propose") and insert ("decide").
212 Page 43, line 1, leave out paragraph (b).
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 211 and 212. These are consequential.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
213 Clause 68, page 43, line 29, leave out from ("appellant") to end of line 35.
214 page 44, line 4, leave out ("On upholding") and insert ("Subject to subsection (7) below, on").
215 line 5, at end insert ("(a) uphold the appeal and—")
216 line 6, leave out ("(a)") and insert ("(i)").
217 line 9, leave out ("(b)") and insert ("(ii)").
218 line 13, at end insert ("; or (b) dismiss the appeal.".).
219 line 14, after ("(a)") insert("(i)").
220 line 21, leave out from beginning to ("unless") in line 24 and insert—
("(7) The sheriff shall not exercise any of his powers under subsection (6) above").
221 line 34, leave out from beginning to ("to") in line 35.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 213 to 221 en bloc, and I shall

69
speak also to Amendments Nos. 222, 223, 225 and 226. Amendment No. 213 is a drafting amendment to delete a reference to the receipt of items through the post. The reference is redundant, given the general terms of Section 7 of the Interpretation Act 1978. The remaining amendments to Clause 68 are designed to restructure subsections (6) and (7) of the clause in the interests of clarity. The amendments to Clause 69 are simply drafting consequentials. In the course of redrafting the opportunity has been taken to remove the reference to "interim orders" by the sheriff, which was somewhat confusing in a context where the so-called "interim order" would, in many cases, be the effective final disposal of a case heard at short notice.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
221A Clause 69, page 44, line 37, at beginning insert ("Subject to subsection (2A) below,").
222 page 45, line 2, leave out ("or (7)").
223 line 5, leave out ("or (7)").
224 line 19, leave out ("(3)" and insert ("(2A)").
225 line 29, leave out ("or (7)").
226 line 33, leave out ("or (7)").
227 line 46, at end insert—
("(2A) This section does not apply to processions commonly or customarily held except that it applies to a procession so held if there is in force in relation to it an order under section 66(6A) of this Act.").
228 Clause 70, page 46, line 7, leave out from ("are") to ("so") in line 9 and insert ("subject to the Public Order Act 1936; and, without prejudice to that generality—
(a) an order under those sections,").
229 line 11, at end insert ("; and
(b) anything done in conformity with any such directions or order under the said section 3 or omitted, in conformity therewith, to be done shall not be an offence under section 69 of this Act.").
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 221A to 229 en bloc. These are consequential.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
230 Clause 71, page 46, line 27, leave out ("railway stations").
231 line 28, leave out ("train, ship") and insert ("vessel").
232 line 31, leave out ("or by contract") and insert—
("(aa) property found on the premises of, or used by the British Railways Board or on any vehicle, train, or vessel used by the Board").
233 page 47, line 8, leave out ("or (b)") and insert (",(b) or (d)").
234 line 9, leave out from first ("subsection") to end of line 10.
Lord Lyell: My Lords, I beg to move that this House doth agree with the Commons in their Amendments
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Nos. 230 to 234 en bloc. The amendments specifically exempt British Rail from police oversight of lost property, instead of relying on the words "or by contract", which were intended to relate only to British Rail, but might also have been used by other transport undertakings in order to impose what we would see as unreasonable conditions for handling lost property. The Government are firmly of the view that the present arrangements for handling lost property on trains, buses and aircraft should not be disturbed, and the amendments secure that policy with greater precision in relation to British Rail.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Lyell.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
235 Clause 72, page 47, line 33, leave out ("sell or otherwise dispose of the property").
236 line 36, leave out ("but shall not do so") and insert ("having regard to the whole circumstances including the nature and value of the property and the actings of the finder, offer it to the finder under section 72(1)(b) of this Act or, if in his opinion so to offer it would be inappropriate, may sell it or, if in his opinion it would be both inappropriate so to offer it and impracticable to sell it, may dispose of it or make arrangements for its disposal otherwise as he thinks fit, but he shall not do any of these things").
237 Clause 73, page 48, line 11, leave out (, if any.").
Lord Lyell: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 235 to 237 en bloc. Amendments Nos. 235 and 236 clarify the decisions on the disposal of unclaimed property which are open to the chief constable, and they provide a sequence of priorities so that normally he will offer the property to the finder before proceeding to sell it, or failing that, he will dispose of it in some other way. We believe that that should ensure that the police continue to have due regard to the position of the finder and that the incentive to finders to hand in lost property is maintained. Amendment No. 237 is a purely drafting amendment to remove a redundant phrase.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Lyell.)
On Question, Motion agreed to.
COMMONS AMENDMENT
238 Clause 76, page 49, line 20, leave out ("250") and insert ("100").
6.10 p.m.
Lord Lyell: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 238. As your Lordships will be aware, there has been considerable pressure both in your Lordships' House and in another place for a lower limit for the payment of compensation. The Government are convinced that a minimum figure is necessary in order to avoid imposing too heavy an administrative burden upon the police. On the other hand, we recognise that what constitutes a serious loss will depend upon the financial position of the owner, and it is certainly not our wish to restrict the advantages of compensation only to the relatively affluent. Amendment No. 238 seeks to strike an appropriate balance. It remains the

71
case that the vast majority of valuable articles are claimed promptly in any case.
We are particularly pleased to see the noble Lord, Lord Ross, here, and especially pleased that he continues in good voice after his arduous duties last Wednesday. I would remind him that he has only 29 days before he is on duty again in a similar position. We hope his voice will stand up to the arduous calls upon it, both abroad and here. He will be terribly pleased, as indeed your Lordships will be, with the figure of £100 which we are proposing, which was indeed moved (we regret unsuccessfully) by the noble Lord, Lord Ross, at the Committee stage. I am sure he will be pleased that I am able to move the acceptance of this amendment, and I do so now.
Moved, That this House doth agree with the Commons in the said amendment.—(Lord Lyell.)
Lord Ross of Marnock: My Lords, I thought for a minute that the noble Lord was offering me compensation for the loss of my voice, but I gather it is not that. This is a point that I think I raised during proceedings in this House earlier, and I am very glad that the Government have changed their mind about it. I think £250 is too high. The new figure is £100. The loss off 100 is an awful lot to some people, and the figure is rightly amended in this particular case.
On Question, Motion agreed to.
COMMONS AMENDMENT
239 Claues 78, page 50, line 2, after ("dog") insert ("or livestock (which expression shall have in this section the same meaning as it has for the purposes of section (killing of or injury to stray dogs worrying livestock) of this Act)").
Lord Lyell: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 239. This minor amendment removed any risk of farmers losing livestock through the actions of somebody who might be classified as a passer-by, who, when he came upon a solitary, unfenced animal, and believing that that animal was a stray, was allowed to take such an animal into his care and, indeed, become its owner after two months unless it was claimed by the farmer in the interim. The Government certainly do not wish farmers to suffer from the operation of Clause 78, and for that reason I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(Lord Lyell).
On Question, Motion agreed to.
COMMONS AMENDMENT
240 Clause 83, page 51, line 31, at end insert ("and includes a constable acting under his direction for the purpose of this Part of this Act").
Lord Lyell: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 240. This is indeed a drafting amendment which makes it quite clear that a chief constable may delegate his reponsibilities for handling lost property to other police officers in his force. It is a minor, drafting amendment, and I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(Lord Lyell.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
241 Clause 86, page 51 leave out lines 30 to 32 and insert
("b) if that person fails to make such arrangements as are referred to in paragraph (a) above within a reasonable time of having been required under that paragraph to do so, the chief constable—

(i) may make such arrangements as he thinks fit for the care and custody of the property;

(ii) if the property cannot in his opinion be safely or conveniently kept, may dispose of it, or arrange for its disposal, as he thinks fit.

(1A) When a person in relation to whose property the chief constable has made arrangements under subsection (1)(b)(i) above ceases to be in police custody, the chief constable shall make the property available to him or to any person authorised by him to act on his behalf for the puroses of this subsection").
242 line 36, leave out subsection (2).
243 Page 53, line 1, leave out ("(2)") and insert ("(1)(b)(ii)").
244 line 8, leave out ("(2)") and insert ("(1)(b)(ii)").
Lord Lyell: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 241 to 244 en bloc. Your Lordships will note that these four amendments deal with the duties of a chief constable in relation to lost property. These four amendments improve the drafting (or so we hope) of Clause 86 to make it clear that each chief constable has two choices if the property is not collected. He may dispose of the property if it would be unsafe or, indeed, inconvenient to keep it, or he may make his own arrangements for its care and custody. In the latter case he is required to return it to the owner on his release—that is, the owner's release—from custody. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Lyell.)
On Question, Motion agreed to.
COMMONS AMENDMENT
245 After Clause 89 insert the following clause
("Interpretation and Crown application of this Part
.—(1) In this Part of this Act, "chier constable" means the chief constable for the police area in which the person taken into custody, within the meaning of section 84 of this Act, is so taken and includes a constable acting under the direction of the chief constable for the purposes of this Part of this Act.
(2) This Part of this Act hinds the Crown.").
Lord Lyell: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 245. This is consequential on a previous amendment to which I spoke, Amendment No. 240. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Lyell.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
246 Clause 90, page 54, line 18, leave out ("may") and insert
("any person authorised by them may, on their behalf.").
247 line 22, leave out from ("owner.") to end of line 26 and insert ("apportion such expense among them and recover from each the appropriate sum").
Lord Lyell: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 246 and 247. At the same time I should like to

73
speak, if your Lordships would agree, to Amendments Nos. 258, 259 and 260, and also to Amendments Nos. 264 to 277 inclusive. This is a relatively large group of amendments. They make adjustments to certain of the functional clauses in Part VIII of the Bill, which deals with building matters, and to the related enforcement powers.
Amendments Nos. 246, 258 and 259 amend the entry powers in Clauses 90 and 94 to make it quite clear that these can be exercised by anyone (including a sub-contractor or a workman who is not a direct employee) who is authorised by the local authority or, as the case may be, the person responsible for the installation of lights. These amendments make the powers of entry in these two clauses consistent with the main powers in Clause 102.
Amendments Nos. 247 and 266 make it clear that where a local authority is entitled to recover expenses from more than one owner following repairs to common or joint property, they may apportion these expenses as they think fit. Previously, the apportionment was by rateable value. Representations received during the Bill's passage, however, made it clear that because of the different methods of conveyancing in different areas rateable value might not always be the most appropriate basis for that apportionment. It was therefore considered preferable to leave the precise method of apportionment to the discretion of the local authority in each case.
Amendments Nos. 260, 265, 267 and 270 together provide that wherever expenses may be recovered under Part VIII they may be recovered with interest from the date on which a demand for them was served. These amendments simply remove inconsistencies previously to be found in this Part—that is, Part VIII—giving private owners the right to recover interest with expenses and making it clear that the local authority can recover interest on all expenses which it is entitled to recover.
Amendment No. 264, which is in Clause 99, makes it clear that the powers of a district or islands council in respect of statues and monuments are without prejudice, not only to the controls over works affecting scheduled monuments but also to the provision in the Town and Country Planning (Scotland) Act 1972 controlling works on listed buildings. Amendments Nos. 268 and 269 are drafting amendments which insert the necessary references to powers of entry exercisable under Clause 90(3), and by a private individual under Clause 94(1), into Clause 103, which provides for offences in respect of powers of entry.
Finally, Amendments Nos. 271–277—the last seven amendments in this large group to which I am speaking—clarify the provision for appeals under part VIII. Amendments Nos. 271–276 make it clear that appeal is competent against any expenses claimed under this part, not merely against expenses claimed by a local authority, and that appeal against expenses includes an appeal against interest (including the rate of interest). Amendment No. 277 deletes provision for further appeal by stated case and substitutes a more usual form of appeal on a point of law in civil cases. My Lords, this has of necessity been a slightly detailed explanation. Nevertheless, I hope it has found some favour with your Lordships. Accordingly, I beg to move.
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Moved, That this House doth agree with the Commons in the said amendments.—(Lord Lyell.)
Lord Hughes: My Lords, may I ask a question in reference to the apportionment of expense where there is multiple ownership. It has been the position for many years that the basis for the apportionment of such expenditure is the rateable value and, in fact, in the disposition of many of these tenement properties the title deeds will include a reference to the repairs, for instance, being apportioned on this basis. Would I understand, therefore, that if the authority found it necessary to depart from this basis there would be sound reason for doing so and that otherwise the apportionment according to rateable value would be the normal method of proceeding?
Lord Lyell: My Lords, if by leave I may reply, I hope to give some satisfction to the noble Lord. I understand that these amendments that I have moved (particularly those in relation to the question raised by the noble Lord) give to the local authorities a general discretion to apportion in any way that they think fit expenses among the owners of the premises which were repaired. They give the local authority general powers. How they use the powers would be up to the local authority.
Lord Hughes: My Lords, then the answer to the question would be that we would normally proceed on that basis. I may mention that, by coincidence. I have just paid an account for £1.40 which is my share of the repair on a property. The bills vary from £11 to 90p depending upon the rateable value. If it had been divided equally then whoever was paying £11-odd would have been well off and I should have had to pay a little more than my £1.40.
Lord Swinfen: My Lords, is my noble friend able to give any indication of on what sort of basis apportionment would he used if rateable value is not to be so used?
Lord Lyell: My Lords, in reply to the noble Lord, Lord Hughes, I understand that I can give him the brief answer, Yes, to his question. So far as my noble friend is concerned, I am afraid I am unable to do that without notice. If I may discover the answer to his question—and there might be more than one method of apportionment apart from rateable value—then perhaps I may write to him.
Lord Ross of Marnock: My Lords, I think this is pertinent to what we are discussing. We should be very grateful if we all got a copy of that suggestion of how the apportionment is going to he made.
Lord Lyell: My Lords, certainly. I shall write to my noble friend and see that the noble Lords, Lord Ross, and Lord Hughes, obtain a copy of the letter. The noble Lord, Lord Hughes, asked the question on apportionment and I am informed that, contrary to what the noble Lord said, not all apportionment is at present carried out on the basis of rateable value; it is not the universal method in Scotland. I am informed that in some cases apportionment can be on the basis of a title deed. For example, a tenant may have an

75
obligation to pay one-half of the cost of, say, a roof repair but that obligation will be made quite clear in the title deed. Normally, we would expect the rateable value to be used but if there is something different in the title deed then the amount of the contribution from the common owner of the stair, or from the paver; would be defined by the obligation in the title deed.
Lord Hughes: My Lords, I think that, to a certain extent, that gives the answer to the question of another method of apportionment. I referred to the title deed because, obviously, if a repair which is carried out is, in the ordinary way, to be divided in a particular way according to the ownership of the property, then it will be equally reasonable if the local authority carried out work of that kind that they would follow that method. That is, obviously, one way of doing it. I would suggest that if there were a close examination of what is happening in all the local authorities in Scotland, one would find that apportionment by rateable value is by far the most common method; although I must accept the information that it is not done by all.
On Question, Motion agreed to.
COMMONS AMENDMENTS
248 Clause 91, page 55, line 17, leave out ("there").
249 leave out lines 18 and 19 and insert ("supply pipes, or soil, waste or rainwater drains or drain ventilating pipes, or").
250 line 25, leave out ("he is satisfied") and insert ("it appears to him").
251 line 33, leave out ("he is satisfied") and insert ("it appears to him").
252 line 38, leave out paragraph (a).
6.25 p.m.
Lord Lyell: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 248 to 252. Amendment No. 248 is a drafting amendment designed to make it clear that, subject to being granted warrant by the sheriff, an owner wishing to make connections to pipes may do so in the same locations as the subsection allows for installation and maintenance. Amendment No. 249 will make clear, as we undertook to do, that the ventilating pipes to which references are made are an integral part of a building's drainage system.
Amendment Nos. 250 and 251 have been introduced because the phrase
"unless he is satisfied"
means it will not be possible for the sheriff to grant decree without proof. The other standard formula,
"unless it appears to him"
will achieve the same purpose without depriving an affected proprietor of the right to be heard before warrant is granted if he chooses to enter the proceedings. Amendment No. 252 drops the provisions in subsection 3(a) of this clause allowing the sheriff to appoint an assessor to assist him in dealing with technical matters about pipes and drains. So doing will not deprive the sheriff of any necessary professional advice since existing court procedure
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allows for him to remit to any person of skill to report on factual matters.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Lyell.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
253 Clause 92, page 56, line 16, leave out ("roof").
254 line 17, leave out ("balcony").
255 page 57, line 8, leave out from ("structure") to ("in") in line 9.
257 line 11, leave out first ("such").
257 line 24, at end insert—
("(8A) The local authority shall charge such fees in respect of the discharge of their functions under this section as may be resolved by them from time to time and shall seek to ensure that the total amount of such fees is sufficient to meet the expenses incurred by them in that respect.").
Lord Lyell: I beg My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 253 to 257. Amendments Nos. 253 to 256 arise from the Government's undertaking to reconsider the need for local authority approval where roofs of permanent buildings are to be used for the erection of raised standing or seating accommodation. Local authorities have found alternatives to their existing powers under Section 31 of the Burgh Police (Scotland) Act 1903 and the amendments tabled will confine application of the clause to temporary structures only. Amendment No. 257 takes account of the administrative burden now placed on local authorities required to inspect temporary structures which do not attract a building warrant fee. It follows a suggestion from the Convention of Scottish Local Authorities and leaves the level of fee to the discretion of individual authorities, provided the total amount of fees is sufficient to meet the expenses incurred in discharging this function.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Lyell.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
258 Clause 94, line 6, after ("and") insert ("any person authorised by such council or by such owner").
259 line 7, at end insert ("on their behalf").
260 line 24, at end insert (", with interest thereon at such reasonable rate as that person may determine from the date on which a demand for the expenses is served until payment.").
Lord Lyell: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 258 to 260. These are consequential. I have already spoken to them when speaking on Amendment No. 246.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Lyell.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
261 Clause 95, page 60, line 7, leave out ("limewash or").
262 Page 60, line 7, after ("paint") insert ("or otherwise suitably decorate").
263 Page 60, line 19, leave out ("lime-washed or painted") and insert ("painted or otherwise suitably decorated").
6.30 p.m.
Lord Lyell: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 261 to 263 en bloc. Your Lordships will see that the amendments remove the somewhat redundant term "limewash" and replace it with more suitable wording. Amendments Nos. 261 to 262 were moved by the Opposition in another place putting forward the argument that it was archaic to require the "limewashing" of common stairs. The Government accepted this and moved Amendment No. 263 in consequence of the previous two amendments. The term "limewash" was originally included in the clause as several local authorities had indicated that they still required the limewashing of common stairs, as distinct from painting the stairs. The Convention of Scottish Local Authorities was of the opinion that the term was indeed archaic. The revised wording used is all-embracing and more suited to today. It still enables authorities to require limewashing if those local authorities so wish.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Lyell.)
On Question, Motion agreed to.
COMMONS AMENDMENT
264 Clause 99, page 63, line 26, after ("to") insert ("section 53 of the Town and Country Planning (Scotland) Act 1972 (control of works for demolition, alteration or extension of listed building) or").
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 264. It is not intended that the powers in Clause 99 to demolish or remove to another site statues or monuments should affect the statutory provisions protecting ancient monuments or listed buildings. Subsection 99(3) already provides that Clause 99 is without prejudice to Section 2 of the Ancient Monuments and Archaeological Areas Act 1979, which makes it an offence to carry out certain works on scheduled monuments. Many of the statues and monuments which may be affected by Clause 99 may be listed buildings within the meaning of the Town and Country Planning (Scotland) Act 1972. Listed buildings are protected by Section 53 of the 1972 Act, which provides that it is an offence to carry out works affecting listed buildings without authorisation by the local planning authority or the Secretary of State. Amendment No. 264, therefore, provides that the powers in Clause 99 are without prejudice to the overriding provisions of Section 53 of the 1972 Act for the protection of listed buildings.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
265 Clause 102, page 65, line 24, leave out from ("above") to ("from") in line 26.
266 line 31, leave out from ("may") to end of line 35 and insert ("apportion such expense among them")
267 After Clause 102, Insert the following new Clause—
("Interest on expenses.
. Where under any provision of this Part of this Act a local authority is entitled to recover expenses, they shall also be entitled to interest thereon at such reasonable rate as they
78
may determine from the date on which a demand for the expenses is served until payment but they may remit any sum or any part of any sum due to them as interest as they think fit").
268 Clause 103, page 66, line 16, after ("section") insert ("90(3),").
269 line 21, after ("106") insert ("or being entitled under section 94(1)").
270 Clause 105, page 67, line 20, after ("thereon") insert ("from the date on which the expense was incurred").
271 Clause, 108, page 68, line 3, at end insert ("under this Part of this Act by a local authority; or").
272 line 4, after ("expenses") insert ("or interest").
273 line 6, leave out (";by a local authority") and insert ("or the rate at which interest is charged against him").
274 line 9, after ("expenses") insert ("or interest (including the rate at which interest is charged)".
275 line 18, after ("expense") insert ("or interest").
276 line 25, after ("are") insert ("or interest which is").
277 leave out lines 27 to 31 and insert—
("() Any party to an appeal under subsection (1) or (2) above may appeal on appoint of law from the sheriff's decision to the Court of Session within 14 days from the date of that decision.").
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 265 to 277. These are largely technical amendments clarifying the scope of an appeal under Clause 108 and slightly modifying appeal procedures.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENT
278 Clause 121, page 75, leave out lines 39 to 41 and insert ("which takes place by means of an unattended receptacle kept in a fixed position in a public place.").
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 278.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENT
279 Page 76, line 1, leave out from ("not") to ("later").
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 279. This amendment deletes the requirement that applications for permission to hold a charitable collection must be made not more than two years before the date of the collection. The only remaining time proviso would therefore be that applications must be made not later than one month before such date.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENT
280 Page 77, line 29, leave out from ("reasons") to end of line 35.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 280. This amendment deletes references to temporal presumptions about the receipt of documents which are unnecessary given the general provisions of Section 7 of the Interpretation Act 1978 in this regard.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENT
281 Page 77, line 35, at end insert
("(9A) In upholding an appeal under subsection (9) above, the sheriff may
(a) remit the case with the reasons for his decision to the district or islands council for reconsideration of their decision: or
(b) reverse or alter the decision of the district or islands council.").
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 281. This amendment spells out the disposals available to a sheriff who has upheld an appeal against a district or islands council's decision refusing or withdrawing permission for a charitable collection or imposing or varying any condition on such permission. It makes it clear that he may either remit the case with the reasons for his decision back to the council for reconsideration, or himself reverse or otherwise alter that decision.
While, technically speaking, reference to summary application is sufficient to give the sheriff a wide discretion as to disposals, elsewhere in the Bill where appeals for summary application are provided for the methods of disposal are clarified on the face of the Bill. In the interests of internal drafting consistency, this amendment was made to give the sheriff disposing of an appeal under Clause 121 guidance as to the disposals open to him.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
282 Page 77, line 40, leave out ("subsections (1) to (9)") and insert ("subsection (1)").
283 at end insert ("A direction made under this subsection may be revoked or amended by a further direction so made.
(10A) Notwithstanding the provisions of subsection (10) above, any person who has been exempted from subsection (1) above by a direction of the Secretary of State under subsection (10) above shall, unless the Secretary of State otherwise directs, give to the district or islands council in whose area he intends to organise a public charitable collection 3 months notice of that intention.
A direction under this subsection may be revoked or amended by a further direction so made.").
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their
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Amendments Nos. 282 and 283 en bloc. Amendment No. 283 provides that national charities exempted by order under subsection (10) from the need to obtain permission from a district or islands council to hold a public charitable collection must nonetheless (except where the Secretary of State otherwise directs) give such council at least three months' notice of the date of collection. Prior notification of the collection dates of exempt charities is clearly vital to the district council's task of assigning dates to non-exempt charities: failure to notify might prejudice both national and local charities which might find themselves collecting on the same day. It had originally been our intention to rely on administrative directions to all exempt charities to give adequate notification making it clear that, where such notification was not given, the Secretary of State could impose a formal condition of notification on the exemption or, in extreme cases, revoke it. Strong representations were, however, made by the Opposition in another place that this ultimate sanction of loss of exemption was not sufficient and that an immediate requirement to inform local authorities should be placed on exempt charities.
At present, exempt charities are not statutorily required to notify unless such notification is one of the conditions attached to their exemption under the terms of subsection (10). Amendment No. 283 effectively reverses the onus of responsibility, providing that an exempt charity must give at least three months' notice of its intention to collect unless the Secretary of State specifically waives that requirement. This amendment does not of course give authorities a right to veto days chosen by the exempted charity. Since, however, it is in no one's interest for too many charities to collect on the same day in the same place, we would expect both national and local charities to exercise due flexibility in fixing suitable dates when there is (for example) overlap between a national flag day and the traditional collecting date of a local charity.
Amendment No. 282 makes a numbering change in subsection (10) to bring it into line with the drafting of subsection (10A).
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
284 Clause 122, page 78, line 26, leave out paragraphs (a) and (b).
285 Clause 123, page 78, leave out from beginning of line 39 to end of line 17 on page 79 and insert—
("123.—(1) Insofar as it is necessary to do so for the purpose of preventing nuisance or danger at, or preserving or improving the amenity of, or conserving the natural beauty of, the seashore, a district or islands council may, in accordance with this section, make bylaws—

(a) regulating or prohibiting any activity by way of trade or business with, or in expectation of personal reward from, members of the public on the seashore;

(b) regulating the use of vehicles on the seashore;

(c) regulating the exercise of sporting and recreational activities on the seashore.

(1A) Byelaws under subsection (1) above may confine the exercise of any activity (including the use of vehicles or

81
kinds of vehicles) specified in the byelaws to a part of the seashore specified in the byelaws and prohibit the exercise in that part of the sashore of any other activity (including such use) so specified.")'
286 Page 79, line 18, leave out from ("may") to end of line 19 and insert (", in accordance with this section.").
287 line 20, leave out ("waters adjacent to the seashore") and insert ("adjacent waters").
6.40 p.m.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 284 to 287 en bloc. No. 284 is a paving amendment to a later amendment. Amendments Nos. 291, 292, and 295 clarify provisions on the protection of Crown rights and public rights. Amendment No. 285 restricts the scope of the by-laws to be made under the provisions of clause 123, the regulation of trade or business activities, and the use of vehicles on the seashore. It takes up a point raised in the other place by providing that byelaws may set aside different parts of the seashore for different activities. Amendment No. 286 is a paving amendment to No. 288, and No. 287 is a drafting amendment which ensures that the definition of "adjacent waters" in Clause 125 is attracted to subsection 123(2). I beg to move.
Moved, That the House doth agree with the Commons in the said amendments en bloc.—(The Earl of Mansfield.)
COMMONS AMENDMENTS
288 Page 79, line 31, at end insert—
("(2A) A district or islands council may make, in relation to inland waters, byelaws for the same puposes as they may, under subsections (1) and (2) above, make byelaws in relation to the seashore and adjacent waters.
(2B) Byelaws may be made under this section only if—
(a) the district or islands council have complied with subsection (2C) below and made such other inquiries as may be reasonably necessary to ascertain the existence and identity of each person having—

(i) in the case of byelaws under subsection (1) above, a proprietorial interest in the seashore;

(ii) in the case of byelaws under subsection (2) above, a proprietorial interest in relation to the adjacent waters;

(iii) in the case of byelaws under subsection (2A) above, a proprietorial interst in or in relation to the inland waters; and

(iv) in any case, a proprietorial interest in any salmon fishings;

being a proprietorial interest which may be affected by the byelaws;
(b) subject to subsection (2D) below, every person whose consent is required under paragraph (a) above has consented to their being made; and
(c) the district or islands council have, in connection with their proposal to make the byelaws, consulted such person or body, if any, as appears to them to be representative of persons who engage in each sporting or recreational activity which may be affected by the byelaws.

(2C) The district or islands council shall give public notice of their proposal to make byelaws under this section and of the effect of subsection 2B (b) above in relation to that proposal in a newspaper circulating in the area where the byelaws are proposed to have effect.
(2D) If a district or islands council have complied with subsections (2B)(a) and (2C) above, but the consent of a person whose consent is required under this section cannot be obtained because his existence or identity is unknown, or
82
he cannot be found or fails to respond in any way to a request for his consent, the council may nevertheless proceed to make the byelaws but shall not proceed earlier than one month after the date of the advertisement under subsection (2C) above or, if there were more than one advertisement, the later or last of those dates.").
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 288. That amendment sets out the procedures to be followed by the district or islands council seeking to make by-laws in respect of the seashore, adjacent waters or inland waters. The new subsections (2B)(b) and (a) as read together, sought to ensure before making such by-laws the district or islands council should obtain the consent of all proprietors of land, waters or salmon fishing whose proprietary rights are likely to be affected.
Unfortunately, as your Lordships can see, Amendment No. 288 contains a technical error. There is a reference in (2B)(b) to consent required under (2B)(a), but no such specific reference to consent appears in (2B)(a). The effect of that clause, as amended in the other place, is therefore unclear and a further amendment, which I am going to move formally, No. 288A, safeguards the rights of proprietors by placing beyond doubt that the person whose consent to the by-laws is required are those identified by the district or islands council under (2B)(a) as having a relevant proprietorial interest likely to be affected by the by-laws. That is the reason for my having to table an amendment at this embarrassingly late stage. I beg to move.
Moved, That the House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
AMENDMENT TO COMMONS AMENDMENT No. 288
288A Line 23, leave out ("whose consent is required under") and insert ("having a proprietorial interest such as is mentioned, in relation to the byelaws, in").
The Earl of Mansfield: My Lords, I beg to move Amendment No. 288A.
Moved, That this House doth agree with the said amendment to Amendment No. 288.—(The Earl of Mansfield.)
On Question, amendment to the Motion agreed to.
On Question, Motion, as amended, agreed to.
COMMONS AMENDMENTS
289 Page 79, line 32, leave out from ("under") to ("may") in line 33 and insert ("this section").
290 line 42, leave out subsection (4).
291 Page 80, line 15, leave out subsaection (7) and insert—
("(7) A district or islands council, when exercising their powers under this section, shall have regard to the need to protect and maintain any public rights under the guardianship of the Crown to use the foreshore, adjacent waters or, as the case may be, inland waters.").
292 Clause 124, leave out Clause 124 and insert the following new Clause—
("Power to execute works on seashore.
.—(1) A district or islands council may, in accordance with this section, on any part of the seashore or in or on adjacent waters or the bed thereof, execute any works for the purpose of preserving, improving or restoring amenity.
(2) Works may be carried out under this section only if—
(a) the council have complied with subsection (4) below and made such other inquiries as may be reasonably

83
necessary to ascertain the existence and identity of each person having, in he seashore, or in relation to the adjacent waters or in the bed thereof or in any salmon fishings, a proprietorial interest which may be affected by the works; and
(b) subject to subsection (5) below—

(i) every such person has consented to their being carried out;

(ii) in the case of works by the district council, they have obtained the consent of the river purification board within whose area the works area to be carried out; and

(iii) in the case of works by the district council, they have, if not obliged to give notice to the coast protection authority under section 17 of the Coast Protection Act 1949, obtained the consent of the regional council within whose are the works are to be carried out.

(3) A district or islands council, when exercising their powers under this section, shall have regard to the need to protect and maintain any public rights under the guardianship of the Crown to use the foreshore and adjacent waters or the bed thereof.
(4) The district or islands council shall—

(a) give public notice of their proposal to carry out works under this section and of the effect of subsection (2)(b)(i) above in relation to that proposal in a newspaper circulating in the area where the works are proposed to be carried out; and

(b) notify the Crown Estate Commissioners of that proposal.

(5) If a district or islands council have complied with subsections (2)(a) and (4) above but the consent of a person whose consent to the carrying out of the works is required under subsection (2)(b)(i) above cannot be obtained because his existence or identity is unknown or he cannot be found or if the consent of a person whose consent is required under subsection (2)(b) above cannot be obtained because he fails to respond in any way to a request for his consent, the council may nevertheless proceed to carry out the works but shall not so proceed earlier than one month after the date of the advertisement under subsection (4) above or, if there were more than one advertisement, the later or last of these dates.")
293 Clause 125, page 81, line 12, at beginning insert ("(1)").
294 line 23, at end insert ("'proprietorial interest' means the interest of a proprietor or lessee;").
295 line 34, at end insert
("(2) Sections 122 to 124 of this Act and this section shall apply to Crown land, that is to say, land an interest in which belongs to Her Majesty in right of the Crown or belongs to a government department or is held in trust for Her Majesty for the purposes of a government department and, for the purposes of giving or withholding consent under these sections in relation to such land, the appropriate authority shall be—
(a) in relation to land an interest in which belongs to Her Majesty in right of the Crown and is within the administration of the Crown Estate Commissioners, these Commissioners;
(b) in relation to land an interest in which belongs to a government department or is held in trust for Her Majesty for the purposes of a government department, that department;
and, if any question arises as to the authority which is the appropriate authority in relation to any Crown land the question shall be determined by the Treasury.").
296 Clause 128, page 82, line 42, leave out from ("repeal") to second ("and") on page 83.
297 page 83, line 3, leave out from ("if") to end of line 4 and insert ("the said section 108 had not been repealed").
298 line 8, leave out from ("1973") to ("and") in line 11.
299 line 12, leave out from ("if") to end of line 15 and insert ("the said section 126 had not been repealed").
The Earl of Mansfield: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 289 to 299 en bloc. These amendments were moved by the Government solely to simplify the wording of the subsections to Clause 128. They were previously very complex and their meaning was obscure. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENT
300 Clause 130, page 84, line 6, at end insert
("(1A) For the purpose of extending the powers under section 3 of the Dogs Act 1906 of seizure and detention of stray dogs to those found on land or premises other than highways or places of public resort, the said section 3 shall he amended as follows
(a) in subsection (1), after the word "resort", there shall be inserted the words "or on any other land or premises";
(b) after the said subsection (1) there shall be inserted the following subsection—
"(1A) The powers under subsection (1) above shall not be exercised in relation to any dog found on any land or premises other than a highway or place of public resort unless the owner of the land or premises or persons having the right of possession thereof has consented to such exercise.".").
The Earl of Mansfield: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 300. This amendment is in response to suggestions made by the convention. At present the Dogs Act 1906, which deals with seizure of stray dogs, is in terms of the dogs being seized on a highway or place of public resort. What is also required is a power for the police or a dog warden to seize a stray dog on private land or premises providing the owner of that land consents.
This amendment therefore so provides. In practice, it will mean that if a stray dog is found in private property such as a garden, the owner or tenant will be able to telephone a dog warden, if one exists, or the police, who will be able to take it away under the terms of the 1906 Act—without ensuring, as they have to now, that the dog is found on a "highway or place of public resort". I beg to move.
Moved, That the House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
Lord Houghton of Sowerby: My Lords, no doubt noble Lords opposite were wondering what I was staying for. I do not dissent from the Commons amendment. Indeed, I think that, by the time we have agreed with the Commons in over 360 amendments, this Bill will be a model of painstaking legislation. It is quite extraordinary, really, how a Bill introduced into your Lordships' House, going through the careful and vigilant scrutiny of noble Lords on both sides of the House, should receive so much amendment in another place. It is a tribute, I think, to the way in which Parliament deals with legislation of this kind.
Another remark I would make is that by the time we part with this Bill, Scotland will obviously be a very well behaved and pleasant place to live in. That, I think, is on the credit side of this Bill. When in this Bill (in, I believe, Clause 27) we have the Scots being fined

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up to £200 for picking over the contents of a dustbin, it just shows how much care has been taken to deal with every possible form of delinquent civic behaviour.
But, on dogs, I point out that on the Local Government (Miscellaneous provisions) Bill dealing with England and Wales the Government resolutely resisted attempts to do what is now being done in Scotland. Moreover, they resolutely resisted proposals which are now being included in a completely new draft order for Northern Ireland. The draft order for Northern Ireland is a Bill in itself, but, of course, the procedures in connection with legislation in Northern Ireland are so simplified that the provisions of the draft order will not be considered in detail by either House. Yet that draft order will contain provisions which the Government would have nothing to do with when some of my noble friends and I wanted them introduced into the Local Government (Miscellaneous Provisions) Bill.
Clause 130 in the Bill, which is the subject of Amendment No. 300, does in Scotland what we wanted to be done in England; namely, to transfer powers now enjoyed by the police under the 1906 Act to wardens appointed by local authorities. The Government refused to do it. They would have no truck with proposed changes in the English Bill relating to dog control. There were sex shops galore—yards of that, miles of that—but when it came to dogs, no.
This amendment carries Clause 130 a little further. As the noble Earl on the Government Front Bench has just explained, the power of seizure is extended beyond a highway and a place of public resort. It is extended to private property, provided that the owner or occupier gives consent. But this means that stray dogs in Scotland can be picked up from private land as well as from the highway, whereas in England the power of seizure will not be in the hands of the wardens to the same extent. It will be in the hands of the police, but not the wardens—but not these powers in the hands of the police.
I think that this is a legitimate source of criticism of the way in which the Government are dealing with dogs by negative action in England and Wales, by partial action in Scotland and by complete action in Northern Ireland. I do not expect the noble Earl on the Front Bench opposite to offer any excuses for the Government. He may have no responsibility for the way in which the Government are dealing with the same sort of problems in these different ways in different parts of the United Kingdom. However, I think I am entitled to draw attention to this. The way the Government treated a Member of another place, Mr. Aspinwall, when he tried to introduce a Private Member's Bill to cover all these things for England and Wales was really quite shocking. They led him up the garden path and then deserted him when it came to the end of the proceedings in another place one Friday afternoon. So the Government's record on dogs is shocking, and I am drawing attention to the matter and hope that in our new Session we can make some progress in England and Wales.
I do not know what it is that justifies the distinction between the powers given for dealing with stray dogs in England and Wales, Scotland and Northern Ireland. I
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know that in the report of the working party six years ago special attention was drawn to the problems in Northern Ireland, which may justify the more radical approach to the whole subject which is about to be undertaken in the draft order. But, so far as I recall, the working party did not draw any attention to similar problems in Scotland, which are no different from the problems in the North of England and are probably no different from the problems of Wales, where a stray dog can be a particular threat to livestock. Anyhow, I have made my critical observations, I have paid a little tribute to the way in which Parliament does its work and I think that these comments are relevant to what we are doing now.
Lord Ross of Marnock: My Lords, I think that my noble friend has missed a lot of opportunities for barking about dogs over the years. I do not know whether it has escaped his knowledge that over the past three to four years I have been complaining about the unfortunate Minister on the other side coming forward to support private legislation applying to local authorities the powers that were given to the police in the 1906 Act, and giving the right to appoint dog wardens and to be active in respect of stray dogs. Every single district, one after the other, had to mount a separate piece of private legislation. Just imagine the cost of it, my Lords. Where was my noble friend when I sought to get general legislation? He was silent. He was not interested in the fact that we were doing good, bit by bit, in Scotland. Think of the speeches he could have made about the walls of England in respect of dogs—
Lord Houghton of Sowerby: My Lords, my noble friend knows from our long and affectionate association how shy I am of putting my spoke into matters affecting Scotland. It is almost holy ground to me. It becomes a little less so only when the Government go in for the things that I criticised earlier on.
Lord Ross of Marnock: Yes, My Lords, I appreciate that. I have noticed the difference in my noble friend since his translation from one part of Westminster to the other. This is all very good, but we have the legislation in relation to dogs scattered all over the place. I want to ask just one question. Shall we get for Scotland some measure of consolidation in relation to Dog Acts or, is it as I suspect, that we are not yet finished with the legislation and there is more to come? There could be very much more, since we made advances, even in Clause 130, after the Bill left here. We have something new put into it and it becomes all the more important that we have some consolidation, and look to see exactly what is still left in relation to the unsatisfactory position.
I hope that my noble friend will feel with me how difficult it was, knowing that this Bill was printed when the Government still brought forward from certain districts of Scotland the necessary legislation which is now scrapped by Clause 130, which states:
"Any enactment in any local Act which amends section 3 of the said Act of 1906"—
that is, all these things which we have done over the past three years—
... as it applies to the area of the council shall cease to have effect".
All that money has been thrown down the drain.
Lord Mackie of Benshie: My Lords, I suggest, as the legislation is now sensible, that we get on with it.
The Earl of Mansfield: My Lords, perhaps I may respond to this extent. I fear that I have no ministerial responsibility for what goes on so far as dogs are concerned in England and Wales or, indeed, in Northern Ireland. However, under the doctrine of collective ministerial responsibility, probably the less I say about that subject the better. Suffice it to say that this small provision in Clause 130 will be useful because, as I have made clear, police or dog wardens can take possession of a stray on private land, providing the owner of the land or a lawful occupier so consents.
So far as future legislation is concerned, I fear—if that is the word—that the noble Lord, Lord Ross of Marnock, is right. He will recollect that even now the Scottish Law Commission is preparing a comprehensive memorandum covering all the problems of civil liability in respect of animals. Whether or not this review will cover the question of dogs I do not know, but I strongly suspect that it will. I also imagine that this, or a successor Government, will want to legislate in due course in respect of that memorandum.
For those reasons, therefore, I do not think that I can promise any consideration at the moment because, as I have said, one wants to be sure one has got to the end of a particular set of legislative proposals before employing the drafting resources (which are, as the noble Lord, Lord Ross of Marnock, well knows, limited) to draft a Consolidation Bill. The only useful thing which has come out of this debate is that those who claim that Scotland, legislatively speaking, is always dragged along on the coat-tails of England are quite wrong in many instances. There are plenty of examples of that, both in this Bill and other Bills which have become Acts during the course of this Parliament.
On Question, Motion agreed to.
COMMONS AMENDMENT
301 After Clause 130, insert the following new clause: ("Killing of or injury to dogs worrying livestock.
.—(1) In any civil proceedings in respect of the death of or injury to a dog it shall be a defence to prove—
(a) that the person alleged to have killed or injured the dog acted for the protection of any livestock and was a person entitled to act for the protection of that livestock; and
(b) that within forty-eight hours of the killing or injury notice thereof was given by him or on his behalf at a police station or to a constable.
(2) For the purposes of this section a person is entitled to act for the protection of any livestock if, and only if—
(a) the livestock or the land on which it is belongs to him or to any person under whose express or implied authority he is acting; and
(b) the circumstances are not such that the livestock was killed or injured on land on to which it had strayed and either the dog belonged to the occupier or its presence on the land was authorised by the occupier.
(3) Subject to subsection (4) of this section, a person killing or causing injury to a dog shall be deemed for the purpose of this section to act for the protection of any livestock if, and only if, either—
(a) the dog is worrying or is about to worry the livestock and there are not other reasonable means of ending or preventing the worrying; or
(b) the dog has been worring livestock, has not left the vicinity and is not under the control of any person and there are no practicable means of ascertaining to whom it belongs.
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(4) For the purposes of this section the conditions stated in either of the paragraphs of the preceding subseciton shall be deemed to have been satisfied if the person alleged to have killed or injured the dog believed that the condition was satisfied and had reasonable ground for that belief.
(5) For the purposes of this section—
(a) an animal belongs to any person if he owns it or has it in his charge;
(b) land belongs to any person if he is the occupier thereof;
(c) "livestock" means cattle, horses, asses, mules, hinnies, sheep, pigs, goats and poultry, deer not in the wild state and while in captivity, pheasants, partridges and grouse; and
(d) "poultry" means the domestic varieties of the following that is to say, fowls, turkeys, geese, ducks, guinea-fowls, pigeons and quails.").
7.2 p.m.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 301. This new clause will give Scottish farmers a statutory defence in any civil proceedings following the shooting of a dog which is, or has been, worrying livestock, bringing their position into line with that of farmers in England and Wales under Section 9 of the Animals Act 1971.
This was an amendment which was tabled in the Commons following a considerable amount of pressure and debate both within and without Parliament. I hasten to say that we regard it as an interim measure precisely because of the consideration which this or a future Government will have to give to the Scottish Law Commission and its memorandum covering the problems of civil liability in respect of animals, a matter upon which I have already touched. The memorandum was published in August. Public consultation will take place until the end of February 1983. Then the commission will prepare a final report which will be studied carefully by the Government with a view to legislation in the future, but as it stands this is a very welcome amendment to the Bill. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENT
302 Clause 132: Leave out Clause 132 and insert the following new clause:
("Application to Crown.
The provisions of Parts V and VI and sections 122 to 125 of this Act apply to the Crown as provided in those provisions but otherwise this Act shall not bind the Crown.").
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 302. This technical amendment deletes the existing Crown application clause and substitutes a greatly simplified version making it clear that with certain specified exceptions this Bill shall not bind the Crown. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENT
303 Clause 134 page 85, leave out line 28.
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 303. I shall speak also to Amendment No. 305. It is our intention that except where the context otherwise requires the word "charitable" shall be construed in broad general terms where it occurs in the Bill, taking account of the context in which it occurs and the event or activity to which it refers. Rather than defining its meaning precisely in such a way as to limit its scope, we prefer to rely on the discretion of the law enforcement and prosecution authorities and ultimately of the court.
The provision that "charitable" shall he construed at large was intended to achieve this effect. On further consideration it is clear that a similar effect would he achieved by leaving the term undefined in the Bill, and this amendment therefore deletes the definition. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENT
304 Clause 135, page 86, line 9, at end insert
("(2A) An order under subsection (2) above shall have the effect of further postponing from the end of 1984 the repeal of any local statutory provision to which subsection (6) of section 225 of the Local Government (Scotland) Act 1973 applies to the extent that the local statutory provision provides for any matter which is also provided for (whether consistently or not) by or under the provision of the Burgh Police (Scotland) Acts 1892 to 1911 the repeal of which is further postponed by the order; and a further postponement under this section shall be for the same period as the further postponement under subsection (2) above to which it relates.").
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 304.
The Civic Government (Scotland) Bill does not cover provisions in the Burgh Police Acts and local Acts relating to roads and streets, since the continued need for such provisions is to be reviewed in the context of the forthcoming Roads (Scotland) Bill. As a failsafe against the possibility that this Bill will not have been enacted by the end of 1984, subsection (2) provides for the further postponement by order of the repeal of specified Burgh Police Act provisions relating to roads and streets.
There are also a large number of provisions relating to roads and streets in local legislation which it is desirable to be able to extend beyond the end of 1984. Extension of such local statutory provisions is already possible under Section 225(6)(a) of the Local Government (Scotland) Act 1973, but an extension order under section 225 would require the provisions which are to be exempted from appeal to be specified individually.
Since the task of identifying precisely sections or parts thereof whose repeal it was desired to postpone would impose a heavy administrative burden on local authorities, Amendment No. 304 provides for the extension of cognate local Act provisions to follow automatically from an order specifying Burgh Police Act provisions for extension under clause 135(2). I beg to move.
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Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
305 Clause 137, page 87, line 8, at beginning insert ("Without prejudice to section 13 of the Interpretation Act 1978 (anticipatory exercise of statutory powers)").
306 Clause 138, page 88, line 25, after ("Act") insert ("except section (Journeys in England and Wales by vehicles and drivers licensed under this Act), which applies to England and Wales)").
In the Schedules
307 Schedule 1, page 89, line 5, after ("1") insert "—(1)".
308 leave out lines 12 to 25 and insert—
"(2) An application under sub-paragraph (1) above shall specify—

(a) the kind of licence in respect of which the application is made;

(b) where the applicant is a natural person, his full name and address and, where the applicant himself is not to be carrying on the day-to-day management of the activity in relation to which the application is made, the full name and address of any employee or agent who is;

(c) where the application is made by or on behalf of a person other than a natural person,

(i) the full name of the person;

(ii) the address of its registered or principal office;

(iii) the names and private addresses of its directors, partners or other persons responsible for its management; and

(iv) the full name and address of any employee or agent who is to carry on the day-to-day management of the activity in relation to which the application is made;

(d) the address of the premises, if any, in or from which and the area in which the activity is to be carried on; and

(e) such other information as the authority may reasonably require.

(3) Where the application relates to a licence for an activity which is wholly or mainly to be carried on in premises, it shall contain one or other of the following declarations by the applicant, that is to say, a declaration that he is complying with paragraph 2(2) below or a declaration by him that he is unable to do so because he has not such rights of access or other rights in respect of the premises as would enable him to do so, but that he has taken such reasonable steps as are open to him (specifying them) to acquire those rights and has been unable to acquire them.").
309 line 30, leave out from beginning to end of line
5 on page 90 and insert—
("(2) Where an application is for the grant or renewal of a licence in relation to an activity wholly or mainly to be carried on in premises, the applicant shall, for a period of 21 days beginning with the date on which the application was submitted to the licensing authority, display a notice complying with sub-paragraph (3) below at or near the premises so that it can conveniently be read by the public. (3) The notice shall state—

(a) that application has been made for a licence;

(b) the particulars required under paragraph 1(2) above to be specified in the application;

(c) that objections and representations in relation to the application may be made to the licensing authority in accordance with paragraph 3 below;

(d) the effect of paragraph 3(1) to (3) below.

(3A) Where an application contains a declaration that the applicant is complying with sub-paragraph (2) above, the applicant shall, as soon as possible after the expiry of the period of 21 days referred to in that sub-paragraph, submit to the licensing authority a certificate stating that he has so complied.
(3B) An applicant shall not be treated as having failed to comply with sub-paragraph (2) above if the notice was, without any fault or intention of his, removed, obscured or defaced before the 21 days referred to in that sub-paragraph have elapsed, so long as he has taken reasonable steps for its

91
protection and, if need be, replacement; and if he has cause to rely on this sub-paragraph, his certificate under subparagraph (3A) above shall state the relevant circumstances.
(3C) Where an application contains a declaration that the applicant is complying with sub-paragraph (2) above, and—

(a) he fails to submit the certificate required by subparagraph (3A) above;

(b) in the circumstances referred to in sub-paragraph (3B) above, he has not, in the opinion of the licensing authority, taken reasonable steps for the protection or, as the case may require, replacement of the notice; or

(c) the licensing authority is, at any time before they reach a final decision on the application, satisfied that the notice was not displayed in accordance with this paragraph,

they may require the applicant to display the notice again for a period of 21 days beginning with such date as they may specify and the provisions of this paragraph shall apply in respect of such display as they apply in respect of display under sub-paragraph (2) above.").
310 Page 90, line 10, at end insert—
("(aa) shall, in accordance with sub-paragraph (5) below, cause public notice to be given of an application made to them for the grant or renewal of a licence in relation to an activity wholly or mainly to be carried on in premises if the application contains a declaration that the applicant has been unable to comply with the requirements of sub-paragraph (2) above;").
311 leave out line 14, and insert ("and notice of which they are not obliged to give under this subparagraph").
312 leave out lines 18 to 24 and insert—

("(a) the particulars required under paragraph 1(2) above to be specified in the application;

(b) that objections or representations in relation to the application may be made to the licensing authority in accordance with paragraph 3 below; and

(c) the effect of paragraph 3(1) to (3) below.").

313 line 28, leave out from ("above") to end of line 29.
314 line 31, leave out paragraph 3 and insert—
("3.—(1) Any objection or representation relating to an application for the grant or renewal of a licence shall, subject to sub-paragraph (2) below, be entertained by the licensing authority if, but only if, the objection or representation—

(a) is in writing;

(b) specifies the grounds of the objection or, as the case may be, the nature of the representation;

(c) specifies the name and address of the person making it;

(d) is signed by him or on his behalf;

(e) was made to them within 21 days of whichever is the later or, as the case may be, latest of the following dates—

(i) where public notice of the application was given under paragraph 2(4) above, the date when it was first so given;

(ii) where the application relates to a licence for an activity which is wholly or mainly to be carried out in premises and the authority have specified a date under paragraph 2(3C) above, that date;

(iii) in any other case, the date when the application was made to them

(2) Notwithstanding sub-paragraph (1)(e) above, it shall be competent for a licensing authority to entertain an objection or representation received by them before they take a final decision upon the application to which it relates if they are satisfied that there is sufficient reason why it was not made in the time required under that sub-paragraph.
(3) An objection or representation shall be made for the purposes of sub-paragraph (1) above if it is delivered by hand within the time there specified to the licensing authority or posted (by registered or recorded delivery post) so that in the normal course of post it might be expected to be delivered to them within that time.
(4) The licensing authority shall send a copy of any relevant objection or representation (within the meaning of paragraph 18 below) to the applicant to whose application it relates.").
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315 Page 92, line 8, leave out paragraph 4 and insert
("4.—(1) In considering an application for the grant or renewal of a licence, a licensing authority may make such reasonable inquiries as they think fit and include the results of these inquiries in matters they take into account, but where they intend so to include any of these results they shall notify the applicant of that intention.
(2) A licensing authority may, before reaching a final decision upon such an application, give the applicant and any person who has made a relevant objection or representation (within the meaning of paragraph 18 below) in relation to the application an opportunity to be heard by the authority and, where they propose to do so, shall, within such reasonable period (not being less than 7 days) of the date of the hearing, notify the applicant and each such person of that date.
(3) A licensing authority shall not reach a final decision upon such an application—

(a) in relation to which a relevant objection or representation (within the meaning of paragraph 18 below) has been made to them or in relation to which they intend to take into account any result of their inquiries under subparagraph (1) above; and

(b) in respect of which they have not, under this paragraph, given the applicant and any person who has made any such objection or representation an opportunity to be heard,

unless they have given the applicant an opportunity to notify them in writing of his views on such objection or representation or, as the case may be, result within such reasonable period (not being less than 7 days) as they may specify.
(4) The period referred to in sub-paragraphs (2) and (3) above shall begin with the date when the notification given by the licensing authority for the purpose of sub-paragraph (2) or, as the case may be, (3) is delivered to the person concerned and, when it is sent by post, it shall be treated as being delivered at the time when it might he expected to be delivered in the normal course of post.").
316 line 35, leave out from beginning to ("and") in line 36.
317 line 44, after ("grant") insert ("or renew").
318 line 46, leave out from beginning to end of line 2 on page 93 and insert
("(a) the applicant or, where the applicant is not a natural person, any director of it or partner in it or any other person responsible for its management, is either—

(i) for the time being disqualified under section 7(8) of this Act, or

(ii) not a fit and proper person to be the holder of the licence;

(aa) the activity to which it relates would be managed by or carried on for the benefit of a person, other than the applicant, who would be refused the grant or renewal of such a licence if he made the application himself.").
319 Page 93, line 17, leave out sub-paragraph (4).
320 line 19, at end insert—
("(4A) A licensing authority shall not, in a case where a certificate falls to be submitted to them under paragraph 2(3A) above, reach a final decision under this paragraph in respect of the application to which the certificate relates until it has been so submitted.")
321 at end insert—
("(4B) A licensing authority shall in accordance with sub-paragraph (4C) below, notify their decision under sub-paragraph (1) above to—

(a) the applicant;

(b) the chief constable;

(c) any person who made a relevant objection or representation (within the meaning of paragraph 18 below) in relation to the application; and

(d) where the application was for a licence for an activity wholly or mainly to be carried on in premises, the fire authority.

(4C) Notification shall be made under sub-paragraph (4B) (a) (b) or (d) above within 7 days of the decision to be notified by sending to the person concerned written notice of the decision and under sub-paragraph (4B)(c) above either by so doing or by publishing within that time, in a newspaper circulating in the area of the licensing authority notice of the decision.")

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322 line 30, leave out ("1(iii)") and insert ("1(2)(b) or (c)(iv)").
323 line 36, leave out sub-paragraph (7).
324 line 39, leave out sub-paragraph (8).
325 line 43, leave out paragraph 6.
326 Page 94, line 32, leave out ("2 to 4, 5(1) to (3) and 6") and insert ("1(3), 2 to 4, and 5(1), (2) and (4A) to (4C)").
327 line 39, leave out from beginning to end of line 43.
328 Page 95, line 4, at end insert ("but, where the holder of or the applicant for a temporary licence has also made an application for a licence under paragraph 1 above in respect of the same activity, the temporary licence, if granted, shall continue to have effect until—

(a) the licence applied for under paragraph 1 has been granted, whether as a result of an appeal under paragraph 17 below or not, or has been deemed to have been granted; or

(b) where the licensing authority have refused that application, the time within which an appeal under paragraph 17 below against that decision may be made has elapsed; or

(c) when such an appeal has been lodged, it has been abandoned or determined.").

329 line 16, at end insert—
("(2A) In the event of the death of a holder of a licence (except in the case of a licence referred to in section 13 of this Act) that licence shall be deemed to have been granted to his executor and shall, unless previously revoked, suspended or surrendered, remain in force until the end of the period of 3 months beginning with the death and shall then expire; but the licensing authority may from time to time, on the application of the executor, extend or further extend that period if they are satisfied that the extension is necessary for the purpose of winding up the deceased's estate and that no other circumstances make it undesirable.
(2B) Where one of the joint holders of a licence ceases to be such, the licence shall continue in force as if held by its remaining holder for a period of six weeks from the date of such cessation but, where the remaining holder has made an application under paragraph I above for a licence in respect of the same activity within that period of six weeks, that period shall he extended until the time specified in subparagraph (2D) below.
(2C) If an application for the renewal of a licence is made before its expiry, the existing licence shall continue to have effect until the time specified in sub-paragraph (2D) below.

(2D) The time referred to in sub-paragraphs (2B) and (2C) above is—

(a) the time when the licence applied for under paragraph I above is granted or renewed, whether as a result of an appeal under paragraph 17 below or not, or has been deemed to have been granted or renewed; or

(b) where the licensing authority have refused that application, the time within which an appeal under paragraph 17 below against that decision may be made has elapsed; or

(c) where such an appeal has been lodged, the time when it has been abandoned or determined.").

330 leave out lines 17 and 18 and insert—
("(3) Where a relevant objection or representation (within the meaning of paragraph 18 below) has been made in relation to an application".)
331 line 19, after ("not") insert (", unless it has been deemed to have been granted under section 3(4) of this Act.").
332 line 26, leave out from beginning to end of line 35.
333 Page 96, line 22, at end insert—
("(6A) A licensing authority shall, within 7 days of their decision under sub-paragraph (2) above, send written notice of their decision to the holder of the licence and the chief constable and, where the change is to premises, to the fire authority.").
334 line 44, at end insert—
("(3A) A licensing authority shall, within 7 days of their decision under sub-paragraph (1) above, send written notice of their decision to the holder of the licence and the chief constable and, where the licence relates to an activity wholly or mainly carried on in premises, to the fire authority.").
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335 Page 97, line 3, leave out sub-paragraphs (5) to (8).
336 leave out line 26 and insert ("if in their opinion—").
337 leave out lines 27 and 28 and insert—
("(a) the holder of the licence or, where the holder is not a natural person, any director of it or partner in it or any other person responsible for its management, is not or is no longer a fit and proper person to hold the licence;
(aa) the activity to which the licence relates is being managed or carried on for the benefit of a person, other than the licence holder, who would have been refused the grant or renewal of the licence under paragraph 5(3) above;").
338 line 29, leave out ("that").
339 line 33, leave out ("that").
340 Page 98, line 6, at end insert ("and, subject to sub-paragraph (4A) below, include the results of their inquiries in the matters to which they have regard in such consideration.
(4A) Where a licensing authority intend to include any of the results of their inquiries under sub-paragraph (4)(b) above in the matters to which they have regard for the purposes of subparagraph (4) above, they shall notify the holder of the licence of that intention.
(4B) A licensing authority may, whether upon an application made to them or not, recall an order made under this paragraph.").
341 line 7, leave out from ("authority") to ("give") in line 8 and insert ("in considering whether or not to suspend a licence may, but, before deciding to do so, shall").
342 line 16, after ("with") insert ("their duty under").
343 line 22, leave out ("it is proposed to suspend the licence") and insert ("the suspension of the licence is to be considered and, where they decide to exercise their power under that sub-paragraph, they shall cause such notice, copy and note to be sent to those persons not later than that time").
344 leave out lines 24 to 37.
345 Page 99, line 6, leave out sub-paragraphs (11) to (14) and insert—
("(11) a licensing authority shall, within 7 days of their decision under sub-paragraph (1) above, send written notice of their decision to the persons referred to in sub-paragraph (5)(a), (c) and (d) above in relation to the licence and to any person who, in pursuance of sub-paragraph (5)(b) above, was heard by the authority before they reached that decision.").
346 line 35, at end insert ("and include the results of their inquiries in the matters to which they have regard in such consideration.
(2A) Where a licensing authority intend to include any of the results of their inquiries under sub-paragraph (2) above in the matters to which they have regard for the purposes of this paragraph they shall notify the holder of the licence of that intention.").
347 line 37, leave out ("proposed suspension of") and insert ("question whether or not to suspend").
348 Page 100, line 1, leave out sub-paragraphs (6) to (9) and insert—
("(6) A licensing authority shall, within 7 days of their decision under sub-paragraph (1) or (5) above, send written notice of their decision to the holder of the licence, the chief constable and, were the licence relates to an activity wholly or mainly carried on in premises, to the fire authority.").
349 line 28, at end insert ("or of a court, under section 7(8)(a) of this Act, to revoke it.").
350 line 34, at end insert—
("(4) Where a licence has been surrendered under this paragraph on its revocation under section 7(8)(a) of this Act or its suspension under this Schedule and the revocation or suspension is quashed or recalled the licensing authority shall re-issue the licence.").
351 line 37, at end insert—
("Sending of notice by post
16A. When a licensing authority sends by post, for the purposes of paragraphs 5(4C), 10(6A), 11(3A), 12(11), or 13(6), written notice of its decision, it shall be treated as having been sent within the time required if it was posted so that in the normal course of post it might be expected to be delivered to the person concerned within that time.

95
Notification of decisions and giving of reasons
16B.—(1) A licensing authority shall, within 10 days of being required to do so under sub-paragraph (2) below, give reasons in writing for arriving at any decision of theirs under this Schedule—

(a) to grant or renew a licence or to refuse to do so;

(b) to consent or to refuse to consent to a material change in any premises, vehicle or vessel;

(c) to vary or refuse to vary the terms of a licence:

(d) in relation to paragraph 12 above—

(i) to suspend a licence or to refuse to do so;

(ii) as to the period of suspension;

(iii) ordering immediate suspension;

(e) to suspend a licence under paragraph 13 above or to refuse to do so.

(2) Reasons for a decision referred to in sub-paragraph (1) above shall be given by the licensing authority on a request being made to the authority by a relevant person within 28 days of the date of the decision.
(3) Nothing in this paragraph affects the power of the sheriff under paragraph 17 below to require a licensing authority to give reasons for a decision of the authority—

(a) which is being appealed to the sheriff under that paragraph; and

(b) for which reasons have not been given under this paragraph.

(4) In this paragraph. "relevant person" means—

(a) in respect of a decision specified in subparagraph (1)(a) above, the applicant or any person who made a relevant objection or representation (within the meaning of paragraph 18 below) in relation to the application to which the decision relates;

(b) in respect of a decision specified in sub-paragraphs (1)(b) to (e) above, the holder of the licence or the chief constable;

(c) in respect of a decision specified in sub-paragraphs (1)(b) to (e) above which relates to an activity wholly or mainly carried on in premises, the fire authority;

(d) in respect of a decision to consent or to refuse to consent to a material change in premises, the fire authority; and

(e) in respect of a decision specified in sub-paragraph (1)(d) above, any person who, in pursuance of paragraph 12(5)(b) above, was heard by the licensing authority.").

352 line 39, leave out from beginning to end of line 24 on page 102 and insert—
("17.—(1) Subject to sub-paragraph (7) below, a person who may, under this Schedule, require a licensing authority to give him reasons for their decision may appeal to the sheriff against that decision.").
353 Page 102, line 25, leave out ("sub-paragraph (6) above") and insert ("this paragraph.".).
354 line 27, leave out ("or Part II of this Act.").
355 line 33, leave out ("14") and insert ("28").
356 leave out from ("against") to end of line 40.
357 line 47, leave out ("6, 11, 12 or 13") and insert ("16B".).
358 Page 103, line 28, at end insert ("but he shall not do so unless he is satisfied that all steps which in the circumstances were reasonable have been taken with a view to securing that notice of the appeal and an opportunity of being heard with respect to it have been given to the authority.")
359 line 34, at end insert—
("Interpretation
18. In this Schedule, 'relevant objection or representation' means—

(a) in paragraphs 1 to 4, objection or representation which, under paragraph 3 above, the licensing authority are obliged to or intend to entertain; and

(b) in the other paragraphs, an objection or representation which, under the said paragraph 3, they were obliged to or intended to entertain.").

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360 After Schedule 1, insert the following new schedule—
("SCHEDULE CONTROL OF SEX SHOPS
Saving for existing law
1. Nothing in this Schedule—

(a) shall afford a defence to a charge in respect of any offence at common law or under any enactment other than this Schedule:

(b) shall be taken into account in any way—

(i) at a trial for such an offence: or

(ii) in proceedings for condemnation under Schedule 3 to the Customs and Excise Management Act 1979 of goods which section 42 of the Customs Consolidation Act 1876 prohibits to be imported or brought into the United Kingdom as being indecent or obscene; or

(c) shall in any way limit the other powers exercisable under any of those Acts.

Meaning of 'sex shop' and 'sex article'
2.—(1) In this Schedule 'sex shop' means any premises, vehicle, vessel or stall used for a business which consists to a significant degree of selling, hiring, exchanging, lending, displaying or demonstrating sex articles.
(2) No premises, vehicle, vessel or stall shall be treated as a sex shop by reason only of its use for the exhibition of moving pictures by whatever means produced.
(3) In this Schedule 'sex article' means—
(a) anything intended for use in connection with, or for the purpose of stimulating or encouraging—
(i) sexual activity; or
(ii) acts of force or restraint which are associated with sexual activity; and
(b) anything to which sub-paragraph (4) below applies, but does not include any articles which are manufactured for use primarily for the purposes of birth control or which primarily relate to birth control.
(4) This sub-paragraph applies—
(a) to any article containing or embodying matter to be read or looked at or anything intended to be used, either alone or as one of a set, for the reproduction or manufacture of any such article: and
(b) to any recording of vision or sound, which—
(i) is concerned primarily with the portrayal of, or primarily deals with or relates to, or is intended to stimulate or encourage, sexual activity or acts of force or restraint which are associated with sexual activity; or
(ii) is concerned primarily with the portrayal of, or primarily deals with or relates to, genital organs, or urinary or excretory functions.
Miscellaneous definitions
3. In this Schedule—
'chief constable', in relation to the area of a district or islands council, means the chief constable for the area which includes the area of the council;
'fire authority' in relation to the area of a district or islands council, means the authority discharging in that area the functions of fire authority under the Fire Services Acts 1947 to 1959;
'relevant objection or representation' means—
(a) in paragraphs I to 8, an objection or representation which, under paragraph 8 below, the district or islands council are obliged to or intend to entertain; and
(b) in the other paragraphs, an objection or representation which, under the said paragraph 8, they were obliged to or intended to entertain.
Requirement for licences for sex shops
4. Subject to the provisions of this Schedule, no person shall in any area in which this Schedule is in effect use any premises, vehicle, vessel or stall as a sex shop except under and in accordance with the terms of a licence granted under this Schedule by the district or islands council for the area.
Waivers
5.—(1) Any person who—
(a) uses in any area any premises, vehicle, vessel or stall as a sex shop; or
(b) proposes to do so,

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may apply to the district or islands council for the area for them to waive the requirement of a licence.
(2) An application under this paragraph may be made either as part of an application for a licence under this Schedule or without any such application.
(3) An application under this paragraph shall be made in writing and shall contain the particulars specified in paragraph 6(2) to (6) below and such particulars as the district or islands council may reasonably require in addition.
(4) The district or islands council may waive the requirement of a licence in any case where they consider that to require a licence would be unreasonable or inappropriate.
(5) A waiver may be for such period as the district or islands council think fit.
(6) Where the district or islands council grant a waiver, they shall notify the chief constable and the applicant for the waiver that they have granted the application.
(7) The district or islands council may at any time give a person who would require a licence but for a waiver notice that the waiver is to terminate on such date, not less than 28 days from the date on which they gave the notice, as may be specified in the notice.
(8) The district or islands council shall give the chief constable a copy of any notice given by them under subparagraph (7) above.
Applications for the grant and renewal of licences
6.—(1) An application for the grant or renewal of a licence under this Schedule shall he made in writing to the district or islands council.
(2) An application made by a natural person shall state—

(a) the full name and address of the applicant;

(b) his age: and

(c) where the applicant himself is not to be carrying on the day to day management of the sex shop, the full name, address and age of the person who is, and shall he signed by the applicant or his agent.

(3) An application made by or on behalf of a person other than a natural person shall state—

(a) the full name of the person;

(b) the address of its registered or principal office;

(c) the full names and private addresses of its directors, partners or other persons responsible for its management; and

(d) the full name, private address and age of any person who is to carry on the day to day management of the sex shop and shall be executed by the applicant or signed by its agent.

(4) An application relating to premises shall state the full address of the premises.
(5) An application relating to a vehicle, vessel or stall shall state where it to be used as a sex shop.
(6) Every application shall contain such particulars as the islands or district council may reasonably require in addition to any particulars required under sub-paragraphs (2) to (5) above.
Notification of applications
7.—(1) An applicant for the grant or renewal of a licence under this Schedule shall give notice of the application.
(2) Notice shall in all cases he given by publishing an advertisement in a newspaper specified by the district or islands council, being a newspaper circulating in their area and the applicant shall supply a copy of that advertisement to the district or islands council.
(3) Publication under sub-paragraph (2) above shall be not later than 7 days after the date of the application.
(4) Where the application is in respect of premises, notice of it shall in addition be displayed for 21 days, beginning with the date of the application, on or near the premises in a place where the notice can conveniently be read by the public.
(5) Every notice under this paragraph which relates to premises shall identify the premises.
(6) Every notice under this paragraph which relates to a vehicle, vessel or stall shall specify where it is to be used as a sex shop.
(7) Subject to sub-paragraphs (5) and (6) above, a notice under this paragraph shall be in such form as the district or islands council may prescribe.
(8) An applicant for a licence under this Schedule which is to relate to premises shall, as soon as possible after the expiry of the period of 21 days referred to in sub-paragraph (4)
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above, submit to the district or islands council a certificate stating that he has complied with sub-paragraphs (4), (5) and (7) above.
(9) An applicant shall not be treated as having failed to comply with sub-paragraph (4) above if the notice was, without any fault or intention of his removed, obscured or defaced before the 21 days referred to in that sub-paragraph have elapsed, so long as he has taken reasonable steps for its protection and if need be, replacement; and if he has cause to rely on this sub-paragraph, his certificate under subparagraph (8) above shall state the relevant circumstances.
(10) Where—

(a) an applicant for a licence under this Schedule—

(i) fails to submit the certificate required by subparagraph (8) above;

(ii) in the circumstances referred to in subparagraph (9) above, has not, in the opinion of the district or islands council, taken reasonable steps for the protection or, as the case may require, replacement of the notice; or

(b) the district or island council is, at any time before they reach a final decision on an application which is in respect of premises, satisfied that the notice was not displayed in accordance with sub-paragraphs (4), (5) and (7) above, they may require the applicant to display the notice again for a period of 21 days beginning with such date as they may specify and the provisions of this paragraph shall apply in respect of such display as they apply in respect of display under sub-paragraph (4) above.

Objections and representations
8.—(1) The district or islands council shall, as soon as an application for the grant or renewal of a licence under this Schedule is made to them, send a copy of the application to the chief constable and to the fire authority.
(2) Any objection or representation relating to an application for the grant or renewal of a licence under this Schedule shall, subject to sub-paragraph (3) below, be entertained by the district or islands council if, but only if, the objection or representation—

(a) is in writing:

(b) specifies the grounds of the objection or, as the case may be, the nature of the representation;

(c) specifies the name and address of the person making it;

(d) is signed by him or on his behalf;

(e) was made to them within 28 days of whchever is the later or, as the case may be, latest of the following dates—

(i) the date of submission to them of the application;

(ii) the date when public adveritsement was first given under paragraph 7(2) above;

(iii) the date, if any, specified by the district or islands council under paragraph 7(10) above.

(3) Notwithstanding sub-paragraph (2)(e) above, it shall be competent for a district or islands council to entertain an objection or representation received by them before they take a final decision upon the application to which it relates if they are satisfied that there is sufficient reason why it was not made in the time required under that sub-paragraph.
(4) An objection or representation shall be made for the purposes of sub-paragraph (2) above if it is delivered by hand within the time there specified to the district or islands council or posted (by registered or recorded delivery post) so that in the normal course of post it might be expected to be delivered to them within that time.
(5) Where the district or islands council receive notice of a relevant objection or representation they shall, before considering the application, give notice in writing of the general terms of the objection or representation to the applicant but they shall not without the consent of the person making the objection or representation reveal his name or address to the applicant.
(6) In considering an application for the grant or renewal of a licence under this Schedule, a district or islands council may make such reasonable inquiries as they think fit and include the results of these inquiries in matters they take into account, but where they intend so to include any of these results they shall notify the applicant of that intention.
(7) A district or islands council may, before reaching a final decision upon such an application, give the applicant

99
and any person who has made a relevant objection or representation an opportunity to be heard by them.
(8) A district or islands council shall not reach a final decision upon such an application—

(a) in relation to which a relevant objection or representation has been made to them, or in relation to which they intend to take into account any result of their inquiries under sub-paragraph (6) above; and

(b) in respect of which they have not, under this paragraph, given the applicant and any person who has made such objection or representation an opportunity to be heard,

unless they have given the applicant an opportunity to notify them in writing of his views on such objection or representation or, as the case may be, result within such reasonable period (not being less than 7 days) as they may specify.
Disposal of applications for licences
9.—(1) Where an application for the grant or renewal of a licence under this Schedule has been made to a district or islands council they shall, in accordance with this paragraph—

(a) grant or renew the licence unconditionally;

(b) grant or renew the licence subject to conditions; or

(c) refuse to grant or renew the licence.

(2) The conditions referred to in sub-paragraph (1) above shall be such reasonable conditions as the district or islands council think fit and, without prejudice to that generality, may include conditions regulating—

(a) the hours of opening and closing of sex shops;

(b) displays or advertisements on or in such shops;

(c) the visibility of the interior of sex shops to passers by.

(3) A licence under this Schedule shall not be granted—

(a) to a person under the age of 18;

(b) to a person who is for the time being disqualified under paragraph 13(10) or 19(5) below;

(c) to a person other than a natural person if any director of it or partner in it or any other person responsible for its management is disqualified under paragraph 13(10) or 19(5) below;

(d) to a person who has been convicted of an offence under paragraphs 19 to 21 below;

(e) to a person who is not resident in the United Kingdom or was not so resident throughout the period of six months immediately preceding the date when the application was made:

(f) to a body corporate which is not incorporated in the United Kingdom;

(g) to a person who has, within the period of 12 months immediately preceding the date when the application was made, been refused by the same council the grant or renewal of a licence under this Schedule for the premises, vehicle, vessel or stall in respect of which the application is made, unless the refusal has been reversed on appeal; or

(h) to a person other than a natural person if any director of it or partner in it or any other person responsible for its management has, within that period, been refused by the same council the grant or renewal of such a licence, unless the refusal has been reversed on appeal.

(4) But without prejudice to sub-paragraph (3) above, the district or islands council shall refuse an application for the grant or renewal of a licence, if in their opinion, one or more of the grounds specified in sub-paragraph (5) below apply.
(5) The grounds mentioned in sub-paragraph (4) above are—

(a) that the applicant or, where the applicant is a person other than a natural person, any director of it or any partner in it or any person responsible for its management, is unsuitable to hold the licence by reason of having been convicted of an offence or for any other reason;

(b) that, if the licence were to be granted or renewed, the business to which it relates would be manged by or
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carried on for the benefit of a person, other than the applicant, who would be refused the grant or renewal of such a licence if he made the application himself;

(c) that the number of sex shops in the relevant locality at the time the application is made is equal to or exceeds the number which the district or islands council 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, vessel or stall in respect of which the application is made.

(6) Nil may be an appropriate number for the purposes of sub-paragraph (5)(c) above.
(7) In this paragraph "the relevant locality" means—

(a) in relation to premises, the locality where they are situated; and

(b) in relation to a vehicle, vessel or stall, any locality where it is desired to use it as a sex shop.

Notification of decisions and reasons
10.—(1) The district or islands council shall in accordance with sub-paragraph (2) below, notify their decision under paragraph 9(1) above to—

(a) the applicant;

(b) the chief constable;

(c) any person who made a relevant objection or representation in relation to the application; and

(d) the fire authority.

(2) Notification shall be made under sub-paragraph (1)(a), (b) or (d) above within 7 days of the decision to be notified by sending to the person concerned written notice of the decision and under sub-paragraph (1)(c) above either by so doing or by publishing within that time, in a newspaper circulating in the area of the district or islands council, notice of the decision.
(3) The district or islands council shall make out and deliver a licence to every person to whom a licence is granted or whose licence is renewed by the council, and shall when requested by any such person and on payment of such fee as they may charge under paragraph 18 below, make out a duplicate of any licence issued under this sub-paragraph and certify such duplicate to be a true copy of that original licence: and any document purporting to be so certified by the proper officer of the council shall be sufficient evidence of the terms of that licence.
Display of licences in sex shops
11. The holder of a licence under this Schedule shall keep exhibited in a suitable place to be specified in the licence a copy of the licence.
Duration of licences
12.—(1) Subject to and in accordance with the provisions of this paragraph, a licence shall come into force on being granted by the district or islands council or on such later date as they may specify as a condition of the licence and shall continue in force on being renewed by them.
(2) Subject to the provisions of this paragraph, a licence shall have effect—
(a) for a period of one year from the date when it comes into force: or
(b) for such shorter period as the district or islands council may decide at the time which they grant or renew the licence.
(3) If an application for the renewal of a licence is made before its expiry the existing licence shall continue to have effect until a final decision on the application is taken by the district or islands council.
(4) In the event of the death of the holder of a licence granted under this Schedule, the licence shall be deemed to have been granted to his executor and shall, unless previously revoked or surrendered, remain in force until the end of the period of 3 months beginning with the death and shall then

101
expire; but the district or islands council may from time to time, on the application of the executor, extend or further extend that period if they are satisfied that the extension is necessary for the purpose of winding up the deceased's estate and that no other circumstances make it undesirable.
(5) Where a relevant objection or representation has been made in relation to an application for the grant of a licence, that licence shall not come into force until—

(a) the time within which an appeal under paragraph 24 below against the grant of the licence may be made has elapsed; or

(b) where such an appeal has been lodged, it has been abandoned or determined in favour of the applicant.

(6) Notwithstanding that an application for renewal of a licence has been refused by a district or islands council, the existing licence shall continue in force until—

(a) the time within which an appeal under paragraph 24 below against the refusal to renew may be made has elapsed; or

(b) where such an appeal has been lodged, it has been abandoned or determined against the applicant, or, if determined in favour of the applicant, the time when the licence is renewed.

(7) This paragraph is subject to paragraphs 13, 15 and 16 below.
Revocation of licences
13.—(1) The district or islands council may at any time revoke a licence under this Schedule—

(a) if, at any time of revocation, it could not, under sub-paragraph (3) of paragraph 9 above, be granted;

(b) if, in their opinion, any of the grounds specified in sub-paragraph (5)(a) or (b) of that paragraph apply; or

(c) if a condition of the licence has been contravened.

(2) A district or islands council may revoke a licence under sub-paragraph (1)(c) above in respect of a contravention of a condition of a licence notwithstanding that there has been no conviction in that respect.
(3) In considering whether to revoke a licence the appropriate authority may make such reasonable inquiries as they think fit and, subject to sub-paragraph (4) below, include the results of their inquiries in the matters to which they have regard in such consideration.
(4) Where a district or islands council intend to include any of the results of their inquiries under sub-paragraph (3) above in the matters to which they have regard for the purposes of this paragraph, they shall notify the holder of the licence of that intention.
(5) A district or islands council, in considering whether or not to revoke a licence, may, but before deciding to revoke it, shall give—

(a) the holder of the licence;

(b) any person who has made a complaint relevant to the matters to be considered at the hearing;

(c) the chief constable; and

(d) the fire authority,

an opportunity to be heard by them.
(6) The district or islands council shall have complied with their duty under sub-paragraph (5) above if they have caused to be sent to the persons entitled under that subparagraph to an opportunity to be heard, not later than 21 days before the hearing, notice in writing that the council propose to hold a hearing, together with written notice of the general terms of the complaint and a note of the grounds upon which the revocation of the licence is to be considered and, where they decide to exercise their power under that sub-paragraph, they shall cause such notices and note to be sent to those persons not later than that time.
(7) Where a district or islands council decide to revoke a licence under this Schedule, the revocation shall not, subject to sub-paragraph (8) below take effect until the expiry of the time within which the holder of the licence may appeal under paragraph 24 below against the revocation or, if such an appeal has been lodged, until it has been abandoned or determined in favour of the revocation.
(8) If, in deciding to revoke a licence under this Schedule, a district or islands council determine that the circumstances of the case justify immediate revocation, they may, without prejudice to their other powers under this paragraph, order that the licence shall be revoked immediately.
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(9) A district or islands council shall within 7 days of their decision under sub-paragraph (1) above, send written notice of their decision to the persons referred to in sub-paragraphs (5)(a), (c) and (d) above in relation to the licence and to any person who, in pursuance of sub-paragraph (5)(b) above, was heard by the council before they reached that decision.
(10) Where a licence under this Schedule is revoked, its holder shall be disqualified from holding or obtaining such a licence in the area of the district or islands council which revoked it for a period of 12 months beginning with the date of revocation unless the revocation has been reversed on appeal.
Notification of changes of circumstances
14.—(1) Where there is a material change of circumstances affecting a holder of a licence under this Schedule or the business to which it relates, he shall, in accordance with this paragraph, notify the islands or district council of the change as soon as reasonably practicable after it has taken place.
(2) The holder of a licence under this Schedule shall not, unless in accordance with a requirement imposed by or in pursuance of any enactment other than this Schedule, make or cause to be made or permit there to be made any material change in the premises or, as the case may be, the vehicle, vessel or stall without the prior consent of the district or islands council.
(3) A notification under sub-paragraph (1) above or application for consent under sub-paragraph (2) above shall be accompanied by such fee as the district or islands council may charge under paragraph 18 below.
(4) A district or islands council, before considering whether or not to give their consent under sub-paragraph (2) above, shall be entitled to require the holder of the licence to furnish them with specifications, including plans, of the proposed changes.
(5) A district or islands council, before deciding whether or not to give their consent under sub-paragraph (2) above, shall consult the chief constable and, in the case of a change in premises, vehicle, vessel or stall, with the fire authority.
(6) Where the district or islands council have given their consent under sub-paragraph (2) above to a change in premises or a vehicle, vessel or stall it shall not be necessary for the holder of the licence relating to those premises or that vehicle, vessel or stall to notify the district or islands council of that change under sub-paragraph (1) above.
(7) A district or islands council shall, within 7 days of their decision under sub-paragraph (2) above, send written notice of their decision to the holder of the licence, the chief constable and the fire authority.
(8) In this paragraph, a "material change" includes any material change in the particulars given or referred to in the application for the grant, or, where the licence has been renewed, the most recent application for the renewal, of the licence.
Variation of licences
15.—(1) A district or islands council may, at any time, whether or not upon an application made to them by the holder of the licence, vary the terms of a licence on any grounds they think fit and such variation shall come into force on such date as they may specify.
(2) A district or islands council, before proceeding to vary the terms of a licence under sub-paragraph (1) above—
(a) shall, not later than 7 days before the day on which the proposed variation is to be considered, notify the holder of the licence, the chief constable and the fire authority of the proposed variation; and
(b) shall give each of the persons mentioned in subparagraph (a) above an opportunity to be heard by the council on that day.
(3) A district or islands council shall have complied with sub-paragraph (2)(b) above if they have invited each of the persons whom they must notify under that sub-paragraph to attend and to be heard by the council when the variation of the licence is to be considered.
(4) A variation in the terms of a licence shall come into force—
(a) when the time within which an appeal under paragraph 24 below may be made has elapsed; or

103
(b) where such an appeal has been lodged, when the appeal has been abandoned or determined in favour of the variation.
(5) A district or islands council shall, within 7 days of their decision under sub-paragraph (1) above, send written notice of their decision to the holder of the licence, the chief constable and the fire authority.
Surrender of licence
16.—(1) A holder of a licence may at any time surrender the licence to the district or islands council and it shall thereupon cease to have effect.
(2) A holder of a licence shall deliver the licence to the district or islands council—
(a) within 7 days after the coming into effect of a decision of a district or islands council under paragraph 13 above, to revoke or, under paragraph 15 above, to vary the terms of the licence or the decision of a court, under paragraph 19(5) below to revoke it;
(b) where the licence relates to a sex shop which he has ceased to use as such, within 7 days of such cessation.
(3) A district or islands council shall, on revoking or varying the terms of a licence, cause notice in writing to he given to the holder of the licence of his duty to deliver it up under sub-paragraph (2) above.
(4) Where a licence has been surrendered under this paragraph on its revocation under paragraph 13 or 19(5)(a) of this Schedule and the revocation is quashed or recalled, the district or islands council shall re-issue the licence.
17.—(1) A district or islands council shall cause to be kept a register of applications under this Section (in this paragraph referred to as "the register") and shall, as soon as reasonably practicable after—

(a) the receipt of each application, cause details of such receipt: and

(b) Their final decision on each application, cause details of that decision to be entered in the register.

(2) The register shall include—

(a) a note of the terms of each licence granted by the district or islands council;

(b) a note of any revocation or variation of the terms or surrender of a licence.

(3) The register shall be open to the inspection of any member of the public at such reasonable times and places as may be determined by the authority and any member of the public may make a copy thereof or an extract there from.
(4) A district or islands council may, on payment of such fee as they may charge under paragraph 18 below, issue a certified true copy of any entry in the register; and any document purporting to be certified by the proper officer of the council as a true copy of an entry shall be sufficient evidence of the terms of the original entry.
Fees
18.—(1) A district or islands council shall, subject to subparagraph (2) below

(a) in respect of applications made to them for the grant or renewal of a licence under this Schedule;

(b) in respect of their consideration of a material change in circumstances under paragraph 14 above and their disposal of the matter;

(c) in respect of applications made to them for the variation of a licence under this Schedule;

(d) in respect of the issue of certified duplicate licences under paragraph 10(3) above;

(e) in respect of the issue under paragraph 17 above of certified true copies;

charge such reasonable fees as they may, in accordance with sub-paragraph (2) below, determine; and the council may under this sub-paragraph determine different fees for the different matters specified in this sub-paragraph.
(2) In determining the amount of the different fees under sub-paragraph (1) above, the district or islands council shall seek to ensure that from time to time the total amount of fees receivable by the council is sufficient to meet the expenses of the council in exercising their functions under this Schedule.
Enforcement
19.—(1) A person who—

(a) without reasonable excuse uses any premises, vehicle, vessel or stall as a sex shop without having a licence under this Schedule for that use or there being in force a waiver under paragraph 5 above for that use or knowingly causes or permits the use of any premises,
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vehicle, vessel or stall as a sex shop without there being a licence for that use or there being in force a waiver under paragraph 5 above for that use; or

(b) being the holder of a licence for a sex shop, employs in the business of the sex shop any person known to him to be a person to whom under paragraph 9(3) above a licence could not be granted; or

(c) being the holder of a licence under this Schedule, without reasonable excuse knowingly contravenes, or without reasonable excuse knowingly permits the contravention of a term of condition specified in the licence; or

(d) being the servant, employee, or agent of the holder of a licence under this Schedule, without reasonable excuse knowingly contravenes, or without reasonable excuse knowingly permits the contravention of, a term or condition specified in the licence; or

(e) being the holder or a licence under this Schedule or the servant, employee or agent of such person, without reasonable excuse knowingly permits any person under the age of 18 to enter the sex shop:

shall be guilty of an offence.
(2) Any person who, in connection with an application for the grant or renewal of a licence under this Schedule, makes any statement which he knows to be false or recklessly makes any statement which is false in a material particular shall be guilty of an offence.
(3) A person guilty of an offence under sub-paragraph (1) or (2) above shall be liable on summary conviction, to a fine not exceeding £10.000.
(4) A person who, being the holder of a licence under this Schedule, fails without reasonable excuse to comply with—

(a) paragraph 11 or 16(2) above shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding £200;

(b) paragraph 14 above shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding f 1000.

(5) Where a holder of a licence under this Schedule is convicted of an offence under this paragraph or paragraph 20 or 21 below the court by which he is convicted may, in addition to any other penalty which the court may impose, make an order in accordance with one or both of the following paragraphs—

(a) that the licence shall be revoked;

(b) that the holder of the licence shall be disqualified from holding such a licence in Scotland for a period not exceeding 5 years.

(6) A person may appeal against an order under subparagraph (5) above in the same manner as against sentence and the court which made the order may, pending the appeal, suspend the effect of the order.
(7) A person may, at any time after the expiry of the first year of his disqualification under sub-paragraph (5) above, apply to the court which ordered the disqualification to remove it, and, on such application, the court may by order remove the disqualification as from such date as may be specified in the order or refuse the application, and, in either case, may order the applicant to pay the whole or any part of the expenses of such application.
(8) Where the holder of a licence under this Schedule is convicted of an offence under this paragraph or paragraph 20 or 21 below, an extract of such conviction and sentence (if any) shall, within 6 days after the date of the conviction, be transmitted by the clerk of the court to the district or islands council which granted the licence.
Rights of entry and inspection
20.—(1) Without prejudice to any other provision of this Schedule an authorised officer of the district or islands council or the fire authority or a constable may, for the purposes specified in sub-paragraph (2) below, at any reasonable time enter and inspect any premises, vehicle, vessel or stall in relation to which a licence under this Schedule is in force or has been applied for.
(2) The purposes referred to in sub-paragraph (1) above are—

(a) where a licence is in force—

(i) seeing whether the terms of the licence are being complied with and, if they are not, obtaining information in respect of such non-compliance;

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(ii) obtaining information relevant to the question whether the licence should be renewed;

(iii) seeing whether paragraph 11 above is being complied with;

(iv) ascertaining whether any person is being employed contrary to paragraph 19(1) above or whether any person under the age of 18 has been permitted to enter the sex shop contrary to that paragraph; or

(b) where the grant of a licence has been applied for, obtaining information relevant to the question whether the application should be granted.

(3) An authorised officer of district or islands council or the fire authority shall not be entitled to exercise the powers which he may exercise under sub-paragraph (1) above until he has produced his authorisation to the person for the time being in charge of the premises, vehicle, vessel or stall.
(4) A constable who is not in uniform shall not he entitled to exercise the powers which he may exercise under subparagraph (1) above until he has produced his identification to the person for the time being in charge of the premises, vehicle, vessel or stall.
(5) Any person in charge of any premises, vehicle, vessel or stall who fails without reasonable excuse, to permit a constable or an authorised officer of the district or islands council or the fire authority who, in pursuance of this paragraph, demands to do so to enter or inspect the premises, vehicle, vessel or stall or obstructs the entry thereto of a constable or such an officer in pursuance of this paragraph shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding £200.
Powers of entry and search
21.—(1) If a justice of the peace or sheriff is satisfied by evidence on oath that there is reasonable ground for suspecting that—
(a) any premises, vehicle, vessel or stall is being used as a sex shop; and
(b) no licence or waiver under this Schedule is in force in relation to the sex shop.
he may grant a warrant authorising any constable to enter and search the premises, vehicle, vessel or stall specified in the warrant.
(2) A constable may use reasonable force in executing a warrant granted under sub-paragraph (1) above.
(3) A constable who is not in uniform shall produce his identification if required to do so by any person in or upon any premises, vehicle, vessel or stall which the constable is about to enter, is entering or has entered under the powers conferred under sub-paragraph (1) above, and if he has been so required to produce his identification, he shall not be entitled to enter or search the premises, vehicle, vessel or stall or, as the case may be, remain there or continue to search the premises, vehicle, vessel or stall until he has produced it.
(4) Any person who fails without reasonable excuse to permit a constable, in pursuance of this paragraph, to enter and search any premises, vehicle, vessel or stall or who obstructs the entry thereto or search thereof in pursuance of this paragraph by a constable shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding £200.
Sending of notice by post
22. When a district or islands council sends by post for the purposes of paragraphs 10(2), 13(9), 14(7), or 15(5), written notice of its decision, it shall be treated as having been sent within the time required if it was posted so that in the normal course of post it might be expected to he delivered to the person concerned within that time.
Notification of decisions and giving of reasons
23.—(1) A district or islands council shall, within 10 days of being required to do so under sub-paragraph (2) below, give reasons in writing for arriving at any decision of theirs under this Schedule—

(a) to grant or renew a licence under this Schedule or to refuse to do so;

(b) to revoke a licence under this Schedule or not to revoke it;

(c) to consent or to refuse to consent to a material change in any premises, vehicle, vessel or stall;

(d) to vary or to refuse to vary the terms of a licence under this Schedule.

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(2) Reasons for a decision referred to in sub-paragraph (1) above shall be given by the district or islands council on a request being made to the council by a relevant person within 28 days of the date of the decision.
(3) Nothing in this paragraph affects the power of the sheriff under paragraph 24 below to require a district or islands council to give reasons for a decision of the council—

(a) which is being appealed to the sheriff under that paragraph; and

(b) for which reasons have not been given under this paragraph.

(4) In this paragraph. "relevant person" means—

(a) in respect of a decision specified in sub-paragraph (1)(a) above, the applicant or any person who made a relevant objection or representation (within the meaning of paragraph 3 above) in relation to the application to which the decision relates;

(b) in respect of a decision specified in sub-paragraph (1)(b) to (d) above, the holder of the licence, the chief constable or the fire authority; and

(c) in respect of a decision specified in sub-paragraph (1)(b) above, any person who in pursuance of paragraph 13(5)(b) above was heard by the council.

Appeals
24.—(1) Subject to sub-paragraph (2) below, a person who may, under this Schedule, require a district or islands council to give him reasons for their decision may appeal to the sheriff against that decision.
(2) A person—

(a) shall be entitled to appeal under this paragraph only if he has followed all such procedures under this Schedule for stating his case to the district or islands council as have been made available to him:

(b) shall not he entitled to appeal under this paragraph if his application for the grant or renewal of a licence under this Schedule has been refused on either of the grounds specified in paragraph 9(5)(c) or (d) above.

(3) A district or islands council may be a party to an appeal under this paragraph.
(4) An appeal under this paragraph shall he made by way of summary application and shall he lodged with the sheriff clerk within 28 days from the date of the decision appealed against.
(5) On good cause being shown, the sheriff may hear an appeal under this paragraph notwithstanding that it was not lodged within the time mentioned in sub-paragraph (4) above.
(6) For the purposes of an appeal under this paragraph, the sheriff may, in the case of a decision of a district or islands council for which reasons have not been given by the council under paragraph 23 above, require the council to give reasons for that decision, and the council shall comply with such a requirement.
(7) The sheriff may uphold an appeal under this paragraph only if he considers that the district or islands council, in arriving at their decision—

(a) erred in law;

(b) based their decision on any incorrect material fact;

(c) acted contrary to natural justice; or

(d) exercised their discretion in an unreasonable manner.

(8) In considering an appeal under this paragraph, the sheriff, may hear evidence by or on behalf of any party to the appeal.
(9) On upholding an appeal under this paragraph, the sheriff may—

(a) remit the case with the reasons for his decision to the district or islands council for reconsideration of their decision; or

(b) reverse or modify the decision of the council, and in remitting a case under sub-sub-paragraph (a) above, the sheriff may—

(i) specify a date by which the reconsideration by the council must take place;

(ii) modify any procedural steps which otherwise would be required in relation to the matter by or under any enactment (including this Act).

(10) In considering an appeal under this paragraph against revocation under paragraph 13(8) above of a licence the sheriff may, pending his decision on the appeal, postpone the

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taking effect of that revocation but he shall not so postpone unless he is satisfied that all steps which in the circumstances were reasonable have been taken with a view to securing that notice of the appeal and an opportunity of being heard with respect to it have been given to the council.
(11) The sheriff may include in his decision on an appeal under this paragraph such order as to the expenses of the appeal as he thinks proper.
(12) Any party to an appeal to the sheriff under this paragraph may appeal on a point of law from the sheriff's decision to the Court of Session within 28 days from the date of that decision.
Provisions relating to existing premises
25.—(1) Without prejudice to any enactment other than this Schedule it shall be lawful for any person who—

(a) immediately before the date of publication as required by section (Control of sex shops) of this Act was using any premises, vehicle, vessel or stall as a sex shop; and

(b) had before the appointed day duly applied to the district or islands council for a licence for the premises, vehicle, vessel or stall under this Schedule

to continue to use the premises, vehicle, vessel or stall as a sex shop until

(i) the time within which an appeal under paragraph 24 above against any refusal by the district or islands council of his application has elapsed; or

(ii) where such an appeal has been lodged, it has been abandoned or determined against him.

(2) In this paragraph "the appointed day", in relation to any area, means the day specified in the resolution passed under section (Control of sex shops) of this Act as the date upon which this Schedule comes into effect in that area.
(3) A district or islands council shall not, before the appointed day, consider any application for the grant of a licence under this Schedule made before the appointed day and shall not grant any such application until they have considered all such applications.").
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 305 to 360. They are all consequential.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENT
361 Schedule 2, page 103, line 43, at end insert
("The Firearms Act 1968 (c.27)
In Schedule 2 to the Firearms Act 1968 (offences to which sections 17(2) and 18 apply in Scotland) for paragraphs 14 and 15 there shall be substituted the following paragraph
"13A. Offences against section 60 of the Civic Government (Scotland) Act 1982.".").
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 361. It is not very suitable for Commons Amendments Nos. 361 to 363 to be taken en bloc. Sections 17(2) and 18 of the Firearms Act 1968 provide that a person is guilty of an offence (punishable with a maximum penalty of 14 years' imprisonment and an unlimited fine) if he has in his possession a firearm with intent to commit an offence specified in Schedule 2 to that Act or if at the time of his committing or being arrested for such an offence he has a firearm in his possession.
Among the offences listed in Schedule 2 to the 1968 Act to which Sections 17(2) and 18 apply are offences against Section 4 of the Vagrancy Act 1824 and against the third and fourth paragraphs of Section 7 of the Prevention of Crime Act 1871. Section 4 of the
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1824 Act and Section 7 of the 1871 Act cover, inter alia, such offences as loitering with intent, being on enclosed premises with intent to commit theft, and so on. Both sections are being repealed by the Bill. The loitering with intent provision is not being replaced, but Clause 60 of the Bill re-enacts, in modern form, the offence of being on a building with intent to commit theft. We believe that Sections 17(2) and 18 of the 1968 Act should continue to apply to this offence and the amendment is therefore designed to delete the references to Section 4 of the Vagrancy Act and Section 7 of the Prevention of Crime Act in Schedule 2 to the Firearms Act and insert a reference to Clause 60 of the Bill. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENT
362 Page 103, line 43, at end insert—
("The Breeding of Dogs Act 1973 (c.60)
In the Breeding of Dogs Act 1973—
(a) after the word "breeding" in each place where it occurs, except in sections 5(2), 6 and 7, there shall be inserted the words "or rearing";
(b) in section 5(2) (interpretation), for the definition of "breeding establishment" there shall be substituted the following definition—
"'breeding or rearing establishment' means any premises (including a private dwelling) where more than two bitches are kept for the purposes of breeding for sale or where a business of rearing puppies for sale is carried on"; and
(c) in section (6) (transitional), after the word "Act", where secondly occurring, there shall be inserted the words "or the date when it first applied to the rearing of puppies" and after the word "breeding" there shall be inserted the words "or, as the case may be rearing.".").
The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 362.
This amendment extends the Breeding of Dogs Act 1973 to cover puppy farms (so your Lordships will see why it was totally inappropriate to be taken with the last amendment); that is, premises where puppies bred elsewhere are bought in and reared for commercial sale. It closes the major loophole in the Breeding of Dogs Act identified by the Working Party on Dogs 1976 and was suggested to the Government by the convention as a possible minor amendment to this Bill. The clause will not, of course, apply to purely domestic breeding because it is tied specifically to premises where a "business" of rearing puppies is carried on. It thus ensures that they will be subject to the same powers of inspection as orthodox breeding establishments have been subject to since 1973.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENT
363 Page 103, line 43, at end insert
("The Housing (Scotland) Act 1974 (c. 45)
In section 10A of the Housing (Scotland) Act 1974 (repairs grant), after subsection (5) there shall be added the following subsection
"(6) References in this section to a house shall, in relation to an application made under this section for a

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grant in respect of works which are to rectify defects specified in a notice under section 24(1) of the Housing (Scotland) Act 1969, be construed as including references to premises other than a house; but where such an application relates to such premises—

(a) the local authority shall not, under subsection (2) above, approve the application unless they are satisfied that the premises form part of a building which contains a house or houses and that house or, as the case may be, all these houses will provide satisfactory housing accommodation as mentioned in that subsection;

(b) subsection (4) above shall be construed as if the reference in it to each house were a reference to each of the premises other than a house; and

(c) subsection (5) above shall be construed as if the enactments excepted by that subsection included sections 3(2) to (5), 9(1), (2), (6), (8) and (9) and 10 of this Act.".).

The Earl of Mansfield: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 363. The amendment is designed to rectify an anomaly in the repairs grant scheme which has given cause for concern over a number of years and which has arisen as a result of minor differences in the definitions of the word "house" in existing legislation.
At present while local authorities are empowered to require proprietors of both residential and non-residential premises within a tenement building which is considered to be in a state of serious disrepair to carry out such repair work as they consider necessary, only the proprietors of the residential premises are eligible for consideration for grant assistance towards their shares of the cost of the work. Representations against the absence of powers in relation to the payment of grant to commercial proprietors led to the commissioning towards the end of last year of a research project designed to establish the extent of the problem. The consultants' report, which carries a clear recommendation for grants to be made available to these proprietors, was published on 5th October.
In moving this amendment I should draw your Lordships' attention to the fact that the amendment is incorrectly printed. The words "or houses" at the beginning of the fifth line in the new subsection (6)(a) (as printed in the list of amendments) are redundant and have been introduced by a printer's error. I would therefore ask your Lordships when agreeing to this amendment to agree to it without these intrusive words. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Mansfield.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
364 Schedule 3, page 105, leave out lines 2 to 5.
365 In the Title, line 4, after ("crime;") insert ("for prohibiting the taking of and dealing with indecent photographs of children:").
The Earl of Mansfield: My lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 364 and 365. These are both consequential.
Moved, That this House doth agree with the Commons in the said amendments.—(The Earl of Mansfield.)
On Question, Motion agreed to.

Business
Lord Sandys: My Lords, before the adjournment of the House, it may be for the convenience of your Lordships if I announce that, in view of the amount of business before the House tomorrow, it has just been agreed that dinner will be available tomorrow at the usual time.
County of Lancashire Bill [H.L.]
Reported from the Select Committee on opposed provisions with amendments; a special report was made and ordered to be printed.

British Transport Docks Bill
Brought from the Commons, read a first time and referred to the Examiners.
House adjourned at fourteen minutes past seven o'clock.