Lords Sitting of 12 July 1983

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.
Several Lords—Took the Oath or Affirmed.

Local Government Independence
Lord Molloy: My Lords, I beg leave to ask the first Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will take steps to prevent the erosion of the independence of local authorities by central Government.
The Minister of State, Department of the Environment (Lord Bellwin): My Lords, the independence of local government resides in its freedom to make decisions within the framework laid down by Parliament. Our present arrangements rest on the assumption that local authorities will have regard to long-standing conventions relating to national spending and other policies.
Lord Molloy: My Lords, I am grateful to the Minister for that reply. Is he aware—as he surely must he—that there is genuine concern throughout all branches of local government, associations as well as local councils, that some of the action taken and anticipated by the Government is redolent of authoritarian Government rather than democratic Government? Will he agree that the Government should think again about some of the things that they have in mind for exercising such severe control over democratically elected bodies in British local government?
Lord Bellwin: My Lords, yes, I am aware of the concern to which the noble Lord refers. But it has always been recognised that the Government have a legitimate interest in the level of local government spending as a whole. Furthermore, in many areas ratepayers are a relatively small minority of those eligible to vote in local authority elections. Indeed, business ratepayers as such have no vote at all. So our proposals for rate reform will include steps to improve the accountability of local authorities to those who shoulder the burden.
Viscount Massereene and Ferrard: My Lords, will my noble friend not agree that some local authorities, particularly Labour, have used their independence to squander ratepayers' money in a disgraceful manner? May I point out such an absurdity as Lambeth which appointed, I understand, a Poet Laureate?
Lord Bellwin: My Lords, one could have a long debate and give many instances that are a matter for concern but I do not think, in answering the original Question, that I would wish you to do so today.
Lord Underhill: My Lords, would not the Minister agree that one has to take account of the wishes of the electors in a particular area and that they should not be insulted for wanting certain decisions made on behalf of their area? Is the Minister aware that some of the projected legislation is being strongly criticised by the local authority associations? Will the Government have discussions with the associations not about how to introduce legislation but whether it is desirable?
Lord Bellwin: My Lords, the Government have come to the conclusion that the proposed legislation is not merely desirable, it is absolutely essential. On the issue of discussions and consultations, I confirm that we intend to have the broadest and most detailed consultation, perhaps more than ever before, on this matter.
Lord Nugent of Guildford: My Lords, is my noble friend aware that a basic principle of democratic Government is grievance before supply? That is a rule which the noble Lord, Lord Molloy, with his long and interesting history in the other place, will be well aware of. Is my noble friend aware that in all too many local authorities today the councils concerned seem unaware of the strength of grievance among those in the business community who are loaded with excessively high rates which are crippling their businesses and to which the local councils seem absolutely indifferent? Is my noble friend further aware that it is these business interests that look to central Government to give them some protection against the mulcting that they are suffering at the hands of their local authorities? Is my noble friend therefore aware that he is fully justified in the legislative action that he proposes to take?
Lord Bellwin: My Lords, I thank my noble friend for those observations with which I concur entirely. It is some of the situations that he has described that have inevitably led the Government to their proposed course.
Lord Jenkins of Putney: My Lords, is the noble Lord aware that, irrespective of parties, successive Governments in recent years have gradually whittled away the powers of local government so that our local government has fewer powers than almost any municipality in Europe or in the United States? Is he aware that if the Government persist in this course, local government will virtually become a nonentity? Will the Government not think again? They are proceeding in the wrong direction and should change their minds.
Lord Bellwin: My Lords, I would be more impressed by the noble Lord's concern for the independence of local government if I heard him speaking out about the many anti-democratic actions and abuses of basic local government freedoms that are taking place at the present time. It has to be said that it is irresponsible actions and the seeming inability of local government as a whole to do anything to curb them which have made it inevitable that the Government must act to protect ratepayers and their own macro-economic policies.
Lord Renton: My Lords, is my noble friend aware that some local authorities have whittled away their own responsibilities and powers with regard to the protection of their ratepayers and that they have done so by declaring so-called nuclear free zones, thereby exempting themselves from the responsibilities placed upon them by Parliament?
Lord Bellwin: My Lords, my noble friend highlights one of the many steps taken by local government which in the past would never have been considered as having anything to do with local government.
Lord Beaumont of Whitley: My Lords, would not the true cure for the irresponsible actions of which the Minister speaks he to introduce a method of election that would return councils that represent the voters?
Lord Bellwin: My Lords, I do not think that such a method would have any more beneficial effect in this country than it has when it pertains in other countries.
Lord Leatherland: My Lords, would the noble Lord agree that if in a certain district the councillors increased the rates, they themselves, as residents in that district, would have to pay those higher rates? Is that not a tribute to the virtue of councillors?
Lord Bellwin: My Lords. I said when answering the original question that one of the shortcomings is the fact that the number of people eligible to vote often does not bear relationship to those who in fact are paying the rates. Everyone would vote for everything if they did not have to pay anything towards it.
Baroness Gardner of Parkes: My Lords, in the original Answer which the Minister gave he said that local government which followed Government guidelines would have its own rights and controls and not have its independence diminished. Is he aware that as regards the guidelines laid down not only by the last Government but by a previous Government those local authorities who followed the guidelines and who did curtail their expenditure were disadvantaged as opposed to those who did not curb their exenditure in any way and who then found that later they had much more fat to cut than the good councils who were penalised much more? Will he take that into account when he starts to rearrange finances at a later date?
Lord Bellwin: My Lords, I am sympathetic to the point that my noble friend raises. However, I think that the facts, when carefully analysed, would show that the situation is not as she has said. There is always a difficult situation when one comes to distribute grant and decide on levels of penalties, should those be necessary. I shall certainly bear in mind anything that anyone says that will make the proposed legislation better and as good as it can be.
Lord Molloy: My Lords, is the noble Minister aware that I completely appreciate some of the submissions which he made in his replies and a great deal of those made by the noble Lord, Lord Nugent of Guildford? I first became aware of them from Conservative circles in 1952 when I entered local government, and I have been aware of them ever since. Would the noble Lord
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be prepared to consider that the complaints and apprehensions are not confined to one side of any particular council chamber in our land?—they are shared by Conservative majority groups and Labour minority groups and vice versa. If they do things that are wrong—
Noble Lords: Question!
Lord Molloy: My Lords, is the noble Lord not aware that those things will involve the district auditor? We are becoming very concerned that there is unneccessary interference with British local government.
Noble Lords: Order!
Lord Bellwin: My Lords, it is very difficult to answer the last part of what the noble Lord said because I could not hear it. However, I think I understand the gist of what he was saying. I repeat what I said originally: that I know the concern to which he refers. We will take that into account as we come to the very broad consultations which we intend to have.
Lord Leatherland: My Lords, in view of the prosperity of agriculture, will the Government consider whether agriculture—which enjoys preferential rates at the moment—should have its rates raised to the level of ordinary industrial rates?
Lord Bellwin: My Lords, I must confess that I did not follow the question too well.

Monopolies and Mergers: References to Commission
2.46 p.m.
Lord Taylor of Gryfe: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will make a statement on the general rules to be observed in references to the Monopolies and Mergers Commission in connection with the takeover of companies.
Lord Lyell: My Lords, the Secretary of State may refer to the Monopolies and Mergers Commission where it appears to him to involve more than £15 million of assets taken over or the creation or enhancement of a market share of a quarter or more. In deciding whether to make a reference, he takes account of the advice of the Director General of Fair Trading. The Government regard the present legislative arrangements as generally satisfactory but have not reached a definitive view on all its aspects.
Lord Taylor of Gryfe: My Lords. I thank the Minister for his Answer. In view of the fact that he said that the Minister takes account of the advice of the Office of Fair Trading, will he tell the House how often the Minister has departed from the recommendations of the Office of Fair Trading in the past five years? Secondly, would he agree that the financial press in

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this country has expressed its alarm at the apparent inconsistencies in references to the Monopolies and Mergers Commission by Ministers? Would he agree that in order to build up appropriate case law and consistency in these decisions it might be desirable for the Minister to declare the reasons for his reference in each case?
Lord Lyell: My Lords, as regards the noble Lord's last supplementary question, I would not necessarily agree with him but would ask him to wait and see. As regards the noble Lord's second question, I would point out that all of us read the financial press and alas, there is a major gap in the financial press at present. Your Lordships would agree that the financial press is a forum for free comment. I cannot answer the noble Lord's first supplementary question, but I will attempt to discover some detail and write to him.
Lord Shinwell: My Lords, why does the noble Lord not admit that there is no such thing as a general rule in these matters? Judging by recent incidents in which some members of the previous Cabinet were involved, it is left to the discretion of Ministers.
Lord Lyell: My Lords, in general, yes, this matter is left to the discretion of Ministers; but at the same time competition is the main guiding principle by which those Ministers take their decisions.
Lord Harmar-Nicholls: My Lords, is my noble friend aware that there are very good practical reasons why the discretion should be left to the Minister? Is he not aware that one of the problems in parliamentary government is that we produce words which become firm and fixed upon which, in this case, the Office of Fair Trading has to operate hut which, by the very nature of things, cannot always take into account all the surrounding circumstances, whereas the Minister can do that; and that to that extent one is likely to get justice from the Minister's discretion rather than from the rigid parliamentary word as laid down in the Act itself?
Lord Lyell: My Lords, I am very grateful to my noble friend. Indeed, I take his point. But I would stress that the public interest test has to be viewed in the context of the discretionary system which we have and, of course, the strengths of the discretionary system should not be underestimated. As regards my noble friend's views on the legislation, if he can make a good deal of sense of Section 84 of the Fair Trading Act 1973 I should be very grateful for lessons from him after Question Time.
Lord Bruce of Donington: My Lords, the noble Lord was kind enough to indicate that the Government have not yet reached a definitive view on certain aspects of this matter. Would he be kind enough to tell the House of the likely time-span which will have to elapse before the Government arrive at a definitive view? Will he undertake to the House that as and when these mills of wisdom have ground to produce the ultimate result they will be communicated forthwith to the House?
Lord Lyell: My Lords, the answer to the noble Lord's first question is, "No". The answer to the noble Lord's second question is that both he and I know that these mills of wisdom grind exceedingly slow, in many cases thanks to the profession to which both he and I belong.
Viscount Eccles: My Lords, will my noble friend give us just one reason why an American bid for Sotheby's should be referred to the Monopolies Commission?
Lord Lyell: My Lords, I am very grateful to my noble friend for his interesting question, but he will not have long to wait. If he can wait until about November, then he and I and your Lordships will be able to read the report; but I believe that your Lordships would wish that until the report is published we should reserve comment, because all the details are still being considered.
Lord Taylor of Gryfe: My Lords, when the Minister ultimately declares his policy, will there be some attempt to establish some consistency in decisions? Foreign investors, in particular, who do not understand the idiosyncrasies of these references, find it extremely difficult to operate in London, where there is no body of consistent decision-making available to them.
Lord Lyell: My Lords, we will carefully note the comments and the interesting experience of the noble Lord, but I would again stress to him and to your Lordships that the main guiding principle in decisions of this nature is the aspect of competition.
Lord Diamond: My Lords, if the Minister is to continue to use a great deal of discretion, then the business community will not know where it stands. Is it not in the best interests of all the companies concerned that they should be able to judge on the basis of past experience what is likely to happen in their individual cases? Would the Minister consider following the precedent of the Inland Revenue, where, if there is a similar possibility of considerable delay in a decision on tax liablity affecting a proposal which might otherwise not be pursued, then as the Minister is very fully aware, under certain circumstances the Inland Revenue are prepared to give information in advance so that the proposal can either be followed or otherwise? Would the Minister consider whether that might not help the business community, which we are all committed to assist if we can?
Lord Lyell: My Lords, on the second question asked by the noble Lord, I am sure that he and, indeed, your Lordships will be aware that the example he quoted is, to a very large degree, different from the Question on the Order Paper concerning monopolies, mergers and competition. As regards the principles, about which the noble Lord was inquiring, perhaps he will find at least the guidelines concerning the legislation in the Fair Trading Act 1973, especially in Section 84.

Iranian Embassy: Building Repairs
2.55 p.m.
The Earl of Kinnoull: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether the former Iranian Embassy in Prince's Gate is still in a dangerous condition and whether a repairs notice will he served.
Lord Skelmersdale: My Lords, the building is still in a potentially dangerous condition, but Westminster City Council have shored it up with temporary scaffolding. The council have not served a repairs notice: they arc awaiting detailed proposals from the Government of Iran for the reconstruction of the building.
The Earl of Kinnoull: My Lords, may I thank my noble friend for that reply. Is he aware that Westminster City Council should be congratulated on their responsible action on carrying out the repair work to these premises? Is he able to say whether they obtained permission from the Embassy to enter upon the premises; and, secondly, have they recovered the costs? Thirdly, is my noble friend able to say whether the Government have ultimate powers to acquire the premises if the Iranian Embassy continues to flout its responsibilities under our planning laws?
Lord Skelmersdale: My Lords, I agree that Westminster City Council should be commended on their prompt action in this matter. A dangerous structure notice was served by the district surveyor after the unfortunate incidents in 1980. The Iranian Government chose to ignore it and so the city council went in and erected the scaffolding. I understand—although this is subject to confirmation—that permission was neither sought nor obtained. As regards my noble friend's last supplementary question, I am not sure that this would be the appropriate action to take as of course there is something of an analogous situation with British Government property in Iran at the moment.
Lord Sandys: My Lords, while I hope my noble friend will agree that Westminster City Council are to be highly commended in their prompt action, may I ask whether there would be a possibility of exercising call-in powers by the Secretary of State for the Environment if the matter becomes too prolonged and difficult?
Lord Skelmersdale: My Lords, I accept that on the face of it this might be regarded as an ultimate sanction. Of course, the Section 101 notice could require the Iranians to carry out basic minimum repairs or alternatively a Section 115 notice could require more extensive repairs. But in that event the only sanction would be compulsory purchase. But given the vulnerability of our diplomatic compound in Tehran to which I have already referred, the sensitivity of diplomatic relations and the United Kingdom's counter-claim of damage to the Tehran Embassy,
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repairs notice action would seem inappropriate and possibly also counter-productive.
Baroness Birk: My Lords, while appreciating the delicacy of the negotiations, may I ask whether the Minister is aware that I know there have always been great problems regarding actions—not necessarily of this sort—in dealing with foreign embassies? Can he say to what extent progress has been made by the FCO with Iran and what further pressures can be brought to bear? Is it not true—and I think that the Minister has said so—that if it were not an embassy a repairs notice could certainly have been served? Although I appreciate the problems, we should like to be more satisfied that some action is being taken. If they ignore this, what action will be taken in the future?
Lord Skelmersdale: My Lords, that of course is a hypothetical question. There is no dramatic need for action to render the building safe or anything else until it becomes distinctly unsafe which, as I said in my original Answer, has not yet occurred. However, I take the noble Baroness's point. If it were not a diplomatic immunity situation there would be recourse to the courts: but regretfully that avenue is not open to the Government.
Baroness Ewart-Biggs: My Lords, does the Minister agree that as we are talking about the safety of one building it would not be straying too far from the point to inquire after the health of the old Kensington Town Hall?
Lord Skelmersdale: My Lords, as I remember I answered a Question at some length on the Kensington Town Hall within the past three months or so, and I refer the noble Baroness to the answers I gave then.

Job Creation
3 p.m.
Lord Molloy: My Lords, I beg leave to ask the second Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will consider establishing a Job Creation Commission drawn from the TUC, CBI, universities, and Britain's learned societies.
The Minister of State, Privy Council Office, and Minister for the Arts (The Earl of Gowrie): No, my Lords. An additional Job Creation Commission would add nothing to the work of the Manpower Services Commission, would create no jobs directly, and by adding to public spending would damage employment levels in other ways.
Lord Molloy: My Lords, is the noble Earl aware that the primary organisation in damaging job levels are the Government, who have created this unemployment? Would he not consider that the reply he has given to the House, a cursory No, to examining the problem of unemployment of millions of our fellow-Britons is a little savage? Would the noble Earl agree

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that perhaps members of the TUC, the CBI, and our universities might he able to help the Government to get over the problem which they have created and which has inflicted so much misery on many of our fellow-Britons as well as damage on the economy of Great Britain?
The Earl of Gowrie: My Lords, on the noble Lord's first supplementary about the responsibility of the Government, he is certainly entitled to his views, but a very substantial majority of his fellow-countrymen appear to disagree with him. On the second point, I refer him back to the original Answer. The idea that the Government are short of advice in tackling this deep anxiety of high levels of unemployment, at a time when whole industries are engaged in major change throughout the Western world, is absurd. We are in touch with every level of advice, including advice in your Lordships' House. I am confident in the Manpower Services Commission in its efforts to ease people through this transitional period. As for permanent job prospects, that must of course depend on an upturn in world trade and our competitive response to that upturn.
Lord Rochester: My Lords, would the noble Earl agree that the way to solve complex problems like unemployment is not to set up more and more commissions but to join in making use of those that already exist, particularly since in the case of the Manpower Services Commission it is already representative of employers, trade unions, and education?
The Earl of Gowrie: My Lords, I wholeheartedly agree with the noble Lord, and I am most grateful to him for his intervention.
Viscount Massereene and Ferrard: My Lords, would my noble friend agree that the trade unions are, to a certain extent, responsible for the present unemployment, because over many years they have had restrictive practices and have forced wages up far above economic productivity? Is my noble friend aware that that has given us some of the lowest productivity in Western Europe? Is he aware therefore that the trade unions are, to a great extent, responsible for the present rate of unemployment?
The Earl of Gowrie: My Lords, I certainly agree with my noble friend that if in the short term you seek to preserve jobs against competitive tendencies in a given industry you will lose more later on, not only through the collapse of the industry but through the collapse of wealth generated thereby. The Government need no advice from anyone on the importance of lowering wage claims in maintaining employment levels. We are very aware of it indeed.
Lord Molloy: My Lords, is the noble Earl aware of a point that I have made often in your Lordships' House, that when this problem first arose in the early 1930s it savagely smote the United States of America and then our country and great parts of Europe? All sorts of organisations were extant which have been quoted today—the examples from the Liberal Benches—and their contribution was nil. It was when Franklin Delano Roosevelt then called together—
Noble Lords: Speech!
Lord Molloy: Is the noble Earl aware that, when the President of the United States of America then called together almost the equivalent of what I am suggesting, the first signs of overcoming this horrible economic disease became apparent and ultimately it was conquered? Is it not at least worth considering?
The Earl of Gowrie: My Lords, it is certainly the case that international co-operation in coming out of recession is most valuable, and certainly my right honourable friend the Prime Minister is aware of the importance of her participation in international councils of that kind. However, in other respects I am afraid I cannot agree that conditions nowadays are comparable to those of the early 1930s.
Lord Montagu of Beaulieu: My Lords, is my noble friend aware that those of us who have had direct connection with the Manpower Services Commission have nothing but admiration for what it is doing? In particular, those young people who are employed get enormously important experience, and often jobs at the end. We should do more to support the Manpower Services Commission for doing a good job.
The Earl of Gowrie: My Lords, I am aware from personal experience of the support that my noble friend himself gives to the Manpower Services Commission and I would urge comparable support on the rest of your Lordships. It is a great help indeed.

Business
Lord Denham: My Lords, at a convenient moment after 3.30 this afternoon my noble friend Lord Gowrie will, with the leave of the House, repeat a Statement that is to be made in another place on Proposals for Democracy in Trade Unions.
It may be for the convenience of your Lordships if I announce that dinner will be available this evening at the usual time of 7.30 p.m.

Local Authorities (Expenditure Powers) Bill
The Bill, having been brought from the Commons on Friday last and printed pursuant to Standing Order 47, was read a first time.

Staffordshire Bill [H.L.]
3.7. p.m.
The Deputy Chairman of Committees (The Earl of Listowel): My Lords, on behalf of my noble friend the Chairman of Committees, I beg to move that this Bill be now read a third time.
Moved, That the Bill be now read a third time.—(The Earl of Listowel)
The Earl of Shrewsbury: My Lords, I welcome the opportunity of speaking on the Third Reading of the Staffordshire Bill as it was I who requested that your

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Lordships considered my proposal of an Instruction to the Committee in order to safeguard the interests of the Stafford market traders. I shall be as brief as possible and shall not delay the House a moment longer than is absolutely necessary. I was most heartened to note from the report that the Select Committee felt it necessary to visit Stafford to see the various situations and problems involved at first hand. Undoubtedly this visit did a great deal of good and was most worthwhile.
On reading the report I am sure that the market traders are in full agreement with the findings of the Select Committee, save for the description of the siting of an alternative market as being "adjacent" to the present Shire Hall site. The word "adjoining" would be far more acceptable to the market traders, as in the first instance the market traders were very worried about the potential siting of any replacement market. Indeed, they were so worried that many of them pledged their life savings to try to get matters brought to a speedy conclusion and to contest the plans of the borough council both in the courts and in Parliament.
Nevertheless, the Select Committee have given a thorough report for which I am sure all involved in the Bill are most grateful. I thank your Lordships for the consideration given to this troublesome part of the Bill, and I shall delay this Third Reading no further.
Lord Ampthill: My Lords, on the substantive point that the noble Earl has made about the Committee's choice of the word "adjacent" rather than the word "adjoining", I should like to reassure him inasmuch as the proposed new site for the market is only 24 feet distant from the old site. I hope that that will not only reassure him but the House and indeed the market traders. Meanwhile, the Select Committee will be grateful to the noble Earl for the general welcome he has given to our report.
The Earl of Listowel: My Lords, I am sure that my noble friend the Chairman of Committees will read Hansard with much interest to see what both noble Lords have said.
On Question, Bill read a third time, and passed, and sent to the Commons.

Milford Haven Conservancy Bill
Read a second time, and committed to an Unopposed Bill Committee.

Occupiers' Liability Bill [H.L.]
3.10 p.m.
The Lord Chancellor (Lord Hailsham of Saint Marylebone): My Lords, I beg to move that this Bill be now read a second time. In the year 1928 when my father was first Lord Chancellor and King George V was on the Throne, your Lordships, in their judicial capacity, decided a case called Addle v. Dumbreck. It was a case concerning distressed liability of an occupier of premises to children. My father fondly—but as it turned out mistakenly—believed that
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the decision of your Lordships' House would still the controversy for ever. In the year 1957, the then Law Reform Committee proposed a little gem of a statute about law reform dealing with the liability of occupiers of premises to visitors. That remains the law but it did not settle for ever the question of liability to those who were not there by invitation or licence of the owner.
In the year 1971 when I first was Lord Chancellor and Her present Majesty was on the Throne your Lordships, in their judicial capacity, came to a decision which I will call by the name of Herrington and raised again the question of the liability of occupiers of premises to trespassers. They came to a unanimous decision but, like industrious mountaineers, they climbed the peak from opposite directions with the result that a number of doubtful and interesting questions arose. Following that decision I referred the matter to the Law Commission, which by that time had taken over some of the functions of the Law Reform Committee. Years passed and in 1976 the Law Commission delivered its report to the noble and learned Lord, Lord Elwyn-Jones, who was by that time Lord Chancellor. That report was overtaken but endorsed by the Pearson Commission. The first part of the Bill now endeavours to deal with the recommendations which were made by the Law Commission and the Pearson Commission.
Last year I was invited to find room for proposals on this aspect of the matter in the course of the Administration of Justice Bill. At that time I discouraged the noble Lord, Lord Stanley of Alderley, from pressing his amendments because Government consultations were in progress. I told him that I would try to devise a vehicle for him and devise it I have sought to do. I hope it will have round wheels and not wheels of the square variety, and that it will now go forward with acclamation and success.
The first object of the Bill is to carry out the Law Commission's response to the task I gave it arising out of the case of Herrington. I do not mention in any detail the provisions of Clause 1 which can be found beautifully drafted in the clause. But in case anyone thinks from my earlier words that this is to be a charter for trespassers I think that if they look at the clause they will find this is not so.
Clause 1 does not aim to destroy the existing law but follows the biblical injunction to fulfil it by combining in a single set of propositions the slightly different lines of argument by which the members of the Appellate Committee, who were concerned in Herrington's case, arrived at the same general conclusion.
There is a second point which I should now mention in connection with Clause 1. The new statutory duty propounded by the Law Commission is to apply not only to those who enter upon land without authority and thereby are technically trespassers, but also to a very large group of people who enter land without the consent of the owner but in exercise either of a private right of way or a right of public access conferred by statute under Section 60(1) of the National Parks and Access to the Countryside Act 1949. Access to the countryside is a theme to which I shall return later in connection with Clause 2. But I commend Clause 1 as a piece of uncontroversial law reform backed by the recommendations not only of the Law Commission but also of the Royal Commission on Civil Liability.

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The second object of the Bill requires a little more explanation. It arises from a consequence which I believe to have been unintended of the Unfair Contract Terms Act which came into force, as your Lordships will recollect, on 1st February 1978. That was a Bill introduced by the noble and learned Lord, Lord Elwyn-Jones. It received a welcome from every quarter of the House. Indeed I welcomed it myself at the time from the Opposition Front Bench. It effected a much-needed change in the law by regulating the use of exclusion terms in commercial relationships, particularly when a term is to the advantage of the provider of the goods or services and to the prejudice of someone described in the Act as the consumer. As a rule the Act does not impinge on private transactions. But like most new shoes it has been discovered that it needs adjusting. The first five years' experience of the working of the Act has, as I have indicated, revealed one unintended side effect. It has caused an undesired and unintended reduction in access to the countryside of England and Wales, although not to Scotland with which we are not concerned this afternoon. I say "unintended" because there is nothing in the Law Commission's report which suggests that such a consequence was intended, and so far as I can ascertain there was no mention of any such consequence in Parliament.
The general purpose of Clause 2 is to tackle this undesirable side effect. The point arises in this way. The Unfair Contract Terms Act applies to land and premises, among other things, which are used for the purposes of a business. The result is that the power of a farmer, we will say, to restrict access to his land is necessarily involved in the Unfair Contract Terms Act. But many landowners and farmers own premises in which there is, for instance, a pothole—by which I mean something in which people go potholing, not one of the things which one finds in roads—or a mountain crag as we find, for instance, in Tunbridge Wells where rock climbers may desire to practise their art. Some landowners and farmers also own lakes or rivers which may contain dangers of one kind or another.
The undesired consequence is that they realise that they are carrying on a business on their land—it may be farming or some other use of the land—and they are caught by the Unfair Contract Terms Act if they give access to anybody to enjoy the countryside. That would be all right if it were for profit or in the course of their business or any other business. However if they simply want these people to enjoy themselves for nothing it is not in any true sense a business use of the land. The effect has been that they have excluded the public on occasions when they would have been quite willing to give access because they were afraid of attracting liability and were afraid also that they were unable to exclude liability under the Unfair Contract Terms Act.
The general purpose of Clause 2 is to tackle this undesirable and unintended side effect by a small amendment which will not affect the main thrust of the Unfair Contract Terms Act. The point arises in the following way. The rights of access to the countryside exist in two main classes. The first class consists in rights of way and rights of public access under the National Parks and Access to the Countryside Act
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1949. These are rights of access which the landowner may not deny or restrict. On the other hand, as regards the safety of persons, the landowner owes no higher duty than he would owe to traspassers—which I have already dealt with under Clause 1 of the Bill.
Secondly, there are these rights of access, to which I have referred, which arise out of private agreements between the landowner and his visitors. These are the rights with which Clause 2 is concerned. The landowner owes such visitors the common duty of care under the Occupiers' Liability Act 1957; but that Act provides that he may restrict or exclude his civil liability to such visitors if he wishes to do so. The effect of the Unfair Contract Terms Act has been to regulate any such restriction or exclusion wherever the land in question has a business use. The effect is, as I have described it, that most of the countryside has a business use in either agriculture or forestry. and landowners have had to choose between, on the one hand, allowing access and running the risk of civil claims for breach of the common duty of care under the Act of 1957, and, on the other hand, refusing access altogether.
Over the past five years the tendency has been for access to be refused, to the great disappointment of those enthusiasts for outdoor pursuits whose interests are represented by the Central Council of Physical Recreation. The purpose of Clause 2 is to reverse this trend by enabling landowners to permit recreational access subject to terms which exclude liability for the safety of the premises. The worry about safety is a real one; land is often naturally dangerous, particularly when there is open water, crags or caves which provide recreation for various types of outside sport. Moreover, modern farming methods include the use of machinery and plant which are dangerous, too.
It is not the purpose of Clause 2 to give the business occupier of land carte blanche to exclude all liability. The proposed amendment to the Unfair Contract Terms Act is limited in two important respects. In the first place, the proposed restriction is confined to dangers arising out of the state of the premises: it does not, therefore, extent to activities which are carried on on the premises. Secondly, and more important, the proposed restriction does not apply to cases where access to the land is given as a matter of business. For instance, there is no case at all for excluding the operation of the Unfair Contract Terms Act to places like holiday camps, safari parks or bingo halls, any more than there is to any other kind of business. Clause 2 is intended to keep within the Unfair Contract Terms Act any terms restricting liability as regards business premises where recreational facilities are provided as part of a commercial proposition.
To sum up, the aim of Clause 2 is to enable the occupier to allow access to his land for recreational purposes on terms which restrict his civil liability wherever access is granted simply as a matter of neighbourliness or goodwill, but not where it is ganted in the way of business. It may be asked why the landowners should change their practice if the law is amended in the way I have indicated. Will they not continue to refuse access? I believe that there is good reason to think that they will not do so. The policy of refusing access has not kept all the enthusiasts away: determined mountaineers, pot-holers and other

723
adventurous people contine to come on the land, but without permission. This is an unfortunate development. It is bad for the visitor, because the risks of serious injury are greater, and bad for the landowner, because he does not have control over the activities of trespassers and cannot advise them what they need to do for their own safety or to protect his own property from damage.
For these reasons, the objective of Clause 2 is one which I believe will be supported not only by the Central Council of Physical Recreation, who wish to see greater opportunities for outdoor recreation, but also by landowners, who wish to see access to their land put back on a proper legal footing. With that explanation, I beg to move that the Bill be now read a second time.
Moved, That the Bill he now read a second time.—(The Lord Chancellor.)
3.25 p.m.
Lord Mishcon: My Lords, I rise with the solemn determination that the two clauses which the noble and learned Lord has with such skill and clarity joined together should not by any Member of this Front Bench be put asunder. In that pious resolve, I am authorised to say, my noble and learned friend Lord Elwyn-Jones concurs. From that brief statement it will be seen that in principle the Second Reading of this Bill will certainly not be opposed from this side of the House. But there are certain matters for doubt, certain questions which arise in regard to the Bill, which I venture to put forward before your Lordships so that the noble and learned Lord, with his usual great capacity, can deal with them if he so wishes in his answering speech this afternoon, or possibly in his later consideration of the Bill itself.
As your Lordships have heard, Clause 1 of the Bill deals with the law of liability of occupiers of land to trespassers and those who go upon their land without the occupiers' knowledge but with lawful authority, such as (as the noble and learned Lord has pointed out) the users of a private or a public right of way. The noble and learned Lord is right. The present common law on the subject is complex and, to a degree, uncertain, and has to be gleaned from five long and learned judgments of Members of your Lordships' House sitting, as the noble and learned Lord has said, in their judicial capacity in the 1972 case of British Railways Board v. Herrington.
The Bill appears to follow the Law Commission' proposals by providing that an occupier of premises may discharge any duty in law which he may owe to a trespasser—and I am using that term in its broad sense, as reflected in Clause 1—by taking such steps as are reasonable in the circumstances of the care to give warning of any danger, or by taking adequate precautions to discourage danger. This sounds, and indeed is, fair enough; but we have to be extremely careful about what we are doing in the proposed legislation because the Bill expressly substitutes the law as it now pronounces it to be for the common law provisions which exist.
All sorts of occupiers are interested in this point, but it is the County Landowners' Association who have
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expressly made this point in a letter addressed to me and to other noble Lords. We have to be very careful that it is as clear as is the present common law in regard to trespassers who come on to the land for criminal purposes, the commonest of which would be burglars or poachers. Volenti non fit injuria is a maxim of our common law well known to lawyers. "If you voluntarily take a risk you cannot complain about an injury resulting from it", is a rough and ready translation. But there is also a maxim which clearly applies to the criminal trespasser (if I may so call him) and that is ex turpi causa non oritur action—
Lord Elwyn-Jones: Hear, hear!
Lord Mishcon: My Lords, this, again, roughly translated—which my noble and learned friend, I am sure, was about to do for me—means, "no right of action stems from a wicked cause". These maxims, so beloved of lawyers, sometimes lead my profession into the pompous belief that the layman of necessity knows of them and understands them. If I may digress, there is a classic and, I think, lovely story ascribed to the last of the great Irish Serjeants, Serjeant Sullivan, who was undaunted by any court before whom he appeared. On this occasion he was appearing in the Court of Appeal for an appellant workman in a workman's injury case. Said one of the learned Lord Justices: "Has your client never heard of the maxim, 'Volenti non fit injuria'?"—to which came the immediate reply in lovely Irish tones: "My Lord, in the small village in Antrim from which my client comes, it forms the sole topic of conversation."
I will revert if I may to the matter which I was on: that is, the liability of the criminal trespasser. It is the second of the common law maxims to which I have referred that possibly does deserve a bit of examination because the sole reference to it is by inference from the wording of Clause 1(6). I am not going to read that subsection but I will pose a question. Is the noble and learned Lord the Lord Chancellor satisfied beyond doubt that this subsection fully covers that second maxim of our common law? Is he similarly satisfied that the liability of occupiers of land to children trespassers is fully covered as it was in the decided cases of common law and is not in any way watered down? The noble and learned Lord referred in an affectionate recollection to his late father, who was indeed a distinguished predecessor of a distinguished son; and I have no doubt at all that he of all people will be interested to make sure that the liability towards children trespassers is in no way watered down, as I have said, in this Bill from the position that it had at common law.
I turn now to Clause 2. I have to take it, although I otherwise would have queried it, that in the law of liability that is the major factor in discouraging land owners from allowing people to come on to their land for residential purposes. For my own part, I would frankly have thought it had much to do with the selfish and messy behaviour of a minority—but unfortunately not an inconsiderable minority—of those who go on to land for recreational purposes and especially for a picnic. But I am more than impressed, as the noble and learned Lord pointed out, by the emphatic support which so many worthy

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organisations connected with leisure and recreation, including the Central Council of Physical Recreation and all its associated organisations, have expressed for an amendment of the Unfair Contract Terms Act 1977 which would allow occupiers of land to get exemption from liability in respect of injury and even death, provided that the terms and conditions of the exemption claimed are reasonable. I therefore cannot bring myself to object to the spirit of Clause 2.
However, what I have to do is to bring to the attention of the House the reservations of The Law Society in regard to the present clause, and I do it without necessarily support, but merely because I think it should be considered. I will read, if I may, quite shortly an extract from a letter which The Law Society has sent me on this subject:
"the Bill's provisions will only apply when the granting of access does not fall within the 'business purposes' of the occupier. When it does, the 1977 Act will continue to apply unchanged.
We suggest that this is unsatisfactory. First, it will mean that a liability stricter than that thought desirable by the Law Commission will continue to apply to a person granting access for recreational purposes, when the granting of such access falls within his business purposes.
In our view, it would have been preferable to adopt the Law Commission's approach and to have allowed all occupiers of premises used for business purposes (the 1977 Act does not apply to premises which are not used for business purposes) to exclude or limit liability, subject to the general reasonableness test.
This approach would also have met our second objection to the Bill. We feel that the adoption of the Clause 2 device of deeming liability not to he a business liability when the granting of access does not fall within the 'business purposes' of the occupier is likely to prove a source of uncertainty and litigation. In particular, we doubt whether it will always be possible to distinguish clearly the dividing line between an occupier's 'business' and 'non-business' purposes."
Finally, I realise that so far as Northern Ireland is concerned it will he for their own Assembly to deal with legislation of this kind. I observe that the Scots have opted out of this Bill, and I am always wary when Scotsmen do things. It usually is for a good reason that deserves respect. I understand the reason for their opting out of Clause 1 because I am told that clause corresponds to the law in Scotland as it now is; but they have consciously and deliberately opted out of Clause 2 and have decided for their part not to amend their corresponding provision in the Scottish version of the Unfair Contract Terms Act, which is Section 16(1). Are we to hear from the noble and learned Lord the Lord Advocate or from the noble and learned Lord the Lord Chancellor giving the reasons why our Scots brethren have come to this conclusion? One would have thought there would have been a great benefit if the law on this subject were the same on both sides of the Border, as otherwise unjust and indeed misleading anomalies on precisely the same facts can be created.
I have put before your Lordships—I hope at not too wearisome length—some queries and doubts that arise on the Bill itself; but, as I said before, in its general terms it has the support of my noble friends and myself and I certainly commend a Second Reading to your Lordships.

Trade Unions: Democracy
3.38 p.m.
The Earl of Gowrie: My Lords, it might be for the convenience of the House if I were now to repeat a
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Statement which is being made in another place by my right honourable friend the Secretary of State for Employment. The Statement is as follows:
"I am now able to announce the Government's conclusions following the consultations on the Green Paper Democracy in Trade Unions and to outline the legislative proposals I propose to lay before Parliament when the House reassembles in the autumn. I am publishing today a paper explaining these proposals and providing an opportunity for consultations on them.
"Numerous detailed and thoughtful responses to the Green Paper were received from employers, employers' organisations and individual trade unions, including some affiliated to the TUC.
"These confirmed that there is widespread concern about shortcomings in trade union procedures for elections and for consulting their members on major issues, particularly on strike decisions. There is undoubtedly widespread support for legislation to safeguard the rights of members in relation to their unions.
"As foreshadowed in our election Manifesto, the legislation will cover three main issues: trade union elections, strikes and the political activities of trade unions.
"First, elections. The legislation will require elections to the governing bodies of trade unions to comply with the following principles: voting must be secret and by ballot paper; there must be an equal and unrestricted opportunity to vote; every union member should be able to cast his vote directly. These principles are not a legal straitjacket. They are the minimum necessary to ensure free, fair and democratic elections. Within them, trade unions will be free to constitute their governing bodies in the way they judge will best serve their members' interests and to decide on the form of ballots.
"Secondly, strikes. The consultations have shown continuing concern about the way in which strike decisions are taken. Accordingly, I propose that, if a trade union orders or endorses industrial action by its members in breach of their contracts of employment without first consulting those members in a secret ballot, that trade union should lose immunity from the normal civil law consequences of its action. This will give the community more protection against irresponsible industrial action and provide new safeguards for trade union members themselves against being required to strike without their consent. I also expect in due course to consult on the need for industrial relations in specified essential services to be governed by adequate procedure agreements, breach of which would deprive industrial action of immunity.
"Thirdly, the political activities of trade unions. The Government accept that a trade union should be able to adopt political objectives and to set up a political fund. However, I believe that the authorisation of a political fund should be subject to review by a periodic ballot of the membership. The present members of trades unions should not be bound forever by a ballot that may well have been taken before any of them were born. I propose that the 1913 Act should be amended to require that politi

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cal objectives and funds should be submitted to ballot at least every 10 years.
"For some years there has been disquiet over the operation of the system for contracting out of the political levy. I therefore intend to invite the TUC to discuss the arrangements which trade unions themselves might take to ensure that their members are fully aware of their statutory rights and able to exercise them freely and effectively. I hope that the trade unions will be willing to take such steps. If that hope is disappointed, I would be ready to introduce measures, as we made clear in our manifesto, to guarantee a free and effective right of choice.
"Mr. Speaker, the events of recent weeks have made it abundantly clear that trade unionists are now insistent that they should have a greater democratic voice in the affairs of their unions, and the Bill which I shall bring forward will respond to that demand".
My Lords, that concludes the Statement of my right honourable friend.
3.42 p.m.
Lord Underhill: My Lords, the House will be grateful to the noble Earl for repeating that Statement, but I think noble Lords will agree that it is somewhat of a non-event. We seem to have been here before. It is a repetition of points made in our recent debate in this House on the gracious Speech, and points that we actually expected. Of course, we all want the widest participation of members in any organisation. In passing, one would question the position of the Conservative Party as regards the participation of its members, as regards the election of its own leader, who becomes the Prime Minister at certain times, and also as regards the election of its own chairman who, I think, is appointed by the leader without the participation of a single member of the Conservative Party. Of course, we all know that in many companies the decisions are taken by a few big institutions. Therefore, there are lessons in democracy and participation to be learned on the other side as well.
On the question of union ballots, we would of course favour the widest participation where the members of a union desire it. There are different rules—we have pointed this out before—different practices and different historical backgrounds, but I challenge the Government, as I did in the debate on the Queen's Speech, to show me any union rules which prohibit a member from tabling an amendment to change the method of election of its officers. Therefore, the rights are with the members and they should remain with the members, and should not be affected by the diktat of any particular Government.
Of course, on the question of strike ballots, there are times when one would favour the maximum participation of the members concerned. But even the Government's own Green Paper stressed that at times such ballots are impracticable, would do more harm than good and could prolong a strike rather than shorten it. Even the Green Paper stressed that there could be a tendency for more unofficial strikes, more "go-slows" and more working to rule. That has been ignored by the Statement which we have had today.
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On political activities, any fair-minded person would say that this was a one-sided attack on a particular political party. Reference is made in the Statement to being bound forever by a ballot at one time. I repeat the challenge that I have made regarding the union rules. I challenge the Government to show me any union where the rules would not permit a member to table at his branch an amendment to change the political activities of the union, and, if desired, to withdraw a particular affiliation to a political party. That challenge is there with the other challenge that I made. Union rules may be amended—
Lord George-Brown: My Lords, would the noble Lord—
Lord Underhill: My Lords, I am replying on the Government Statement and I do not think that this is an occasion for me to give way. If the Government are to proceed on these lines, would they be prepared to give consideration to the position of commercial donations to political parties, decisions about which are taken in the main by a few institutions? Should not the workpeople be aware of political donations and should not consumers be aware of political donations when they purchase objects at the shops?
There is one notable omission from the Statement. There is not a single reference to worker participation in any form at all. On this side of the House, we would say that proper industrial relations and proper worker participation would do far more to deal with the problems of industry than what is contained in this Statement today. I would remind the House that, as we have pointed out time and time again, the present Government who have put forward this Statement opposed the Vredeling Directive in Europe, which would have made it mandatory upon the big multinationals to give information to, and permit consultation with, their workforces. That makes these proposals somewhat hypocritical, but we shall do our best to deal with them when they come before the House.
Lord Rochester: My Lords, from these Benches, I should like to join in thanking the noble Earl for having repeated the Statement by his right honourable friend. At this stage, I propose to offer only two general observations on the Government's legislative proposals. The first is that, in all the areas covered by the proposals, we are satisfied that abuses of union power or of the existing law have been identified and the case has, therefore, been made out for introducing further legislation. At the same time, it is important in our view that changes in the law should be of such a kind that they have the support of the general body of trade unionists and, therefore, have good prospects of proving effective. On this score, we shall study with particular care the proposals concerning secret ballots before strikes, on which in our debate last March on the Government's Green Paper I expressed certain reservations on grounds not of principle but of practicality.
Secondly, we welcome the Government's offer to consult with trade unions on two difficult questions which are referred to in the Statement—industrial relations in essential services being governed by

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adequate procedure agreements, and financial contributions to the political activities of trade unions. Is it not very much in the interests of trade unions themselves that they should now agree to enter into discussions with the Government, so that they have a better chance of influencing the form that legislation finally takes? I very much hope that that is what they will now decide to do.
I have just one or two questions to put to the noble Earl. Would he agree that all the legislation canvassed in these proposals is once again, perhaps necessarily, of a controversial nature? In response to a question that I asked last week relating to the desirability of employee involvement in the public sector—which was touched on just now by the noble Lord, Lord Underhill—not as the Minister appeared to think, through compulsion, but voluntarily in line with provisions that will in future apply to companies under last year's Employment Act, he appeared, if I may respectfully say so, to be somewhat dismissive. Will he take this opportunity to confirm—I ask this question in a constructive spirit—that the Government, like us, look forward to the time when, more positively than may be possible under these proposals, ground can be marked out upon which management and employee representatives are able to work together in trying to improve industrial relations?
3.51 p.m.
The Earl of Gowrie: My Lords, I thank both noble Lords from the Opposition Front Benches for the overall tone of their response to the Statement. Obviously, I rather prefer the response of the noble Lord, Lord Rochester, to that of the noble Lord, Lord Underhill. Of course the legislation was anticipated. It was inherent in widespread consultation, in the publication of a Green Paper and in our manifesto commitment that legislation should be anticipated. That is why this is democratically approved legislation. I do not think it was wise, if' I may respectfully say so, of the noble Lord, Lord Underhill, to complain that in some way he had heard this before. That was the very purpose of the Government: to make sure that people knew about it.
On the subject of the Conservative Party's internal procedures, they, like the internal procedures of the Labour Party, or even those of the Alliance Party, do not directly lead to the hiring and firing of individuals, nor affect their livelihood. That seems to us to be, therefore, a different case altogether. On the issue of applying the same principles to companies, companies are profit-making organisations which, subject to their shareholders' views, have a right to use those profits in whatever way they think proper and in whatever ways are allowed by the law. In general terms, unions are far less fettered by the law than are companies. This applies to political donations as well. One only has to rake through the statute book in respect of company legislation and look at the successful careers of lawyers dealing with City practices, codes and legislation to recognise what I am saying.
The noble Lord, Lord Underhill, is, I think, famous up and down the land for his concern about the damage which entryism and other undemocratic practices have caused the Labour Party. I am simply sorry that this afternoon he did not appear quite to be
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evincing a similar concern over the same principles. On the subject of the political levy, which the noble Lord, Lord Underhill, raised, review ballots for political funds and the right of the individual member to opt in or out of the levy are surely separate issues. Whether a union has a political fund and engages in political activities is, of course, a matter for the whole membership to decide—and, in our view, to decide not once and for all but at least once every 10 years. The right of an individual trade unionist to decide for himself whether he pays the political levy—a right established in 1913—is an entirely different matter. The right of an individual to opt out of paying the levy if he chooses to do so is in no way safeguarded by a balloting requirement, and the ballot does not affect the method which unions employ to collect the levy.
Both noble Lords urged me to make a statement about what is loosely called participation. It does not seem to me to be a negative approach to participation to oppose the Vredeling Directive, which would have loaded great costs and administrative difficulty on companies and thereby threatened profitability, competitiveness and employment. I can say to the noble Lord, Lord Rochester, as I did. I think, earlier in response to a question at the time of our debate on the gracious Speech, that the Government are very much in favour of unions and management working out for themselves good practices in participation, and I in no way retreat from that statement.
Finally, the noble Lord, Lord Rochester, asked me about essential services. I stress that we have held wide consultations and that we have a mandate for consultation on essential services procedure agreements as a separate issue.
Lord Aylestone: My Lords, the Statement which the Minister has repeated today is, as the noble Lord, Lord Underhill, mentioned, a return to the position which we debated during the passage of the Employment Act in the last Parliament. During its passage, we on these Benches and the Liberal Benches covered almost every one of these items as an amendment to the Bill. In fairness to the Government, let me say that they made it absolutely clear when amendments were withdrawn or defeated that the principle underlying those amendments would be raised in subsequent legislation. It was contained in the Government's manifesto. It was also contained in the manifesto of the Alliance. In fact, therefore, there is nothing new in these proposals, as the noble Lord. Lord Underhill, said.
I have only one point to make but it is. I believe, rather important. The document which is related to the Statement, called Proposals for Democracy, is to be circulated and made readily available. May I suggest to the noble Earl that this document should be circulated not just to the TUC but to every trade union individually, since many trade unions now adopt more democratic methods. For example, the Miners' Federation would be prepared to offer advice. When legislation is brought forward it will then be clear that it has been fully discussed with the trade unions which will be affected by it.
The Earl of Gowrie: My Lords, I am grateful to the noble Lord, Lord Aylestone, both for his general

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welcome of the proposals and also for reminding me of a point made by the noble Lord, Lord Rochester, which I did not take up: the point about whether trade unions will consult with us about this issue. The straws are in the wind that they will. Certainly this legislation should be thought of not as anti-trade union but as pro-trade union member. We have had a very clear response from individual members of trade unions—found through polling, through consultations and also through the election—that they are in favour of these modest proposals.
Lord Lee of Newton: My Lords, may I ask the noble Earl a pertinent point about the constitution of the second largest union in Britain? I have never been a full-time official of it, so I have no interest to declare; but I was a member of its national committee, which is the supreme body for making its policies. It is composed of 52 rank-and-file members. That body, and no full-time official, makes the policies. There is also what we call a final appeal court. If the most humble member of the union wishes to take the president or general secretary to the final appeal court he will find that it is composed of rank-and-file members who will listen and give a decision as to whether the president or general secretary is right or wrong. Therefore, is the noble Earl aware that democracy in that union—and I know of others which are in the same category—is quite impeccable? All that the Government are trying to do is to recreate 1927, when they sought revenge for the General Strike.
The Earl of Gowrie: My Lords, I find that response from the noble Lord, with all his experience, an astonishing one. I am afraid it is another indication of the way in which the Labour Party is not moving with the times, not simply in respect of the concerns of my own political party but in respect of the concerns of its own most loyal members. Does anybody really think that things like block voting, or shows of hands at football fields, or elections held at night by tiny groups of activist people, are a proper way of conducting union affairs? Individual trade unionists have given an overwhelming thumbs-down to such procedures and we are simply taking modest steps to make their views apply.
Lord Renton: My Lords, is my noble friend aware that never was such a welcome and necessary reform accompanied already by so much consultation and public discussion, which we welcome? But are we to understand from the replies which my noble friend has already given that when, in the further consultations which are to take place with representatives of trade unions, conflict arises between the interests of the present representatives of the trade unions and the interests of their members, that conflict will be resolved in such a way as to give full freedom and democracy to the members?
The Earl of Gowrie: My Lords, my noble friend is precisely right. I should like to repeat that the Government are not critical of all unions in the practices that I have mentioned, and about which practices my noble friend has shown himself to be so concerned. We recognise that there are some unions which, clearly,
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have democratic procedures—for instance, for electing leaders. Our concern is really twofold: first, that repeated appeals for voluntarism and for the unions to put their own house in order have fallen on deaf ears where the senior management of some trades unions is concerned; secondly, to bring more unions into line with the practices of the best.
Lord Donnet of Balgay: My Lords, might I ask the noble Earl the Minister a question concerning the political activities of unions? The Statement mentioned that the existence of an objective and of a political fund should be subject to review. Later, "fund" was changed to the plural. It would make all the difference in the world if the Statement had stuck to the singular, which mentioned "political fund"; but the Statement went on to use the words,
"require that political objectives and funds",
with the objective and the fund or funds conjoined. Is that one subject? As a former administrator of a political fund, I find this point to be one of some importance.
The Earl of Gowrie: My Lords, I acknowledge with the noble Lord that there are broader issues relating to the funds of political parties overall. But the Green Paper—our consultation document for this legislation—was concerned with the relatively narrow, surely very important question of the individual rights of trade union members. As the system works at present, union members' acknowledged rights in the area of political contributions have not been properly protected, and that is what we have sought to correct.
Lord Gormley: My Lords, in dealing with this White Paper I am only allowed to ask a question, and I am therefore inhibited from saying things that I should like to say. As I said last week, I do not believe that the time spent on this legislation will help to put the economy right; it will not create one more job and will not create any more enthusiasm.
When I read this White Paper, I must admit that as a past president of a union I thought the Government had taken some of the rules from the union rule book in order to put them in this document. Well before this Government thought of democracy in trade unions the National Union of Mineworkers had it. We had secret ballots for officials and for national strikes. The political objectives of the NUM are quite clear, because they were set down many years ago. Also, I want to point out how difficult it is to change the rules of a union. One cannot change them just because the Government want them changed. There is no way that such changes can be forced upon a union unless the members, under their rules, choose to make them; but they cannot be changed in your Lordships' House.
Let me put this point to your Lordships. Let us presume that the executive committee of a trade union—which the Government may term responsible if it is a union that puts forward to its members something that the Government wish it to put forward—desire to change the rules in accordance with the Government's wishes. One of the rules in the union of which I was president was that in order to change a rule, such a change had to have the support of 66 per cent. of the conference. So what happens if the whole

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of the executive committee decides to recommend to the members that a rule he changed in accordance with the Government's wishes and then the members democratically turn round and say: "No way‡"? From whom will the Government take immunity? Will they take it from the executive committee, which has followed the Government's lead, or will they take it from the representatives of the other 300,000 members?
The Government are trying to introduce rules which cannot be operated. The Government must convince and coax people if they want something done, for they will not achieve changes by forcing laws through a Chamber such as this or the House of Commons. How will the Government deal with this point? How will they make a change possible if the union's members are not convinced that such a change is right? I do not accept the noble Earl's argument that trade union members want this. How the hell does he know what the members of the NUM are talking about any more than the leaders of the NUM know? How does the noble Earl know that leaders of other unions do not know as much as he does about the feelings of their own members? The noble Earl cannot glibly come here and say that he knows better than those who are in daily contact with trade union members.
The Earl of Swinton: My Lords, for the convenience of the House. I will just remind the noble Lord, Lord Gormley, of the rules. Ministerial Statements are made for the information of the House, and although brief comments and questions for clarification are allowed, such Statements should not be made the occasion for immediate debate.
Lord Gormley: My Lords. I apologise—but ‡did say it would be difficult only to ask a question.
The Earl of Gowrie: My Lords, the noble Lord, Lord Gormley, is a very experienced politician and one of the ancient arts in which he is engaging at the moment is to put up a clay pigeon which does not actually exist in the Statement and suggest that I am aiming at it. Nothing in my right honourable friend's Statement is in any way interfering with the internal practices of the National Union of Mineworkers—that is not what the Statement is about.
Where immunity is in question in the Statement and in the proposed legislation, it is where a trade union orders or endorses industrial action by its members in breach of contract without consulting members in a secret ballot. That is nothing to do with interfering with the rule book of the NUM. as the noble Lord appeared to he suggesting I was doing.
The Government also accept, as my right honourable friend's Statement allowed, that a trade union—including the NUM—should be able to adopt political objectives and to set up a political fund. Nothing in the proposed legislation alters that. We simply believe that the authorisation of a political fund should be subject to review by periodic ballot and should not be a once-and-for-all matter which can continue until the end of time. There is nothing unreasonable in that, and certainly there is nothing in terms of interventionism with the NUM's rule book in such a proposal.
Lord Hatch of Lusby: My Lords, may I ask two questions of the noble Earl? First, will he answer the question put by my noble friend Lord Lee of Newton: does he accept, with all the long experience my noble friend has in the trade union movement, that the conditions in the union which he described are fully democratic and do not need to he interfered with by any law imposed by the Government?
Secondly, this is the third time since the Conservative Party was elected in 1979 that it has taken action to impose its view of democracy on the trade union movement. Can the noble Earl tell the House when the Government intend to deal with democracy concerning industrial relations, industrial action, and political action from the CBI and its members and those companies which regularly give political support to the Conservative Party?
The Earl of Gowrie: My Lords, may I say to the noble Lord, Lord Hatch of Lusby, that I will refer him to the response I made to my noble friend Lord Renton. It was not the Government's concern to pick out individual trade unions for criticism but to raise overall standards to those of the best. I am sure that the noble Lord, Lord Lee of Newton, is associated with the best standards in this and other fields.
As to the strictures of the noble Lord, Lord Hatch of Lusby, about the Government's view of the internal democracy of trade unions, I respectfully suggest to him that we are concerned with the country's view. Not merely at the most recent general election but at the general election before that the country gave an unequivocal indication that it would like to see some modest internal reforms in those fields. It is the persistence of the Labour Party's view that that is not the country's wish, among other things, that led it to he overwhelmingly rejected time and again.
Lord Hatch of Lusby: My Lords, will the noble Earl please answer my second question?
The Earl of Gowrie: My Lords, I have already answered it in an earlier supplementary answer. All the noble Lord, Lord Hatch, has to do is to go through the statute book and look at the volume of company and commercial legislation in this country; it is overwhelmingly larger than the legislation pertaining to the internal procedure of trades unions.
Baroness Gaitskell: My Lords, may I ask the Minister a very short question, particularly following on several speeches that have been made? Would he not agree that this time of such high unemployment is the worst time for the Government to start tinkering with the trade unions and to start tinkering with their laws which have been there for generations, and altogether the worst possible time to start their hanky-panky?
The Earl of Gowrie: My Lords, I would not agree with that. It has been the inability of trades unions to move with the new circumstances of the modern industrial world that has generated so much of the present unemployment.
Lord Teviot: My Lords, would my noble friend not agree, in view of questions that have been asked, that it is right that those who pay their dues should have their views heard, whether by ballot or whatever?
The Earl of Gowrie: My Lords, I am grateful to my noble friend, and his views will be taken into account.

Occupiers' Liability Bill [H.L.]
4. 12 p.m.
Second Reading debate resumed.
Lord Walston: My Lords, may we now return to the somewhat smoother waters of the Occupiers' Liability Bill. I rise with considerable diffidence to speak on this subject because I can lay no claim to any form of legal expertise, certainly not to that of the distinguished legal lights, the noble and learned Lord the Lord Chancellor and the noble Lord, Lord Mishcon, who have already spoken, nor indeed to that of my noble friend Lord Foot who will be speaking later. I have, broadly speaking, only two things to say. First, I would like from these Benches to give a welcome to this Bill which goes a long way to fulfilling the purposes set out by the noble and learned Lord the Lord Chancellor in his opening remarks, and to express our approval of the aims that he has in mind.
The second point is to refer specifically to Clause 2 of the Bill. I think all of us agree that the time is overdue for increased access to the countryside. An ever-growing number of people living in urban areas want to share in some of the pleasures, some of the amenities which in the past have been reserved, in the first instance to country dwellers, but more specifically to the owners and occupiers of land. In the old days we used far too frequently to see signs on private property saying. "Keep out", "Trespassers will he prosecuted", and so on. Those signs, happily, are increasingly rare, and most of us. I think, who have the privilege of owning or occupying land welcome other people who do not own or occupy that land to come and enjoy some of its amenities, provided of course that they do not spoil it, that they do not leave litter behind or commit other acts of minor, or indeed major, vandalism. But there always is, or should be, in the back of the minds of owners and occupiers of land the question of their liability. Undoubtedly there are many such people who would like to extend the hospitality of their land to others if' only they were certain they would not be held liable for any mischance that might occur.
Perhaps I can give one personal example to your Lordships from my own experience. On my own land we have for many years put up signs in which we say that we welcome visitors, walkers and riders, so long as they fulfil certain very modest conditions. But there has always been a lurking fear in the back of my mind as to what liability we have entered into by putting up such notices. I would specifically put it to the noble and learned Lord as a, fortunately so far, hypothetical situation what the liability of a farmer would be in the following circumstances.
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A farmer has allowed, or indeed invited, the public to enter upon his land. A young lady is riding a young horse across his land, and there happens to be a crop there which is being preyed upon by flocks of pigeons. The farmer has therefore put up a gun which goes off intermittently in order to scare the pigeons away. That gun, by mischance, goes off just as the rider is passing by. The horse shies and the rider falls, and by a further mischance falls upon a farm implement. say a harrow which has been left off the path in the field—a perfectly legitimate normal farming operation, untidy you may say but something that goes on frequently. The rider is severely damaged.
At the present time before this Bill becomes law, as I hope it will, I understand the farmer would be liable for damage to the rider. Under this present Bill, as I understand it—I repeat I am not a lawyer so my understanding of it is poor—I have a feeling that that situation would not be changed. I would be most grateful if the noble and learned Lord could tell us whether this is the case. I emphasise the fact that I am giving this as only one example out of very many that could he thought of of the sort of thing which should be overcome if one is to encourage farmers, owners and occupiers of land to extend much further than at present their willingness to allow the general public to enter upon their land.
There is a further, perhaps rather more remote, point which also has come to my mind in thinking about the liabilities of landowners. Here I must confess I am speaking with the disbenefit of hazy memory. A good many years ago I was a commissioner of Crown estates, and my recollection is that the Crown had the liability for certain ancient workings for gold in some of the Welsh hills. These were fairly deep shafts, which had become very much overgrown, and they presented a very real hazard to ramblers who were not over-careful where they explored and where they put their feet. As a result, the Crown, as a good body recognising fully its responsibility, had to go to very considerable expense in order to fence these disused shafts. But, even so, some of these fences were not maintained perhaps as well as they should have been and occasionally broke down. Is that the sort of liability which is covered by this Bill or will a liability of that kind continue, or is there any means by which, by a general notice, warnings can be given which will fulfil any obligations which the owner may have?
My only point in raising these two matters is to make certain that in this Bill those impediments which at present stand in the way of owners and occupiers of land giving freer access and inviting more people to come onto their land are, in so far as is possible, removed. Having said that, I repeat that the general principle of the Bill is one with which we are in full agreement.
Lord Mottistone: My Lords, in my very few remarks I must tell your Lordships that I am advised by the Confederation of British Industry and also by the National Farmers' Union.
The Bill is welcome in principle, as the noble Lord, Lord Walston, has just said, but there are some doubts about its details. In due course I expect to put down some amendments in Committee, mainly in order to clarify the meaning of certain parts of the Bill and to

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make them more certain as protection for industrial and agricultural owners of land, who make common cause in this respect—and they do not always do that.
By way of a few examples—and I certainly do not expect my noble and learned friend the Lord Chancellor to give the answers now—I shall put the sort of questions one would ask in probing amendments. For example, is there any intention that the rules in Clause 1 extend to duties and defences under statute law: that is, under the Mines and Quarries Act? Another example, relating to Clause 2, is: does "recreational" include "educational"? On that point, when I refer to "educational" I mean educational in the broadest sense. I am not going back to the point made by the noble Lord, Lord Mishcon, about children, but there are occasions when people go on to land and, indeed, into factories for educational purposes. Or is "recreational" very narrow? Is it perhaps a bit of both? Those are the kinds of question which I and, I gain the impression, other noble Lords who have spoken, and no doubt others who are to follow, will want to ask in order to obtain a little more clarification and to ensure that the Bill, for whose introduction we thank my noble and learned friend the Lord Chancellor, is achieving the aims which we entirely applaud.
4.25 p.m.
Lord Foot: My Lords, I shall confine my remarks to one point only. It is a legal point and on that account may not be very popular. It is not a criticism of the Bill but expresses the belief that, if any high hopes or expectations have been raised—and I am speaking now only about Clause 1—that this is a major advance, those expectations may be disappointed.
I say that for this reason, although perhaps I may say first of all that I take some courage in putting forward this single view because it is, I think, a proper Second Reading point and not a point of detail. As the noble and learned Lord the Lord Chancellor said, the main object of Clause 1 is to seek to clarify and bring some order into an area of the law over which there has long been difference and dispute.
Subsection (1) poses the questions which the rest of Clause 1 purports to answer. Subsection (1) states that,
"The rules enacted by this section shall have effect, in place of the rules of the common law, to determine—
(a) whether any duty is owed by a person as occupier of premises to persons other than his visitors … and
"(b) if so, what that duty is."
I hope it is fair to say that in the rest of the clause one finds the Bill's answers to those questions. I hope it is also fair to say that it does so by resorting over and over again to the test of what.
"is reasonable in all the circumstances of the case."
If we look, for example, for the answer to the first question of whether there is any such duty on an occupier, the answer that emerges from the Bill is, "Yes, there is such a duty". The occupier is under such a duty if
"in all the circumstances … he may reasonably be expected to offer them" —
that is, the intruders—
"some protection."
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In answer to the second question of what is the nature of the duty, the answer in the Bill is that.
"the duty is to take such care as is reasonable in all the circumstances of the case".
In subsection (5) one finds a repetition of the text. That deals with the way in which the duty and the care can be discharged by giving a warning. It provides that the warning may be sufficient if it is.
"reasonable in all the circumstances of the case".
Although one hesitates to criticise or question the value of a measure which was recommended in the first instance by the Law Commission, which was subsequently recommended again and endorsed by the Royal Commission and is presented to this House by the noble and learned Lord the Lord Chancellor, I express the doubt whether this formula of what is suitable and reasonable in all the circumstances, which is applied throughout the clause, carries the matter very much further than it was before.
I quote in detail the terms of subsection (3), although I will leave out the words that arc not relevant to my argument. Subsection (3) provides that.
"An occupier of premises owes a duty to persons other than his visitors in respect of any such risk as is referred to in subsection (1) above if"—
I shall leave out paragraph (a) —
"the risk is one against which, in all the circumstances of the case, he may reasonably be expected to otter them—
that is, the intruders—
"some protection".
Does that really amount to saving anything more than this: that an occupier is under a duty of care to a trespasser or intruder where the circumstances make it reasonable that he should be under a duty? If that is right, in what way does this clause improve on the previous situation?
The major question that was, I suppose, considered in the Herrington case was: what was the statement in English law on the liability to trespassers? That was the issue with which the House of Lords was concerned. Among the many questions posed in that case was, first, the question whether there was any duty of care towards a trespasser. Another question was: does the duty vary according to the nature of the trespass and the nature of the trespasser? It is unnecessary to point out that trespassers can be of many different kinds. At one end of the spectrum there is the case of the child of six, as in the Herrington case, who trespasses upon an unguarded railway. At the other extreme there is the burglar or the person who steals the farmer's turkeys. Between those two there is a whole variety of different types of trespasser. There is the deliberate trespasser who goes in not with am criminal intent but in defiance of what he knows to be the wishes of the occupier of the land. There is the trespasser who trespasses in the mistaken notion that he has a right to do so. There are of course a variety of walkers and ramblers who may trespass upon somebody's land without understanding that they are trespassing, sometimes when they have simply lost their way.
I draw attention to that in order to ask this question. What guidance is provided in solving all those different and difficult questions by a clause which says only that an occupier owes a duty of care to persons where:
"he may reasonably be expected to offer them some protection"?

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I am not objecting to that; but those who expect that in the future the task of the courts when they are dealing with cases of this kind is going to be a simple one will. I am afraid. be disappointed.
4.31 p.m.
Lord Stanley of Alderley: My Lords, when during the Administration of Justice Bill we discussed this problem of occupiers' liability, both stupidly and unfairly I accused my noble and learned friend of not appreciating the farmers' problems and doing nothing about them. I say "stupidly" because I was unable to appreciate the points of law of my noble and learned friend and "unfairly" because I failed to believe that he would do anything about the situation, despite his remarks—which he has quoted again today—that he hoped that a Bill would be produced which had round and not square wheels and that it would go forward with acclamation and success. May I suggest that the vehicle of my noble and learned friend has neither square nor round wheels: in modern parlance, it has done better. He has put the skids under it. I am today proved to be a proper doubting Thomas but I do not altogether regret that. When dealing with nature, it is usually best to go forward slowly. My noble and learned friend's 14 years (I believe) as a farmer, prior to his changing to another profession, may have encouraged him to carry that philosophy into making new laws.
Today I very much welcome this Bill, which will help to make access to our farms easier, as is the intention in the Wildlife and Countryside Act. Perhaps I should say that there are one or two minor points concerning occupiers' knowledge of a danger and where the line is drawn on what is and what is not a business, a point which was so admirably brought out by the noble Lord, Lord Mishcon. I should like clarification later on these points. But I can assure my noble and learned friend that my questions will be probing. I appreciate his efforts in bringing this Bill forward and I do not want to submit to the same punishment as when I tried to move amendments on his Administration of Justice Bill.
Finally, I have to tell your Lordships—and I hope my noble and learned friend will agree—that this Bill is the result of much pressure not just by my noble and learned friend but by the farming community to encourage more access to our farms by the public. May I ask those who spend their time criticising kindly to take note.
4.43 p.m.
Lord I Hunt: My Lords, I have no intention to delay the passage of this Bill. I shall be brief. I am a late entry on the speaking list. I put my name down only after the list had been made up, having received encouragement to do so from the noble Lord, Lord Stanley of Alderley. I shall address myself very briefly only to Clause 2 and the provision that this makes for extending the parts of private property in which what might he called risk activities can be enjoyed by members of the public. Reference has already been made to the welcome given to the Bill by the Central Council of Physical Recreation, with which I have had long and
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close associations. It has an impressive list of no fewer than 42 members in its outdoor pursuits division. Among them, as your Lordships will not be surprised to hear, is the British Mountaineering Council which, ipso facto, has as its raison de re the encouragement of climbing and to support the interests of those who enjoy that activity—I hasten to say in its legitimate forms and places.
My noble friend Lord Walston has referred to a particular kind of accident: a fall from a horse by a young lady. I should like just to add that no climber would have any desire or any excuse to blame the owner or occupier of land if in the course of a climb on a crag, due perhaps to his own lack of skill or perhaps to his having a hold on a piece of unstable rock which came adrift, having made a rapid descent to the bottom, he arrived at the bottom and was impaled on a piece of farm machinery; all the less so because he would have seen it at the foot of his climb but nevertheless have elected to climb. It would add to the risk—which is after all the honey-pot which he seeks. No climber would thank an owner or occupier for helping him to make the risk any the less. He is there to take a risk.
My remarks, narrow as they have been, clearly apply equally to any other activity, such as some of those mentioned by the noble and learned Lord the Lord Chancellor, one of which we have shared in enjoying together. It is this risk which is so important to the circumstances and lives of so many younger people in particular who live in cities and who need such outlets. The particular land features in the countryside which provide for this kind of enjoyment, whether it is water or the subterranean activity of caving, hang gliding or whatever, are naturally limited in scope. They cannot he naturally added to. Meanwhile the number of those who wish (and, I believe, need) to have these outlets goes on increasing all the time. It is for that reason that I am so glad that this Bill will remove a certain restriction and limitation natural to those who Own or occupy the land. and will widen the opportunity in future.
4.39 p.m.
Lord Gisborough: My Lords, I should like to speak very briefly in support of this Bill. It has the desirable object of allowing occupiers to know better where they stand on this whole matter. The object of Clause 1 is to help resolve some points of doubt. but it does undoubtedly raise new ones. I hope that light will be shed on the concept of danger. For example, is the occupier liable if he did not know of the danger?
In particular, and going on from the point that the noble Lord, Lord Mishcon, made, in this age of vandalism, in my area where there are a lot of mineshafts, the occupiers usually make good fences around them but vandals destroy them. This could easily lead (and I never understand why it has not already) to trespassers being hurt. To what extent will the occupier, knowing that that danger is there, have to visit the site (perhaps daily) to ensure that the fence has not been taken down? There is another danger which has also cropped up in my locality: that is the barbed wire fence. I was very surprised to hear that it even presented a problem. In this particular case, there was no footpath and no right of access. Yet it was alleged

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that, because there was a barbed wire fence and because people were used to trespassing in that area, there Would he a claim against the occupier if they got hurt on that barbed wire. I hope that this point will be dealt with.
The clause tries to deal with the replacing of common law. As already mentioned, this is a dangerous thing to do because the draftsman has to ensure that all the common law principles and defences have been retained. There is a real danger that the occupier will be deprived of the defence open to him at present under common law.
Clause 2 permits occupiers more safely to allow public access for potholing and other recreations. The Bill is not clear about whether permitting access under certain circumstances could fall within the business purposes of the Bill. For example, there might he the case of a farmer who was totally involved in farming who might make a small charge for access or might even install an honesty box to help access or to fence round a potholing area. It is not clear whether that would form part of his normal business or whether it would he excluded and he accepted only as farming.
4.41 p.m.
Lord Burton: My Lords, I should like to ask one question. My noble and learned friend the Lord Advocate has given me the impression that this legislation is not to apply to Scotland because the law in Scotland is better than the English law in this respect. My noble and learned friend the Lord Chancellor may disagree, but it is my impression that somewhat similar legislation to this would be welcomed in Scotland. I wonder whether the Government will consider the matter.
4.42 p.m.
The Lord Chancellor: My Lords, I should like to thank all noble Lords for their friendly welcome to this piece of legislation and to answer, so far as I can, some of the various conundrums that have been put to me. I should like first to deal with the last speech. All I can say to my noble friend Lord Burton is that the Scottish departments considered whether to ask for Clause 2 to be adapted to apply to Scotland but decided against. I have no personal objection whatever. Should my noble friend desire the Lord Advocate or someone to answer in Committee an application to apply the law, with suitable adaptations, to Scotland, I should personally have no objection. But the Government's view is governed, as of now, by the Scottish departments.
I should like to return to try to clarify the purposes of the Bill. Clause 1 is, and remains, part of the law of tort, that is to say, it is what happens if someone gets hurt on someone else's land and no agreement whatever has been made about it. That is the background against which Clause 1 should be read.
Clause 2 is really part of the law of contract. Supposing that someone comes on to land by permission, in what circumstances is the landowner entitled to impose as a term of his permission that he should be excluded from liability? In dealing first with the latter issue, I take the point of my noble friend Lord Gisborough that, as a matter of fact but not of
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law, there could be a circumstance when you got pretty close to the line on Clause 2. But on the whole—I shall come back to Lord Mishcon's point on Clause 2 at a later stage—I do not think that it is very likely. However, I would say that, if you start charging for permission, you find yourself in danger of not being protected by Clause 2.
The broad answer given by Clause 2, which is part of the law of contract, is that if you allow people freely on to your land, not as part of your business, whether it is farming, forestry or whatever, but simply out of the goodness of your heart and neighbourliness, you can exclude liability as a term of giving permission. But, if you start charging, then I think that you would be in difficulty because, broadly speaking, it would become a business activity and you would have to justify your exclusion under the existing law of the Unfair Contract Terms Act. I am not saving that it could not be excluded. I am only saying that you would come under the Unfair Contract Terms Act and not under Clause 2 of the Bill.
That brings me back to Clause 1 and the noble Lord, Lord Foot. I would absolutely agree with him in his general observation that the law of negligence is never easy. It cannot be made easy because circumstances are almost infinitely different, the one from the other. But if, being a lawyer himself, he will look at what my father said in Addie v Dumbreck, which virtually excluded liability to trespassers, even child trespassers, unless you did it on purpose, it' I might put it that way, he will see why the Appellate Committee in Herrington chose to depart from my father's fairly easy statement of the law, which would be easy to define, in favour of something far more difficult to define. They answered the question, "Who is thy neighbour?" more on New Testament lines than on Addie v. Dumbreck lines. The moment you start answering the question on New Testament lines, you get exactly the difficulty upon which the noble Lord Lord Foot, put his finger. What, after all, is reasonable? Who is my neighbour? The only answer that the Bill can give and the only answer, I think, that can he given to the lawyer who puts this question, is that that becomes a question of fact for the court and not a question of law for the court. Circumstances differ a great deal.
I take it that Lord Walston's query was designed to he pointed at Clause 2 rather than Clause 1. The answer is that the rider who is allowed to ride on the farmer's land for his or her own enjoyment could, of course, come within Clause 2 if the farmer had said "Yes, ride on my land, but remember that I am not liable for any unforeseen accidents that may happen". If' she had not asked for the farmer's permission, then she would come under Clause 1. If the farmer knew that she was there and that there was a bird-scarer in the field, an ingenious solicitor might be able to advise her that she had a strong case. If one knew that a trespasser was riding a frisky pony in the neighbourhood of a bird-scarer, it might be reasonable to ask the landowner to say, "There's a bird-scarer, so you had better look out". As you will see from Clause 1 (5), a due warning given in such circumstances might discharge the owner of the land.
The noble Lord, Lord Mishcon, asked me questions about two well-known Latin tags. Volenti non fit injuria was one. I think he may find that this is dealt

743
with, so far as it can be dealt with, by subsection (6) of Clause 1. Subsection (6) states:
"No duty is owed by virtue of this section to any person in respect of risks willingly accepted as his by that person (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another)".
I think that he can be assured that the old tag of volenti non fit injuria" is available to a defendant if he can prove the facts under subsection (6).
As regards ex turpi causa non oritur actio, I am well aware that in one of his more lighthearted moments the noble and learned Lord, Lord Denning, said that ex turpi causa non oritur actio applies to actions of tort. However, he did so in a very lighthearted moment during a striking out application, or rather an interlocutory appeal arising out of a striking out application, and I wonder whether he had really thought the question through. After all, let us take the absurd case of the unfortunate monk who keeps in Devon. a special breed of bees which have been twice stolen by a wicked man. He would not be entitled to set spring guns or man traps to stop the fellow doing it a third time. He would not be able to raise under the common law or under Clause 1 the plea, "Ex turpi causa non oritur actio —bad luck, old chap‡". He would have to bear the "stings and arrows of outrageous fortune" if he did so.
However, supposing you found a burglar putting a ladder up against your house with intent to steal from it or to do something even worse? I am not sure whether you need lean out of your window and say, "Look out, the third rung from the bottom is slightly defective". I suspect that you would not be under a liability to such a man. But I doubt whether that is part of the doctrine of ex turpi causa non oritur actio.I doubt the application of the doctrine in general to the law of tort. I think that the real application is to raise Lord Atkins' question which he sought to answer in a very different context in Donaghue v. Stevenson—namely, who is my neighbour and what duty do I owe him? What is reasonable in the circumstances? The noble Lord, Lord Foot, is absolutely right in saying that that is not at all an easy question to answer. However, we hope to have posed the right question by this Bill and to have removed some of the doubts, which existed before the Bill—and which will exist until this Bill becomes law—as to the principles to be applied about which the lawyers, who took a stricter view than the New Testament about "Who is my neighbour?", have hitherto made a very great deal of difficulty. I hope that this Bill will clarify the law rather than create a revolutionary change in it.
I am not sure how far I have dealt with particular questions. As regards the question put to me by my noble friend Lord Gisborough concerning the mine shaft, I point out that in so far as Clause 2 is concerned, if the visitor comes on with the permission of the landlord then the landlord can either accept the general duty of care under the 1957 Act or exclude liability under Clause 2 of the Bill. If he goes on as a trespasser then I suppose the question would arise under Clause 1 of the Bill whether the landlord knew that the trespasser was in the vicinity of the danger concerned or had reasonable grounds for believing that he might come into the vicinity of the danger and
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whether the circumstances were such that he ought reasonably to offer him some protection either by warning or otherwise. But that would be a question of fact and not of law.
I hope that I have answered at any rate the bulk of the questions that have been put to me. I am grateful to the noble Lords who have spoken for their relatively friendly reception of the Bill. With those comments, I beg to move that the Bill be now read a second time.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Companies (Beneficial Interests) Bill
Brought from the Commons; read a first time, and to be printed.
International Monetary Arrangements Bill
Brought from the Commons endorsed with the certificate of the Speaker that the Bill is a Money Bill: read a first time, and to be printed.

Small Charities Bill [H.L.]
4.56 p.m.
Lord Renton: My Lords, I beg to move that this Bill be now read a second time. It is the same Bill, except for its short title, as was introduced by my right honourable friend Sir Angus Maude towards the end of the last Parliament in another place. He had 28 years of distinguished service there but he is not now in either House. Nevertheless, I regard this as very much his Bill. It passed through all its stages after thorough discussion in another place and was considered by your Lordships on 11th May when I moved the Second Reading but withdrew the Bill at the end of the short debate, Obviously it could not make further progress in the last Parliament. Today, however, I trust that your Lordships will give it a Second Reading. If you do so I shall move the Motion standing in my name:
"That the Bill he committed to the Select Committee to which the Parochial Charities (Neighbourhood Trusts) Bill has been committed".
that Bill having been introduced by my noble friend Lady Faithfull, who moved its Second Reading on 30th June. It was given a Second Reading and it was committed to that Select Committee.
I have re-named the Bill the Small Charities Bill because I think that it is a more appropriate short title. It deals not with charities in general but only with the very small charities. It is a short, simple, modest, well-drafted Bill—not drafted by me—and it has the backing of the Government. Also I find that it has the approval of at least one of the principal and most respected practitioners in charity law of my acquaintance. The Bill's purpose, which is stated in the long title, is:
"to enable the property of certain small charities to he expended without regard to restrictions distinguishing between capital and income"
in their trust instruments.
As a background to the Bill perhaps I could again draw attention to the fact that there are altogether

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about 140,000 charities registered with the Charity Commission; and more than half of them, strange as it may seem, have an annual income of less than £1,000 a year. The Chief Custodian of Charities estimates that in 1980 less than £1 income was paid out on no fewer than 7,000 holdings of land held by charitable trustees. Others have only very small amounts of capital invested in trusts in which the trust property does not consist of land but consists of investments. Of course, most of these very small trusts are parochial, but they are not confined to the relief of poverty, with which the Bill of my noble friend Lady Faithfull is concerned.
This Small Charities Bill applies only to trusts which are at least 40 years old—and that period has been chosen because it was about 40 years ago that we had to learn to live with inflation on a scale not experienced by our predecessors—and it applies to trusts which have no more than £1,000 of capital, whether in land or in securities. However, I should mention that under the Bill the Home Secretary is given power to increase that amount of £1,000 if he lays an order to do so and if that order receives the consent of both Houses. That provision is necessary in case of further inflation, in spite of the magnificant results of this Government's policy in restraining inflation. I should stress that under the Bill the trustees would still have to apply to the Charity Commissioners if they wished to sell land, but as a result of the Bill they would have a discretion to expend the proceeds of sale, or any other capital, on their own responsibility.
The Bill applies only to England and Wales, because the Scottish law on charities is somewhat different. Of course, as regards Northern Ireland, we mostly legislate now by Order in Council, and the Bill does not apply to Northern Ireland.
I wish to stress that, to this extent and in this way, there is nothing compulsory in the Bill because the decision whether or not to use capital for fulfilling the purpose of the charity is entirely at the discretion of the trustees, and nobody can force them to use the capital. Trustees often suffer great frustration through the income of small charities being so small that it will not even cover the limited cost of administration. So they are unable to carry out the charitable purposes for which they were appointed unless they can use capital—either the whole or some of the capital—in order to do so.
I think that most noble Lords who are present here this afternoon will remember that, when we debated this on 11th May, when I moved the Second Reading in the last Parliament. I gave the example of a village clock which could not be repaired unless the whole of the small amount of trust capital was used for that purpose. It seemed to me that that was an obvious case for enabling the capital to he used and, indeed, a case for it to be used even though it exhausted the whole of the capital; otherwise the clock would become just a useless eyesore in the village. My noble friend Lady Faithfull then said to your Lordships that, if that trust had become part of a neighbourhood trust, the clock would still be repaired. Sometimes that might be possible. but not always. But I must point out that under my noble friend's Bill that could not happen, because her Bill applies only to trusts for the poor, for the relief of poverty.
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The question also arose then, and is no doubt present in the mind of some of your Lordships, about the extinguishing sometimes of even small trusts. There is nothing new about the extinguishing of trusts. Indeed, Clause 6 of my noble friend's Bill envisages that possibility.
Although my noble friend and I each have misgivings about each other's Bill, as I said on 30th June, we have a "knock-for-knock" agreement not to oppose their Second Reading. I feel sure that, having considered both Bills, the Select Committee will gladly make the best use it can of each of them and suggest ways of improving them, perhaps even of blending them.
I also hope—as was suggested by the noble Lord. Lord Mishcon, on 30th June—that it will consider any further way in which the Charities Act 1960 might be improved in the light of experience gained since then. I do not suggest that a Select Committee of your Lordships' House should feel obliged to carry out a general review of the whole of the law of charity as, for example, was done by the Nathan Royal Commission in 1952; nor, indeed, quite such a wide review as has been carried out on several other occasions since then. However, I suggest that the Select Committee might feel that it should have power to consider, not only the precise terms of the two Bills, but anything within the Charities Act which comes broadly within the scope of the two Bills and has a bearing on it.
However, perhaps I may presume to issue a warning to the Select Committee and to your Lordships. I feel obliged to suggest that we should not confuse law and administration. Much of the criticism heard in our debates on these two Bills is really a criticism of delay or inaction on the part of the Charity Commission. It is delay or inaction for which those working in the commission or the commissioners themselves may not be to blame. The fault may lie in the fact that the commission has to be unnecessarily consulted. That in its turn may perhaps be due to the law, but it may simply be due to the commission having been required in some way or another—I do not specify which way—to do work which patently it is unnecessary for it to do. It leads to delays which may he to the disadvantage of the charity as, for example, when investments need to be changed and the stockbroker advising the trustees says, "Look here, there is a good opportunity. but you must not delay too long because if you do you will miss the market", but, by the time the matter has been referred to the Charity Commission, it is too late. On the last occasion, the noble Lord, Lord Mishcon, said that it could take months to get their consent, which is surprising, but I do not deny that he may he right. In my experience, it has taken weeks, which has been long enough to miss the market.
Therefore, the Select Committee should consider whether the Charity Commission is understaffed in relation to the burden placed upon it or, conversely, should consider whether the burden should be lightened in relation to the resources of the Charity Commission. Perhaps that is the better way to put it. So it will no doubt find that it should not only consider what amendments should he made to the law, but also the extent to which the law can be implemented administratively.

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As I shall have the right to reply to the debate, I shall then be happy to try to answer any further matters which arise from the Bill. Meanwhile, I hope I have explained enough of the purpose and effect of the Bill to enable me to say, my Lords, I beg to move.
Moved, That the Bill be now read a second time.—(Lord Renton.)
5.10 p.m.
Lord Mishcon: My Lords, the hope expressed by the noble Lord, Lord Renton, in his last sentence has been amply justified. He has as he always does, explained to the House with great clarity the purpose of the measure. This is one that he has adopted as his child, having in fact told the House who the parent is, The House will feel that, as usual, he has looked after his child extremely well.
The House is really indebted to both the noble Lord, Lord Renton, and to the noble Baroness, Lady Faithful, for having drawn attention to the problems that involve smaller charities where all of us who are connected with them know that a terriffic amount of waste of effort and of money occurs. It is so good that on a hot summer's day the warmth that exists between two Members of the House who have the same object should have led to an agreement that neither opposes the Second Reading of the Bill of the other, and that both, with your Lordships' consent, will go to a Select Committee to see whether wisdom entirely lies on one side or the other; or whether some amount of admixture of wisdom is the best solution to this problem; or whether indeed a third alternative exists in regard to dealing with small charities.
The noble Lord, Lord Renton, was quite right his Bill encompasses a greater variety of charities than the noble Baroness, Lady Faithful, had in mind. She had in mind of course the idea, if I can put it this way, of enforced amalgamation to carry out a common good. We heard—and rightly—that there was some objection in principle, it could be, to something mandatory which affects the wishes of a settlor or a testator. On the other side you get the permission of trustees to wind up a charity provided the charity is 40 years old or more and that its funds do not consist of more than a £1,000 in the present state of inflation. Again one hears echoing from the past the tradition that has been in charity law that you do not upset ever the wishes of a settlor or testator unless there are very good grounds for doing so, and you can then try to keep alive the charity by possibly adapting it to the purposes and needs of the time.
However, it is a little bit of an innovation in our legal system in regard to charities, I would submit, to say that the settlor, having weary trustees some 40 years on, finds, possibly in another world when he looks at what we are doing here, the fact that his original wishes have been bypassed by the successor trustees who have decided to give up the struggle. It is so sensible that the Select Committee looks at both Bills, if it be your Lordships' will. I so much share the hope of the noble Lord, Lord Renton—and he was kind enough to associate my name with this hope—that the Select Committee could look at the side issues that
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arise—and I agree with him, possibly administrative side issues—from both these Bills.
One of those considerations, as I believe the noble Lord, Lord Renton, hinted, would be the position of the Charity Commissioners. I know that the noble Lord will forgive me if I dissociate myself from the thought which may be in your Lordships' minds as a result of something that the noble Lord said, which is that every time trustees of a charitable trust decide, on stockbrokers' advice, or that of an expert, to vary their investments they have to go to the Charity Commissioners for consent. That is not the position as I understand it, and there are many charitable trusts which do not in fact enforce upon trustees that duty. If the noble Lord wishes to correct me upon that I have no doubt he will wish to report me, as he should do, to the Charity Commissioners and everybody else for having broken that regulation many times as a trustee.
Lord Renton: My Lords, I am grateful to the noble Lord for giving way. I am sure that he and I are in agreement about this matter, and the facts are plain. It is not always necessary to go to the Charity Commissioners, but it is necessary in far too many cases for various reasons about which the noble Lord may know more than I do.
Lord Mishcon: My Lords, I am glad that the noble Lord concedes that of course it is not necessary on every occasion. I do not think that this would be the time and place to say where it is necessary or where not: but I should hate the House to think that this is necessary on every occasion, because it would be completely impossible to manage a trust properly if one had to wait a very long time. When I referred on the previous occasion to the very long time one had to wait. I was thinking in terms of guidance of the Charity Commissioners which is required on various matters, and certainly in regard to applications for registration where an awful long time elapses. It may well be—I hope so—that the Select Committee would not only look at matters that could be excluded from the Charity Commissioners but see really whether it is fair to put upon them, with their present personnel and establishment, duties which they frankly cannot fulfil promptly—it may well be because of their lack of numbers and of strength.
There is only one other observation that I should like to make, and I make it with the usual deference that Members of this House always pay to the noble Lord, Lord Renton, because of his precision in regard to his interpretation of statutes, instruments, and orders, and his punctilious way of adhering faithfully to every word. He said—and this is an important provision—that in this Bill there is the power to vary the amount involved, the £1.000, by a statutory instrument at the instance of the Minister and within the limits of increasing inflation. He said, and I listened carefully to his words, "provided the assent of both Houses is obtained". Of course there is the negative procedure in his Bill, and it is not the assent. Indeed, it would have to be a negative vote which would defeat the order. This is a small point and I know that the noble Lord would have helped me out if I had made that slight error, and I therefore hope that he will excuse me if I raise the point because of what he said.

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Generally, if I may say so from these Benches, it is so sensible to give this Bill a Second Reading and to hope that the Select Committee will come back to us with guidance upon how we ought to deal with these measures, added to, I am sure, by the wisdom of the noble Lord the Minister who will answer this debate. I repeat my own personal thanks and those of my noble friends behind me to both the noble Lord, Lord Renton, and the noble Baroness, Lady Faithfull, for seeing that we deal with something that ought to be dealt with.
5.19 p.m.
Baroness Faithfull: My Lords, if in the field of national and international politics all those who disagree, as do my noble friend Lord Renton and I over this Bill, yet remain on the best possible terms I suggest that we would all live in a more pleasant and peaceful world. I do not agree with this Bill, but because there is controversy, because it is supported by Her Majesty's Government—and I thought that perhaps the noble Lord, Lord Elton, would be pleased to hear me say this—and that it was accepted in another place, I shall vote "Content" to Lord Renton's Second Reading to enable my noble friend to move his Motion to refer this Small Charities Bill to the same Select Committee which will deal with the Parochial Charities (Neighbourhood Trusts) Bill dealt with in your Lordships' House on 30th June.
I will not detain your Lordships, but I disagree with the Bill, first on grounds of principle. I contend that it offends the basic principle of charity law on which donors have relied; namely, that a charitable trust cannot be allowed to fail. The Charity Commission argues that the Bill enables trustees to act voluntarily, but the action which the Bill authorises breaks faith with the donor, who believes a gift to be made in perpetuity, altering the terms of the trust on a cy prés doctrine if the terms laid down became impracticable. I submit that trustees should not act voluntarily. They serve voluntarily, but should surely act within the orbit of the law.
I am sure that Clause 6 of the Parochial Charities (Neighbourhood Trusts) Bill, will be mentioned. This clause was written into the Parochial Charities (Neighbourhood Trusts) Bill. Clause 6 gives the power to wind up certain charities simply because the reviews carried out following the Charities Act 1960 showed there to be not more than two or perhaps three little charities in the country, which were miles from anywhere. They were mostly on the Yorkshire moors and could not possibly be amalgamated into neighbourhood trusts. Therefore, the clause was put in only as a matter of last resort. But in principle one does not agree that the law can be interpreted as winding up a charity unless it is absolutely a matter of last resort.
Secondly, so far as I can see, there is no knowledge of exactly how much money would be involved. If wisely administered on a continuing basis we do not know how much over the years would be lost to charity. Is there a classified comprehensive record of these charities?
Thirdly, I must press the Minister who said, on 30th June, in column 396, that most trusts had been adapted to present-day conditions and therefore
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trustees, the commission and the public would know exactly what they were seeking to destroy. Is that so? I have not been able to find up-to-date lists of the small charities.
Research workers have looked into the question of the number of small charities and the figures do not quite accord with those given by my noble friend Lord Renton. The research workers tell me that there are 30,000 small charities with an income, if amalgamated, of approximately £1 million.
I suggest, as I have suggested before, that these small charities would do well if they were amalgamated into parochial charity neighbourhood trusts. They consist of very small amounts, but wisely invested and amalgamated every mickle makes a muckle and over the years these trusts, amalgamated together, might well be profitable and give very constructive help which cannot now be given to those in need.
I agree with my noble friend, Lord Renton, that the Bill which I brought before your Lordships was for the poor, though not all these small charities are for the poor. This is something which the Select Committee would do well to consider.
During our last debate on 30th June I pointed out that for the local authorities to set up parochial charity neighbourhood trusts would cost the local authorities approximately £2,000 a year for two years. I have now before me the costing of this, which was carried out by a senior local government officer who also carried out a review in the area where he works. He has consulted other people who have carried out reviews and they have agreed with his costing. The only difference is that this was costed two years ago and therefore the figure may be a little more now because of rises in salaries, secretarial expenses, paper and so on.
If the Select Committee finally decides in some way to make joint use of both these forms of charity there need not be great expense, according to local authorities. My noble friend the Minister said that reviews would have to be carried out. I am not sure quite what he meant by that, because reviews have been carried out and have been dealt with. It is only a question of considering the work that the reviews have already done.
My noble friend Lord Renton made certain points about law and administration. They are two separate matters; nevertheless, the law cannot be administered without good administration. I believe he is quite right in hoping and thinking that the Select Committee, while looking at the whole question of these charities, will also, for the sake of the Charity Commission, look at administration. To pass good laws which cannot be administered seems to me to be a waste of everybody's time and causes frustration to all those concerned. I thank my noble friend Lord Renton for co-operating with me. I hope the House will give the Bill a Second Reading and will later agree to my noble friend's Motion.
5.29 p.m.
The Parliamentary Under-Secretary of State, Home Office (Lord Elton): My Lords, it is very appropriate that the Bill should be introduced by my noble friend Lord Renton, a Member of this House who, in another place, was largely responsible for a major reform of

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charity law, the Charities Act 1960. I believe this Bill will command the more respect because it is sponsored by someone with a deep knowledge and understanding of the problems facing those who administer charities. He has rightly reminded us that it comes to us with a most respectable provenance.
My noble friend has set the provisions of his Bill very clearly before your Lordships and I do not intend to detain the House too long in setting out the Government's views. I believe they too are pretty well known to your Lordships' House. The House will be well aware that of the 144,000 charities currently registered with the Charity Commissioners, it has been estimated that well over half have an annual income of less than £100. We have heard how many who are unable to spend capital are unable to carry out the terms of trusts endowed perhaps hundreds of years ago. The fall in the value of money has meant that once-sizeable, and therefore useful, endowments can now be worth very little. There are some charities which have as little as £1 to dispense in a year.
Of course, small charities may seek to alter their purposes under the principles of cy-prés and to merge with other small charities within the parish, or in neighbouring parishes so that with their resources combined the new charity can make an effective contribution to the community. There are some charities, however, as my noble friend Lord Renton has explained, where the income is now so small that in whatever way it is administered or dispensed it can no longer serve a useful purpose. In these cases the objects of the charity could be as well served by a once-and-for-all recourse to capital.
This Bill, as we have heard, would enable the trustees of small charities, with a permanent endowment worth £1,000 or less to expend the property of their charity. The word "enable" is important here. The Government, as I have indicated to your Lordships on a previous occasion, believe that those who administer voluntary bodies, such as the trustees of parochial charities, should as far as possible be free to run their charities in the way they think best. It is not, nor should it be, for those outside the charity to tell the trustees their business. For that reason, I believe it is right that the Bill before us today departs slightly from the recommendations made by the Goodman and the Expenditure Committees when they looked at the possibilities of small charities winding themselves up in this way.
Both committees envisaged a more active role in the process for the Charity Commissioners. The Goodman Committee thought there should be a permanent local committee under the chairmanship of a representative of the Charity Commissioners to sanction this expenditure. The Expenditure Committee recommended that the enabling power should reside with the Charity Commissioners. It seems to me appropriate that this enabling power should rest with the trustees of the Charities (subject of course, to the safeguards already provided by the 1960 Charities Act) for the proper administration of their funds. I know, because we have consulted them that the Charity Commissioners agree with this view. It would be entirely at the discretion of the trustees whether they exercised the powers given to them under
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this Bill. At this stage, of course, we have no way of knowing how many would do so. I think, therefore, it is a mistake to speak, as some have done, of the potential destruction of all small charities.
I should be happy to commend this Bill unreservedly to your Lordships' immediate attention were it not for the views already expressed in this House on both this Bill and that introduced by my noble friend Lady Faithfull. Both Bills operate on areas of the same problem and, in one respect, by the same means. As I said when we were discussing her Bill, we therefore accept the arguments for referring both Bills to a Select Committee of this House where they can be given the serious and detailed attention that they deserve.
How I agree with my noble friend who said that the condition of the world would be greatly improved if we conducted our affairs in all international respects in that way—even the laws of Wimbledon. The terms of reference of that Committee will, of course be the two Bills themselves. It will be for the Committee to interpret their ambit and I am sure that they will take due note of the comments on this by both my noble friend and by the noble Lord, Lord Mishcon. I ought in addition simply to draw your Lordships' attention to an important distinction between the Bill introduced by my noble friend Lady Faithfull and that brought before us today by my noble friend Lord Renton.
Today's Bill is a simple measure designed to help those trustees who believe that the objects of their charity can be better served by a once-off recourse to capital than by spending a tiny income, or by merging with another charity if an appropriate one is available. Last week's Bill would, on the contrary take the responsibility for the administration of the individual charity away from its trustees and, after the intervention of the local authority and the Charity Commissioners, entrust it to the new neighbourhood trust. I believe that in that respect this Bill reflects the spirit of the original givers better than the other.
I ought, I think, to make one other comment. It has been suggested that this Bill will encourage a harmful dissipation of charitable funds. We do not think it will. We believe that the duties that trustees already have towards the property of their charity will mean that they would only use the power provided by the Bill, if the income available to them is not large enough to be of significant use. Of course, many will amalgamate with other charities, but there are circumstances in which amalgamation simply is not possible because no similar charities are available locally to amalgamate with, Even were they to amalgamate, in many of these cases the joint income of these trusts, now spread over a larger area than previously, could still be too small to be useful.
Also, I have to confirm to my noble friend Lady Faithfull that there is no complete and up-to-date catalogue available for her to refer to; and that answer really answers the next of her questions, which was why it would be necessary to carry out reviews. Reviews have been carried out, but by no means all of them are complete and there are many gaps in our knowledge which would need to be filled. As to the cost of carrying out those reviews, I can only say that

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I would be very interested to see it; as, no doubt, will other members of your Lordships' House. She asked me to substantiate something which I said in column 396. I am not absolutely certain what it was, but the substance of what I said that she could have questioned was founded on the annual reports of the Charity Commissioners year by year. The proper place to consider this Bill further is the committee room.
May I conclude by thanking all those noble Lords present for their unflagging interest in this subject and to thank both my noble friends for returning to the charge so frequently, so well, so courteously and so succinctly. I hope as they do, that with the benefit of the conclusions of the Select Committee, it will be possible to arrive at some sensible conclusions to the problems of small charities.
5.37 p.m.
Lord Renton: My Lords, in replying to this short debate, I should like to thank the noble Lord, Lord Mishcon, and my noble friend Lady Faithfull for the critical support which they have each given to the Bill. I should like to thank my noble friend Lord Elton for his enthusiastically positive support and for the way in which he has clarified some issues which have arisen. I should like to say to Lord Mishcon that I welcomed very much the expression he used when he said that the Select Committee would be wise to consider "the side issues" which arise on both Bills, including the administrative implications. I am sure that that sums it up well and is right. May I say that I am always glad to be corrected when I have made a mistake; but nobody corrects one with better grace than the noble Lord, Lord Mishcon. He is quite right that, although in effect both Houses would have to consent, the procedure is not that of the order and the affirmative resolution but that of the prayer and annulment.
So far as my noble friend Lady Faithfull is concerned, I would ask her to bear in mind that trustees of small charities are in a real dilemma. On the one hand, they are required to carry out the purposes of the trust and, on the other hand, find themselves unable to do so except by using capital. It is that dilemma which this Bill seeks to resolve—and so, in a smaller way, I gather, does Clause 6 of her Bill. So there is not so very much difference between us on that Surely my noble friend Lord Elton was fully justified on this point when he said that the Small Charities Bill better reflects the wishes of testators. Unless the capital is used, the wishes of the benefactor cannot be carried out at all. That is the situation in which some small charities find themselves and that really is the essence of this matter.
There is only one other point that I should like to mention: that is that the noughts have become a bit misplaced on several occasions during this debate. I learned from the noble Lord, Lord Elton, that it is not £1,000 of income from land which makes up half the charities in this country, but only £100. So I mistakenly added on a nought when I said it was £1,000. As to the reference made by my noble friend to £3,000 cost per local authority, the reference is two years old but even though it is two years old I think something has gone adrift there, because I can imagine some large counties in which as much as £30,000 might well be needed to carry on all the administrative
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work which could arise in working out the neighbourhood trusts on her Bill. However, be that as it may, this, among many other things, will be a matter for the Select Committee.
On Question, Bill read a second time.
Lord Renton: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the Bill be committed to the Select Committee to which the Parochial Charities (Neighbourhood Trusts) Bill [H.L.] has been committed.—(Lord Renton.)
On Question, Motion agreed to: Bill committeed to the Select Committee accordingly.

Invalidity Benefits for Married Women
5.42 p.m.
Baroness Gardner of Parkes Baroness Gardner of Parkes rose to ask Her Majesty's Government whether, and if so when, they will take steps to end the ineligibility of married women for invalid care allowance and the household duties test for non-contributory invalidity pensions for housewives.
The noble Baroness said: My Lords, my Question today is on the ineligibility of married women for invalid care allowance and the household duties test for housewives' non-contributory invalidity pensions. It seems to me particularly appropriate that these matters should be before us for detailed discussion today. The newspapers, radio and television all have extensive coverage of the new round of cuts amounting to £500 million in public spending—£100 million of this to be in the Health Service. Should we pause and ask: what is the point of considering the needs of any specific group in the community now? On the contrary, I would put it to your Lordships that this is the very moment for us to be thinking and planning for the future, It is essential that because of the present financial situation we do not lose sight of our targets.
To end the discrimination against married women in these two cases must be right. There can be no doubt about that. Her Majesty's Government have stated through a number of ministerial replies that they take this view. In reply to my question on 25th March 1982, the noble Lord, Lord Elton, said:
"the Government would prefer to be able to extend this allowance … when resources become available to us to consider those priorities" [Official Report, 25/3/82: col. 1061.]
Between the two parts of that sentence his words were:
"but that preference must be put in competition with other considerations".
So my intention today is to put the case clearly and to enter that competition for future consideration.
For the purposes of the debate today, I would make it clear that the conditions applying to married women also apply to cohabiting women; and it will save time not to have to make that point repeatedly. Women, on the other hand, who are widowed, separated or divorced, are not classified as married in these cases of benefit assessment.
First, the invalid care allowance is a weekly benefit of £19.70 paid to someone who does not have full-time employment but instead cares for the disabled

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person in receipt of atttendance allowance. The attendance allowance for full-time care is £26.25 per week or, if lesss attendance is needed, £17.50. When the benefit began it was paid only to carers who were close relatives. The last Government in 1981 extended the benefit, and this was a big step forward. The extension covered anyone caring for a disabled person except a married woman. The married woman loses not only her £19.70 per week but also the benefit of National Insurance contributions which would be paid with the benefit and would be of value in safeguarding her own retirement pension.
For the invalid care allowance the estimated number of married women currently unable to claim this allowance is 110,000, as against the present number in receipt of this benefit: only about 8,000 in all. This shows the size of the problem and makes clear the extent of granting eligibility to married women, but it is not a simple mathematical exercise of just saying that by multiplying the number of applicants by £19.70 one could discover the cost. There would be amounts to be offset, and the Government's recent estimate indicated that £60 million is nearer the sum needed. In a good number of cases the actual money coming into a household would remain unchanged but the allocation or the claim basis would differ and the work done by the married women in caring for the disabled person would receive the rightly deserved recognition.
Much emphasis has been laid on the transfer of more care in the community, and very interesting new schemes are being developed. Here in Westminster the City Council has a pilot scheme of home care workers, and day centres for the elderly are being planned. Other areas—for example, Croydon—have day hospitals and much is being done to provide holidays (or, more accurately, essential breaks) for the carers, to enable them to continue in the dedicated and demanding task, the strain of which can have disastrous effects on the physical and mental health of the carers.
It may be of interest to your Lordships to know that care in the community is much more cost-effective than other means. Westminster City Council finds that it costs over £100 per week to keep a resident in Part III accommodation. The DHSS today informed me that it costs more than £200 per week to keep a patient in a geriatric ward; and I would remind your Lordships that geriatric wards are part of the National Health Service, and that service is now facing a cut of £100 million. The cost of caring for relatives in their own homes is much lower than any of these other costs.
Many married women have felt morally obliged to give up full-time employment to undertake the care of their loved ones, and at this very moment some of them may be considering doing so. I would ask the Minister to take back to the DHSS the thought that they might consider extending the invalid care allowance in the very near future to those who are actually about to give up work and undertake the care of a disabled person. Obviously one would need to assess an exact date from which such a change would be made, and there are always the borderline cases who just miss out and feel themselves aggrieved; but it would be a start in the right direction and a recognition
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of the sacrifice involved. It would also be in line with the current aim of community care, keeping disabled people out of hospitals and homes and actually saving costs on those alternatives and giving the disabled people a better life.
The other part of my subject refers to the household duties test for married women who wish to claim the married women's non-contributory invalidity pension. A man or single woman who has been continuously unable to work for 196 days because of ill health or disability and who does not qualify for contributory invalidity benefit can receive non-contributory invalidity pension (now £19.70 a week). He or she can get that simply by having a GP certify that the person is incapable of paid employment. The married woman cannot claim non-contributory invalidity pension. She has to claim housewives' non-contributory invalidity pension and prove that she is unable to work and to do basic housework. She faces the household duties test.
The first step is to complete an application form. I have a copy here. It is triple-fold, in four parts and with 25 questions, of which Question 21 is the least satisfactory and the hardest to assess. Question 21 is a whole page in itself. There are four headings and the applicant is asked to tick the boxes which best describe how she can cope "By Yourself", the words being in large black type. The questions are:
"Able to do it all.
Able to do most of it.
Able to do a little of it.
Not able to do it at all".
Then there are the headings, the first of which is Shopping:
"Can you—
Decide what to buy.
Get to the shops.
Collect what you want in the shops.
Get the shopping home".
She has to tick one of those for each of the headings.
The next heading is Meals:
"Can you—
Decide what food to prepare.
Prepare food for cooking.
Move pots, pans etc. about as necessary, e.g. from shelf to table and cooker.
Cook food.
Wash up".
The next heading is Washing and Ironing:
"Can you—
Do the washing.
Remove it from machine or sink.
Dry it.
Do the ironing".
Again, you have to tick one of those items. The final one is Cleaning.
"Can you—
Dust and tidy.
Use a vacuum cleaner or carpet sweeper.
Clean.
Polish.
Clean windows".
I should have to reply that I am not able to do a lot of these things, and I am not sure whether I would be able to complete the form, because it is a fairly complicated one.
The percentage of refusals of people who apply is quite high. Of those who are refused only 30 per cent.

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appeal but the percentage of appeals that are allowed is very high since 40 per cent. of appeals are allowed and are re-classified and those people are given the housewives' non-contributory invalidity pension.
It is the principle of this household duties test that is wrong. The more a woman tries to help herself to do the most basic things, so as to retain a degree of independence, the less hope she has of getting the HNCIP. Even in the very harsh and provocative article by Peregrine Worsthorne in the Sunday Telegraph, he stated that previous societies had differentiated between the deserving and the undeserving poor and,
"it seemed best to concentrate on those who might benefit most, i.e., on those prepared to help themselves".
I do not at all agree with the tone of his article because, after all, who is to decide between who is deserving and who is undeserving? My own experience in dental practice and in social service work has shown me that often the most deserving are the least demanding, so it is very complicated. But even on his terms I know that the household duties test is directly in conflict with any encouragement towards self-help.
I am convinced that this is not a party political matter. In fact, I have evidence from the Conservative Women's National Committee on their proposals to the Chancellor for the 1983 Budget concerning the invalid care allowance. They wanted that to be phased in, They recognised that substantial costs were involved, but they recommended that steps be taken to phase in the invalid care allowance for married women.
I know that there are many more points to be made on this subject; and I know too that the speakers who ably follow me will do much to cover the subject. I should appreciate the opportunity now to thank your Lordships for taking part in this debate on this Unstarred Question. I shall not have an opportunity to speak later, so I should like to thank the other speakers in advance. I should also like the Minister to know of the genuine concern on this subject and to understand that we will continue to press for these changes in the future.
5.55 p.m.
Baroness Lockwood: My Lords, I rise sadly to support the noble Baroness in her Unstarred Question, because the discrimination against married women in the awarding of the invalid care allowance and the housewives' non-contributory invalidity pension has gone on for far too long. I hope that the noble Baroness who is to reply from the Government Benches will have some encouraging news for us. I am not sure whether to feel pleased that she is there to reply to this debate or to be concerned for her lest she should have to give us the same discouraging response that we have had in the past.
But the fact is that this discrimination has been going on for a long time and it is based on a false assumption. It is based on the assumption that all married women are financially dependent on their husbands; whereas of course as we know, and as I have said before in this House, that is not true because 61 per cent. of married women between the ages of 16 and 59 are in paid employment.
The noble Baroness, Lady Gardner, mentioned that
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this is an all-party issue—something that we are concerned about in all parties—and I would agree with her. I would tell her that as long ago as early 1977, in my capacity as the then chairman of the Equal Opportunities Commission, I wrote to the then Secretary of State of another administration pointing out the inequities of this system and suggesting that it was time that we regarded as questionable this assumption that married women were dependent on their husbands.
Again, as the noble Baroness indicated, many of the married women who are not receiving the housewives' non-contributory invalidity pension gave up jobs before they became invalided and before they needed to remain at home. The reason why many of them do not qualify for a contributory benefit is probably the encouragement that housewives were given previously to opt out of paying the full national insurance contributions.
Certainly the major part of the women who are caring for invalids have given up a job in order to care for either a relative or a friend. Research undertaken by the Equal Opportunities Commission indicates that three times as many women as men care for invalid relatives and we know that the majority of those women are married. They are usually mothers, daughters, sisters, wives or daughters-in-law. Those are the major groups of carers in the country.
In relation to the housewives' non-contributory benefit, no other group of people is subjected to the two tests which are imposed upon the housewives. First, the test of being incapable of undertaking paid employment is a test that all who have a non-contributory pension have to undergo. But no other group has to undergo the second test of being incapable of carrying out normal household duties.
The real problem is that nobody really knows or nobody agrees what normal household duties are. We have had some information from the noble Baroness, Lady Gardner of Parkes, about the success rate of those who appeal against the test. It is quite clear that different tribunals and different doctors have different views about what is meant by being capable of carrying out normal household duties.
The real point about this is that married women who might otherwise have some financial independence become totally dependent on their husbands. As a consequence, many of them often try to undertake more tasks than they are physically capable of, whereas if they had the assistance of benefit they would be able to bring in some outside help to assist them with the additional expenditure that being an invalid involves. The report of the National Insurance Advisory Committee in 1980—this committee was the body which then advised the Government on these matters—recognised that the household duties test was discriminatory. The report went on to say that it would become increasingly seen to be discriminatory. Therefore, the National Insurance Advisory Committee recommended an alternative test for HNCIP. This would be related to the normal activity of individual claimants, regardless of their sex, and could be considered to be either employment or housework activity.
The report then went on to suggest that if the department found this approach to be impracticable

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within the framework of the social security system, consideration should be given to phasing out the test altogether—initially, perhaps, on the basis of age group. So far, however, nothing has happened, except for a protracted departmental review which is, I understand, still under way. On 13th July of last year, exactly a year ago, in a Written Answer to a Question in another place Mr. Hugh Rossi, the Minister then responsible, said at col. 365:
"The departmental review of the household duties test for housewives' non-contributory invalidity pension is nearing completion".
As I say, that was exactly a year ago, yet we have heard nothing further. Apparently we are still awaiting completion of that review.
I turn now to the invalid care allowance, which again is equally anomalous. It is available to single and married men and to single women but it is not available to married women. Some time ago, a rather sad example was sent to the Equal Opportunities Commission and we submitted it to the National Insurance Advisory Committee. A man wrote to inform us of the difficulties he and his wife were experiencing. For many years his wife had suffered from multiple sclerosis. Her condition had become so bad that their daughter had had to give up paid employment to look after her mother. The daughter happened to be single. Therefore, she was able to draw invalid care allowance. However, she was a young woman and was shortly to get married. Thereupon she was informed by the Department of Health and Social Security that because she was getting married her invalid care allowance would be removed. As the husband said, the alternative to care by the daughter was that his wife would have to go into residential accommodation.
The noble Baroness, Lady Gardner of Parkes, indicated some of the costs involved in residential accommodation. The difference between the award of invalid care allowance to all women, irrespective of being married, and the cost involved as a result of residential accommodation is enormous. Surely it would pay the Government to make sure that as many people as possible are kept at home, though with some recognition of the sacrifices which are being made. In his Written Answer to the same Question in July of last year, Mr. Rossi also said:
"The extension of invalid care allowance is one of a number of competing social security priorities which can be considered only when the resources have become available".
This is a response which we are continually receiving. I suggest that the £60 million involved in paying invalid care allowance to those married women who are caring for invalids would be money well invested. Certainly it is not a great sum of money when it is compared with the bill for social security benefits, which I understand totals something like £20 billion a year. If, therefore, we look at the savings which could be offset as a result of caring within the community the figures could probably be revised even more. The often-stated policy of the Government is community care. As we have seen, community care means care within the family. That in its turn means care by women. When they look at the costs involved, I wonder whether the Government take fully into
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account the alternative costs involved in residential accommodation.
Finally, as well as the financial burden there is a very real social burden. Tremendous strains are placed on members of a family where there is either an invalid or a carer. We are suggesting that the payment of these two benefits to married women, thereby removing discrimination, would not entirely remove the social strains, but they would at least lift some of the strains and help those women once again to feel more independent and more like individuals in their own right.
6.8 p.m.
Lord Banks: My Lords, I should like to join in thanking the noble Baroness, Lady Gardner of Parkes, for asking this important Question this evening and also for putting the case behind it so clearly. In pressing for the extension of the invalid care allowance to married women and for the abolition of the household duties test for the housewife's non-contributory invalidity pension, the noble Baroness has the full support of my party and also that of my noble friend Lord Kilmarnock, who has asked to be associated with these remarks. We have raised these issues on many occasions in the past. Indeed, the Alliance manifesto at the recent general election contained a firm commitment to take these two important steps. However, I fully appreciate what has been said by both noble Baronesses: that this is a matter which raises concern in all parties.
It is estimated that there are 1.4 million people who do not live in residential institutions but who require extraordinary assistance or attention. The application of the policy, to which reference has been made, of care in the community would add to that number. We want to see more elderly people and more mentally handicapped people able to live in the community instead of in institutions. If we are to do that, then we have to see that those people themselves have an adequate income and also that there is an adequate income for the carers.
Research shows that the majority of carers are women and the majority of those women are married; 70 per cent. of married women aged between 35 and 54 are in jobs. If they become full-time carers, they lose income and they may lose pension rights. So we see that married women constitute the majority of carers, that 70 per cent. of married women normally work, and yet that invalid care allowance does not apply to married women. That does seem to be an absurd situation. It derives, of course, from the old fashioned idea that all married women are at home, ready and waiting to undertake the role of carer with no recompense.
As we have been told already, the availability of invalid care allowance is restricted to those who look after a person who is in receipt of attendance allowance; attendance allowance is confined to those who need frequent attention and help with bodily functions. Looking after an elderly parent who cannot look after himself or herself but who does not qualify for attendance allowance does not qualify the carer, married or not, for invalid care allowance. The Equal Opportunities Commission have suggested that there

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ought to be a carer's allowance paid at a lower level to cover those people who cannot qualify for invalid care allowance.
However, invalid care allowance itself is at a level that is scarcely adequate, at £19.70 per week. In 1981, the average weekly earnings for women were £91.40 gross. At that time, invalid care allowance was £17.75 per week, which indicates the large gap even when the attendance allowance of £17.50 paid to an elderly or disabled person in need of daily attendance only is taken into account. Married women are excluded from even this inadequate benefit.
We want to move towards a non-earner's benefit or credit at an adequate level for all who are non-earners for an acceptable reason. Another example of the assumed dependence of married women upon their husbands is the household duties test for the noncontributory invalidity pension, with which this Question also deals. The assumption is, that if a married woman earns, it is a fortuitous "extra" or pocket money which the State has no obligation to replace when disability prevents work. As we have heard, it is only if household duties cannot be undertaken that the benefit is available to married women.
The idea that a married woman is dependent financially upon her husband runs right through our social security system and also runs through our income tax allowances system. We have to eradicate that idea and treat men and women on an equal basis, regardless of marital status. The Government could begin this process and help to promote care of the community by returning an encouraging answer to the Question of the noble Baroness this evening.
6.14 p.m.
Baroness Lane-Fox: My Lords, in the past your Lordships have very often shown favour to an unfair case even when the tide is against it—and especially if it concerns those who are badly placed to speak up for themselves. It is gratifying that, with her usual sagacity, my noble friend Lady Gardner of Parkes has put before the House two classic cases of unfairness—both of which the Disablement Income Group has fought to correct over at least the past 10 years.
Neither case is new to your Lordships. On the invalid care allowance, the noble Lord, Lord Banks, during the debate on the Charter for the 80s in November last, spoke of the denying of invalid care allowance to the married or cohabitating women as an unjustifiable discrimination. The normal household duties test to establish the housewife's right to noncontributory pension was referred to as being an "injustice" in a Question in my name recorded by Hansard on 3rd March 1982. Alas, neither of these cases has improved since then.
In a period of retrenchment, and while I for one admire my party's dedication to taking the measures necessary to secure the remarkable reduction in inflation, it is not pleasant to parade two cases which call for money. My noble friend Lady Gardner of Parkes must at heart feel this same inhibition—yet here are two cases with little chance of struggle for themselves calling out for our support. Let us first take the invalid care allowance.
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It cannot be anybody's wish to be lumbered with a severely disabled person to care for; to take the full burden of it and change the pattern of life to allow for it. Yet the fact is that a high proportion of disabled people are living in the community. They do so through the generous spirit of friends and relations. It was indeed wise to introduce the invalid care allowance to repay some of these good, kind people. To begin with, the beneficiaries of the allowance had to be a close relative, provided this was not a married woman. As my noble friend Lady Gardner of Parkes mentioned, in 1981 this was extended to include anyone who looked after such a disabled person, unless that carer was a married or cohabitating woman. The irony is, that the majority of disabled people cared for at home are looked after by their nearest female relative, who is often married.
The present method of non-payment of ICA seems to suggest that a married women is supported by her husband, even if she has to give up her work to look after him when he is no longer able to work or support her. It is different when the position is reversed. I have known of two husbands who left work to take care of their disabled wives. They were eligible to receive the £19.70 a week, but I know of married women—including two who are wives, and one of them a mother—who, although they have sacrificed their careers in order to shoulder this responsibility, cannot draw the allowance. The rest of us really should not take all this for granted. By their own efforts, such people can be saving the state £150 a week in residential care charges. With the way the law now stands, far from encouraging their efforts, the state is taxing them for their loyal love and devotion. Without wishing to be over-sentimental, this is not a situation that any of us want.
As for the normal household duties test, its very basis is farcical. It is used in order to establish the eligibility for the housewives' non-contributory invalidity pension by showing inability to accomplish various household activities, splendidly described by my noble friend Lady Gardner of Parkes. To pass this test, one has to fail, not to succeed. The campaign against this test describes it as unfair, discriminatory and humilitiating—and it is not less than that.
After all, both married men and single men win the right to this pension if it is proved that they are unfit for paid employment. It is only married women who must undergo this extra, obnoxious household duties test. This seems like discrimination with a capital "D", for it classes married women as a separate category and implies that they are the kept slaves of their husbands—when in fact, today, many of them have held down important careers outside their home. For those who already have to overcome the sadness and indignity of the onset of some disabling condition, it is quite inhuman to pile on the agony by rubbing in their inabilities. The humane course to be taken with all of us who are disabled is not to be reminded, not to bewail what it is not possible to do, but to be encouraged and helped to do what is possible. In this age, surely, of sophisticated psychology it seems ludicrous that the law should stoop to such a cruel stupid test.
It is obviously my wish to welcome my noble friend Lady Trumpington on her first moment at the Dispatch Box, and to recognise too her very special

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inside knowlege about these two issue before us today. I plead with her to heed very closely the words of the noble Baroness who asked the Question and of the supporters, and ask that she will stir up the action required to sweep away such unacceptable regulations.
6.21 p.m.
Lady Saltoun: My Lords, I am most grateful to the noble Baroness, Lady Gardner of Parkes, for asking a question which I have been wanting to ask for a very long time. I am particularly concerned about the ineligibility of married women for invalid care allowance and also about the level of that allowance. Nowadays a very large percentage of married women work full or part time, and, as the noble Lord, Lord Banks, has said, they can earn substantial salaries. The hourly rate for a cleaner in London is now £2.50 to £3 an hour, which for a 40-hour week means £100 to £120 a week. In the Grampian region, where I live, the hourly rate for home helps is over £2 an hour or over £80 for a 40-hour week. Against such earnings as these £19.70 per week, to be increased in November to £20.45, for being in many cases on call 24 hours a day and seven days a week, seems ludicrous, and even more ludicrous does it seem that a married women forgoing such gainful employment to care for an invalid should get nothing at all, despite the fact that her sacrifice is in many cases saving the Government the cost of a hospital bed.
The average cost per resident per week of a hospital bed in Scotland in the year 1977–78 ranged from £107 to £132, and £55 a week was the cost of a place in a local authority old people's home. These figures take no account of capital costs, of building, which in Scotland in the years 1977–78 were £15,000 per place for residential homes and £30,000 to £50,000 per bed in a district general hospital. I got these figures from the social work services group in Edinburgh in May 1980. I am sorry that they are not more up to date.
Between January 1978 and December 1981 the retail price index rose by over 50 per cent. and now over 18 months later is still higher. With even a 50 per cent. increase on the figures I have given, and taking the interest rate at 11 per cent., the cost of keeping one elderly disabled person in institutional care in a local authority home or in hospital must, according to my calculations, be anything from £130 to £350 a week, although the cost of a bed in a geriatric unit is not quite as high as in a general hospital, but geriatric units are overflowing into general hospitals. In England I understand the cost of places in local authority homes is roughly similar, but tends to be higher for beds in general hospitals. With an estimated increase of 500,000 people over the age of 75 and 250,000 over the age of 85 by the year 2000, many of whom will require a considerable amount of care, this represents substantial expenditure.
I do not want in this debate to go into the pros and cons of home care as opposed to institutional care for the old and infirm, but I think it is generally agreed that it is better and more pleasant for them to remain in the community wherever possible. I believe that if the Government were to increase invalid care allowance to, say, £50 a week, and make it available to married women, they would not only right an injustice
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but would be taking a step towards solving what is going to become an immense problem over the next 16 years, while reducing the cost to the health service at the same time.
The noble Baroness, Lady Gardner—I hope she will correct me if I am wrong—mentioned a figure of 110,000 married women who should be eligible to receive invalid care allowance at present. At £20.45 per week this would only cost the Government £2¼ million, and even at £50 a week it would cost the Government only £5 ½ million, if my arithmetic is right. I know this is the worst possible moment to ask for more money for anything, even something that might save expense in the long term. While I fear that this afternoon I shall get a dusty answer from the noble Baroness, whose first tour of duty this is, I should very much like to know the Government's views on this matter and their hopes and their aims for the future.
Baroness Gardner of Parkes: My Lords, before the noble Lady sits down, perhaps I could just take up the matter of the 110,000 people. Apparently the calculation is not very simple, because it is not just the amount paid to them but also the amount of administrative staff that would have to be taken on by the DHSS to deal with them; and a number of other factors come into it. I have not had time to check the noble Lady's arithmetic on my calculator—I am afraid I would not be able to do it in my head—but, apart from that, it is not a simple mathematical calculation.
Lady Saltoun: My Lords, I thank the noble Baroness.
6.28 p.m.
Baroness Jeger: My Lords, we are greatly indebted to the noble Baroness who has raised this important matter, and I think it is worthy of very serious consideration by your Lordships. What we are trying to look at tonight is a very fundamental problem about the very roots of our social security system. I was very glad that the noble Lord, Lord Banks, referred to this. Our present system had its roots in Beveridge, Lloyd George, and some of it in the Elizabethan Poor Law. But society has changed fundamentally. Successive governments have tried to meet emerging contemporary problems as they manifested themselves and created their own pressures and their own pressure groups. The result has been that we are having a sort of patchwork in our social security system; we try to add on a bit here and take away a bit there, equalise a bit, and suddenly find that society has produced another problem and so there is an extra allowance, which nobody understands and half of those entitled to it do not know about.
The basis of this is of course the total change in our family pattern. I am so old that I can remember when many families had maiden aunts. There was always an Auntie Mary or Auntie Molly somewhere, unmarried, devoted, not particularly attractive or interesting, who would come and look after mother when she was having a baby, or generally take on the chores of caring for elderly relatives. One of the gaps in our social provision now is that we do not have maiden aunts—and thank goodness we do not, because what a rotten life most of them had!

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Nowdays marriage is much more popular, both marriage and unmarriage, but at least the majority of people do have a try at getting married. The results of all these changes have not been taken on board by our social security system at all. We shall be having debates like this time after time, as we try to look after first one group and then another. I very much hope that we shall be able at some time to take a longer look at all the anomalies which we are creating. There seems to be general agreement that we should do this and that we need a total overhaul, but that does not appear on even the distant horizon.
The subject we are discussing tonight is an example of failure to adapt. This applies to all parties and to many of the so-called experts. Beveridge based his plans on the concept of a conventional family unit when most married women stayed at home and looked after the family. Today the contrary is true. The majority of married women go out to work, at least for part of their married lives, but we still find in the House of Commons paper entitled Social Security Provision for Chronically Sick and Disabled People (HMSO 276) published in 1974, the following:
"Housewives are essentially married women who do not do paid work and whose normal job is in the home".
But that definition, on which so much of this legislation is based, no longer applies to the majority of married women in this country.
I admit that neither party has got this right, but, at the risk of disturbing the harmony that has so far manifested itself during this debate, I must point out that at least the Labour Party manifesto for the last election, on page 18, made the promise:
"We will abolish the household duties test for housewives' non-contributory invalidity pension and extend invalid care allowance to all those women presently excluded".
I am very sorry that we do not immediately have the ability to carry out that promise.
I looked through the Conservative manifesto and found a very caring reference. I quote from page 28:
"Most people who are ill or frail would prefer to stay in or near their own homes rather than live in a hospital or institution. Helping people to stay in familiar surroundings is the aim of our policy here in the community".
I welcome that and I very much hope that, with the help of noble Lords who have spoken tonight, some action will be taken to see that at least that is carried out, because what we are discussing tonight is surely the best way of helping people to stay in their own homes.
I was very glad that the noble Baroness, Lady Gardner of Parkes, referred to that dreadful form. I seem to remember a promise made years ago when the Conservative Party was in power that some of its top level assistants were to do a great swoop through all Government forms in order to simplify them and tidy them up. They were to make the print bigger and easier to understand. Certainly the form in question has not been so dealt with, and I will gladly offer to do it myself if no one else will.
But look at this position of the household test. I agree that I was connected with the party which was in power when some of these things were discussed, but we really were trying to find our way and we have got lost. Applicants are asked, "Can you clean your
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windows?" That is one of the most stupid questions one could ask. Is one referring to a little bungalow in the country with leaded panes? Is one referring to a picture window on the 17th floor of a tower block? They are also asked, "Can you wash up?" The answer might be, "I could if I had a washing up machine. But if my son gives me a washing-up machine I am disqualified because I can wash up". Another question is "Can you take care of the house?" "Yes, if I am living in a centrally heated flat with wall-to-wall carpeting and Hoover to push around, but not if I am living in a cottage in the country where I have to take a bucket out to get water and scrub the kitchen floor".
Then there is this idea that general practitioners should be the ones to decide whether a woman can carrry out general household duties. That is the biggest rubbish ever. I do not know any general practitioners who know anything about general household duties. Certainly my husband never did.
I hear a noble Lord, say, "Tut, tut." I do not know about the noble Lord, Lord Stone, and whether he gives a hand with the washing up, but that the question whether one of these disabled women should get her allowance or not should depend on some doctor popping in who has probably never done any of these chores in his life shows how both sides of the House must look at this again.
The main idea behind all our thoughts tonight, I am sure, is keeping people out of residential care and hospitals. I have been trying to look up some of the figures about this. Your Lordships have heard many figures tonight so I will not take long, but I am very worried about one figure. I am glad that we now have attendance allowances being paid to 299,981 people. This means that they need attention and attendance. But only 6,500 people are receiving the invalid care allowance. Therefore, if I was a statistician—which I am not, thank goodness—I would ask: why are 6,500 people looking after 299,981 people? There must be very many people in this country carrying out this caring work who are not getting rewarded, who are not being compensated and are not getting the help that they should and that they deserve.
We are still awaiting a report promised by Mr. Hugh Rossi. I hope the noble Baroness will be able to tell us something about that. I hope that she will also be able to tell us, when she is laying out the costs, as I am sure she will have to do, whether these costs have taken account of the money that these people are saving society by keeping their old and disabled people at home. They are saving what must be many hundreds of pounds each week in each case. That has been referrred to in particular by the noble Baroness, Lady Saltoun, and I am sure that a note will have been taken of what she said.
Basically we must face the point made by the noble Lord, Lord Banks, and referred to by my noble friend Lady Lockwood, that it is this concept of dependence that runs throughout our income tax and social security structure and which still, in this 20th century, denies women, whether married or not, individual status.
I conclude by saying that while we are trying to do the arithmetic of this we must all know that it is not just a question of arithmetic. The loneliness, the

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tension, the strain, and often the impossibility of marriage, all come into the picture of life for those who care at home, particularly for elderly relatives. I mention one case briefly of someone I know. She is a career woman who is very highly qualified in her profession and who gave up her job for a short time, as she thought, in order to look after her mother of 60 who was supposed to be terminally ill. That obstinate old lady lived to be 90. She has not long died. The daughter is now 70. She is ill and has been destroyed by those years of strain and caring. She could have pushed the old lady into a home and gone back to work. But, because she did not, the rest of her life is ruined. I should not have mentined that had I thought it was exceptional, but I do not believe that it is. We have to take on board that this sort of responsibility exists when we are looking at this matter. We must put into the balance not only the costs of the allowances and the money that we are asking for but the money that we are saving and, beyond money, what we are trying to do to help the lives of people whose capacities have been diminished by the responsibilities which they have taken on.
I look forward very much to hearing, not only tonight but in the future, what the noble Baroness, Lady Trumpington, has to say. I do not envy her. I know that she has every reason to understand this problem. We certainly congratulate her on her job. I am sure that all your Lordships would agree, looking around this House, that we could not manage without the numerous housewives here, all carrying out abnormal duties.
6.41 p.m.
Baroness Trumpington: My Lords, may I first thank the noble Baroness, Lady Jeger, my noble friend Lady Lane-Fox and the noble Lady, Lady Saltoun, for their very kind welcome. I am most grateful to them. I was rather tempted to say, as in the song in "Hello, Dolly!", "Wow, wow, wow, fellahs! Look at the old girl now, fellahs!"
I join those who have spoken before me in thanking my noble friend Lady Gardner of Parkes for initiating this debate. It is perhaps appropriate that I should find myself replying on behalf of the Government since I preceded my noble friend as the United Kingdom delegate to the United Nations Status of Women Commission—a position that I know she fills with the greatest distinction. Thus, we both have similar experience in working for the interests of women, and the subject she has raised today is of particular interest. The debate has certainly shown the depth of feelings involved.
It may be helpful to your Lordships if I begin by explaining something of the reasoning which has led to the present exclusion of the vast majority of married women from the invalid care allowance scheme. When the scheme was introduced in 1976, your Lordships will remember that it was part of a substantial and widely varying programme to improve what is done for disabled people through the social security provisions. Then, as now, limited resources dictated the scope of the benefit, and it was necessary to confine the help it afforded to those who were thought to need it most.
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It was considered that those in greatest need were the man and single woman who could not go out to work because they were needed at home on a full-time basis to look after a severely disabled person. A married woman separated from her husband and not being maintained by him falls into the same category and is as a consequence able to claim the benefit. The intention therefore was to provide a non-means tested income maintenance benefit designed to compensate this group of carers for loss of the earnings, which for the vast majority of men and single women is their only means of support. The married woman living with or being maintained by her husband, on the other hand, is not generally in this position in that either her husband will be providing for her from his earnings or, alternatively, if he is sick or unemployed, he will normally receive a social security benefit with which he can claim a dependency increase for his wife.
The Government are well aware of the case for extending entitlement to the allowance to all married women. But a change of this sort will be in competition with all other demands for improvements in social security and the social services, as my noble friend Lady Gardner of Parkes reminded us. The relative priority to be attached to this and to be applied to other changes is a fine judgment. Even then, the timescale within which we can think of improvements of any sort is entirely dependent on the success we have in strengthening the economy and creating the necessary resources.
I can assure your Lordships that we have given the question of the extension considerable thought and have sought to obtain a reliable indication of the costs involved. Accordingly, the department undertook a survey of recipients of attendance allowance last August to find out how many married women caring for severely disabled people would qualify if we extended invalid care allowance to all married women. Postal inquiry forms were sent to a statistically approved random sample of all recipients of attendance allowance. The results, when projected to all attendance allowance claimants, indicated that about 78,000 married women would become entitled to invalid care allowance if it was extended to all married women.
I ought to make it clear however that a significant proportion of the families concerned would gain little or nothing from this new entitlement. Some 9,000 families would gain nothing because the husband is already receiving a benefit which is paid at the same rate as or higher than the invalid care allowance, such as supplementary benefit or the increase in retirement pension for a dependant. The invalid care allowance is not payable in addition to such benefits.
Similarly 13,000 families would gain less than the full rate of invalid care allowance because they are already receiving other benefits which are paid at a lower rate than the allowance; namely, increases for a dependant in unemployment, sickness, and invalidity benefits. That leaves some 56,000 families who would gain invalid care allowance at the full rate—an estimate which, if anything, is likely to rise over the years. These figures have enabled the department to place a cost on the extension. The gross annual cost of paying the allowance to all married women would be of the order of £80 million, but the net cost, after

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allowing for savings from other benefits, would he about £60 million—a considerable sum, as your Lordships will appreciate.
In 1982–83 about £8 million was paid in invalid care allowance to some 8,000 carers—about 4,000 men and 4,000 single, widowed, divorced and separated women. The House will appreciate therefore that, on the basis of last year's survey, by extending entitlement to all married women, we would create a ten-fold increase in the scale of the benefit. The gross cost would be about £88 million per annum instead of £8 million and be paid to nearly 90,000 carers instead of 8,000. The increased activity would also require another 200 civil servants in the department.
May I remind your Lordships that we have not been inactive or unsympathetic as regards this benefit. In 1981 we introduced amending legislation which gave non-relatives who stayed at home to look after a severely disabled person entitlement to the allowance. This change benefited those people, including friends, who provided a valuable service but who, not being related, were not previously eligible. Last year we made a further improvement to this allowance by doubling the amount carers can earn without affecting their entitlement. By raising the earnings limit from £6 to £12 per week, we broadly restored the value of the original limit which had been fixed at £6 since the introduction of the allowance in 1976. This enables carers (where they have the opportunity to do so) to undertake more remunerative part-time jobs which, at the same time, do not conflict with the requirement of preceding virtually full-time care. These are small improvements admittedly, but they are attempts to do what we can within the limited resources available.
I should also like to take this opportunity to pay tribute to the valuable services provided by married women in caring for elderly and disabled relatives, often at great personal sacrifice. There is an enormous amount of caring within families which it is important to recognise and be grateful for; and it is right that we should express warm admiration for those who are doing the caring. I am only sorry—I have to say this to my noble friend Baroness Lane-Fox and to others—that I cannot be more forthcoming about extending entitlement to the allowance but we are well seized of the case.
I turn now to non-contributory invalidity pension and, in particular, to non-contributory invalidity pension for housewives. These benefits are more popularly known as NCIP and HNCIP respectively. As noble Lords are aware, the household duties test for HNCIP has been under review. We intend to make an announcement as soon as posible and I am grateful for the opportunity that my noble friend Baroness Gardner has given us at this stage to discuss in some detail this much criticised benefit. I should perhaps say, in relation to the review to which the noble Baroness, Lady Jeger, referred, that a year is a short time in Government for a review, as she well knows. Not only Governments send out rather cumbersome forms to be filled in. The forms should certainly never be discussed on a party political basis.
It may be helpful if I begin by reminding noble Lords of a little of the history of this problem. NCIP, which is limited to men and single women, was introduced in 1975 with all party support. It provided
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a benefit for people who did not qualify for sickness or invalidity benefit because their illness or disability prevented them from working and so from building up a contribution record. Before its introduction, only means-tested benefits were available for such people. In the early 1970s, there was a growing feeling that such a system could be unfair to those who had no opportunity to pay contributions in the first place. It was thought that these groups—mainly congenitally disabled people and people incapacitated in childhood—should have a benefit based on incapacity and not on a means-test.
It was out of this awareness that NCIP was born. The 1974 Social Security Benefits Bill which introduced NCIP excluded married women altogether. The then Government's argument was that though they intended to introduce a benefit for disabled housewives, that would have to be based on incapacity for housework. That would be a novelty for social security and the Government pleaded that time would be needed to devise the practical procedures. However, as a result of a Back-Bench amendment to the Bill, the then Government agreed to extend the benefit to married women who were incapable both of employment and their normal household duties. Even then, the Government argued it would take time to sort out the difficulties of this new concept.
In the event, it took two years. Part of the reason for the delay was perhaps that the Labour Administration had first got to find the money to pay for it—a difficulty that parties tend to forget when they leave office. But certainly the delay testifies to the problems involved in devising the household duties test and the technical difficulties in drawing up procedures.
It is in that context that the time taken to carry out the present review should be placed. Two years were needed simply to implement a rule which clearly many noble Lords find unsatisfactory, It does not seem surprising then that a little more time has been needed to reconsider the whole question and to explore the practicality and desirability of alternative approaches. It is perhaps unfortunate this work was not done before HNCIP was introduced. It is always easier to design a new benefit than to amend the rules for an existing one.
There is one other point about the history of HNCIP which is worth making. In preparation for this short debate, I re-read what was said in 1974–75 when the benefit was being discussed in Parliament. Very little was said in those debates about paying NCIP to married women on the same basis as it was paid to men and single women. That proposition has appeared since the original legislation. One reason certainly is the increased interest in the equality of the sexes. Another is that the practical difficulties of operating a household duties test, which were recognised by the Government at the time, are now appreciated more widely.
Suggestions have been made in the House today as to alternative approaches which would dispense with the need to administer the household duties test: I shall deal briefly with two of these. It will come as little surprise to noble Lords to hear me say that we cannot lightly contemplate the easy alternative, the one most often urged on us. Simply to abolish the household duties test and to extend NCIP to married women on

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the same basis as everyone else would cost about £275 million at present benefit rates. That is equivalent to nearly 8 per cent. of existing social security spending on disabled people. A sum of money of that size is simply not available either now or in the foreseeable future. As a practical alternative, straightforward abolition of the test, even on a phased basis, is not a runner.
A number of other approaches have been made to us besides those from the National Insurance Advisory Committee. I have already stated that we hope to make an announcement about the review as soon as possible. I hope that I have shown up to a point—time is going by—that it has concerned a most difficult subject that has had to be dealt with thoroughly and carefully. We do not have an unlimited purse. No Government ever do, although some have behaved as if they do. This Administration has had to do battle with the effects of that kind of spendthrift behaviour. So the limitations on our purse are strict, much as we would like it to be otherwise.
I should like to reiterate and join with noble Baronesses and the noble Lord. Lord Banks, in paying tribute to those who stay at home—the carers who look after the disabled, It might be thought that the cost of extending invalid care allowance to married women could be much reduced, even perhaps eliminated, by savings on institutional care. This is not the case. People go into long-stay institutional care because there is no one to look after them. Their families, if they have them, simply cannot cope. Paying married women for invalid care would not. I am afraid, change that fact. What we are doing to help people in long-stay institutional care is our Care in the Community initiative. This makes it possible for health authorities to offer local authorities and voluntary organisations continuing payments for as long as necessary to help these patients to be transferred to a more appropriate care in the community.
I have a great many pieces of paper before me from the department giving individual answers to many of the points that have been raised. Rather than detain the House, if I have not answered everything, I should be glad to write to any noble Baroness or noble Lord to supply any information that they may feel that I have not given.
In the light of some of the general criticism levelled at the Government over their attitude to help for disabled people, it may be appropriate to say a few words about our achievements in this area despite the grave economic situation that has lasted for the past four years. We have taken mobility allowance out of tax. By next November it will have increased by 90 per cent, since we took office in May 1979.
The invalidity trap will disappear this year. We have already solved it for people aged 60 or over. In November, it will be completely removed, benefiting a further 30,000 people. We have raised the real value of the therapeutic earnings limit by 20 per cent, since coming into office and will put it up by another 12½per cent, this November. Given the economic background, we can be proud of those achievements.

Theatre Museum
6.59 p.m.
Lord Strabolgi Lord Strabolgi rose to ask Her Majesty's Government why they have decided to cancel the plan for a theatre museum in Covent Garden in view of their previous commitment to this project.
The noble Lord said: My Lords, as this is the first arts debate that the House has had since the noble Earl, Lord Gowrie, was appointed Minister for the Arts, may I first congratulate him on his appointment, which I warmly welcome. I am particularly glad that we have the Arts Minister once again in this House. The noble Earl's right honourable friend Mr. Paul Channon, his predecessor as Minister for the Arts, always fought hard and successfully for the arts budget, as indeed did the noble Earl, Lord Avon. I hope that the noble Earl, Lord Gowrie, will do the same.
It was Mr. Channon who gave the go-ahead for the theatre museum project in Covent Garden, just about a year ago. The idea of a theatre museum has been supported of course by every Arts Minister up till now. The British Theatre Museum Association was formed as long ago as 1957. We are greatly concerned that the Government appear to have gone back on their original undertaking, and decided to cancel this splendid project. This is surely a breach of faith with all those who campaigned so hard for this museum. There has been a petition with 15,000 signatures which, I suggest, refutes the theory that the museum has only a few supporters. In particular, it is a breach of faith with those generous donors and benefactors who have given important and valuable material on the understanding that a theatre museum would be established. Fourteen major collections have been donated, for example, since 1975.
The whole collection is valued at about £23 million, of which only £100,000 has been spent by the nation on acquisitions. All the rest has come from bequests and gifts. These collections cover a wide range. There are the Diaghilev scenery and costumes, including Picasso's drop curtain for the ballet "Le Train Bleu" and five other important Diaghilev drop curtains, including those for the ballets "Firebird", "Sleeping Beauty" and "Prince Igor"; when these curtains were shown at Olympia recently they were insured for £1 million. There are the Gabrielle Enthoven and Harry Beard collections; the Hippsley-Cox circus collection, probably the finest in the world; the Marie Rambert collection, which was bequeathed expressly with this understanding; and a collection—to show the range—devoted to Jack Buchanan, as well as stage sets, costumes, play bills, programmes and much else.
What is now to happen to all this material? It is at present stored where much of it has been stored for some years in very cramped conditions at the V &A. The curator and his staff make every effort, but it is difficult for researchers and others to gain access in anything other than the most difficult conditions. Occasionally the V & A is able to put on a small temporary exhibition, such as the Images of Show Business exhibition. Some of the ballet costumes were shown at Liberty's some months ago, and more recently the V & A arranged a charming little

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exhibition around "A Month in the Country", for the centenary of Turgenev's death. These small shows give some idea of the richness, variety and scope of the whole collection, and some idea of what the public are being denied by shortsighted stinginess, and what the Prime Minister in another context has called "candle-end saving".
Because, my Lords, how much money is involved? About £4 million, I understand, spread over a few years, against which must be offset the cost of storing and maintaining the collection at the V & A, which amounts to several hundred thousand pounds a year, with design and planning costs which have been incurred to date of about £2½ million. Now that Covent Garden is such a wonderful success and the district attracts large crowds, I should have thought that the museum would be a great tourist attraction. There is a tremendous interest in the theatre and ballet, particularly among young people. There would be considerable opportunities, surely, for a plurality of funding from such sources as sponsorship, the profits from the sale of books, reproductions and souvenirs—as is done so successfully at the British Museum—and also possibly from admission charges for special exhibitions, which I personally have never been against.
Covent Garden is surely an ideal location, especially since it has been saved from destruction and has become a most attractive town centre and what a city, surely, should be like. Covent Garden has been connected with the theatre since the 17th centry. Not only are the Royal Opera House and Drury Lane adjacent to the Floral Market site, but several other theatres are in the vicinity; moreover, there is a thriving street theatre in the Piazza as well, which is very popular and attracts large crowds. I have the good fortune to work there myself, so I walk through it twice a day and I can vouch for that. The former flower market in Covent Garden is thus, in the view of most people who care about this exciting project—and there are many—an ideal place for the theatre museum. The building itself has tremendous possibilities, particularly the large lower ground floor. Theatrical exhibits, which of course are designed for artificial light, need artificial light to do them justice.
I am concerned, too, about the position of the lease. Contracts were to have been exchanged, I understand, last Friday. Does the noble Earl realise that we shall probably lose this site if the contract side is not tied up now? Can he not get a lien on the lease? Can he assure the House that he will not let this site be lost through delay?
Britain has always excelled, as we all know, in the art of drama since Shakespeare's day, yet we are still the last civilised country not to have a theatre museum. The Germans, for example, are at present spending £17 million on a theatre museum in Cologne. May I ask the noble Earl if he consulted any of his colleagues in the Government about this decision or any of the advisory bodies, or interested parties? Did he consult the chairman of the V & A's advisory council, or the V & A's director, or the Museums Commission? Did he consult the new chairman of the V & A's trustees, after the museum becomes independent? Or did he make an individual decision on his own? I hope that the noble Earl will be able to assure the House that he
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has had second thoughts, and has decided, on reflection, to rescind what appears to be a hasty and ill-considered decision. My Lords, I beg to ask the Question.
7.9 p.m.
Baroness Elliot of Harwood: My Lords, this House is well know for treating many subjects not from any party political point of view but because we all feel very keenly about certain aspects of our national life which transcend party politics. Today I am speaking in support of what the noble Lord, Lord Strabolgi, has said, with real feeling and real enthusiasm for this proposition. When we had the original debate on this subject and persuaded the Minister to ignore the proposals which were made by Sir Derek Rayner, now the noble Lord, Lord Rayner, we did, I thought, an excellent job. I hope very much that my noble friend Lord Gowrie, who I admire enormously and who has great courage and, above all, great interest in the arts, will show himself to be an independent mind on this matter and will be able to persuade his colleagues that this is an investment, a valuable investment, and that the returns on the money that is to be spent—and as the noble Lord, Lord Strabolgi, has just said, it is a very small amount—will benefit everyone.
As the noble Lord, Lord Strabolgi, has said, we have the finest collection of costumes and assets to do with the opera, the theatre and the ballet of any nation in the world. In the course of a long history of art in this country, we have also led the world in many of the aspects of the art with which we are concerned today. It would be a tragedy, not only for this country, but for all other countries interested in the arts if, once again, all this material was to be put into store or prevented from being shown to the public. Not only would it be a tragedy, but it would be a terrible waste of money.
We are now talking about a very small sum of money compared with the amount of money which is spent on many aspects of our national life. As I think the noble Lord, Lord Strabolgi, said, we have already invested something like £2 million—which, after all, is not a very large sum—which would be wasted if the work which has already begun—for the plans have been made and the arrangements have been made—were stopped. If it is started again in, say, two or three years' time, it will simply mean that the cost will be far greater. We all know that. We have all had experience in varous ways of the results of postponing things because we thought that it would be an economy or would be cheaper in the future.
In my experience I have had a great deal to do with local government. I can well remember spending money on important projects and people saying to me, "You are being very extravagant"; whereas in five years' time, if I had postponed the building or whatever it was on which I was engaged, it would have cost 10 times as much. In the meantime it was erected, it was being used and it was vital to the interests of the neighbourhood at the time—I am not talking about the arts now but about social works—and saved an enormous amount of money. In addition, if I had not gone ahead, many people would have suffered greatly.
To return to the arts, if we postpone this theatre museum now, it is bound to cost us more; it cannot

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possibly cost less. In the meantime there will be such a waste of all this material, which will deteriorate, because it always deteriorates when it is kept in places and cupboards where it cannot be used.
I should like to relate one other small experience connected with the arts. I helped a small theatre called the Georgian Theatre in Richmond, Yorkshire, to get going after it had been reconstructed. It was in fact my sister, Lady Crathorne, who raised the money to reconstruct the theatre and it took a little time to get going. But it has been an enormous success. It is a small Georgian theatre of enormous value and it is now one of those theatres which are given grants by the Arts Council and voluntary organisations, and the whole enterprise is run very economically but very successfully. About three or four years ago we found that we had some costumes connected with the Georgian Theatre; we also found some curtains—some mise-en-sceŉ—which were quite important, and we set about raising some money to make a small theatre museum attached to the Georgian Theatre. We were fortunate to find a very generous donor who was interested in the theatre and who gave us some money towards this end, and in the Georgian Theatre we created a small costume museum. I cannot tell your Lordships what a success this has been. It attracts enormous numbers of tourists all the time. Not only do they come to see the theatre, but they come to see the museum. It is a tremendous success.
I am comparing something tiny with a very large and important enterprise. But experience shows that it pays. It brings more young people and more interest. Far from costing a great deal, once you have raised the original sum of money—which in our case was very small and in this case, in comparison, is just about as small—you get a very good return.
I should like to urge my noble friend Lord Gowrie to persuade his colleagues that this is not spending money but investing money in something that will bring in a good return. In addition, it will bring credit to this country from people overseas. It will bring interest; it will be something of which we can all be extremely proud. The longer we postpone this, the more expensive it will become; the longer we wait for an appropriate moment, the less likely that moment will be. I am perfectly certain that this is something which all of us ought to do now. As the noble Lord, Lord Strabolgi, has said, it has already been promised and, from that point of view, I do not like any Government—whether mine or any other—to break their promises. If we were asking for something extravagant, something that would not bring in money and interest and which would not be a great contribution to the arts—certainly in Europe and possibly elsewhere—I should not feel so strongly about it, but I feel very strongly about it indeed. I know that a great many other people in the world of the arts feel the same. I hope that the Government will realise that this is something worth doing. It is not an extravagance; it is not something that will cost vast sums of money; it is something we ought to do now and of which we should be proud.
7.17 p.m.
Lord Birkett: My Lords, as the noble Baroness has said, this is not a party political matter and therefore it is very satisfactory that the deep concern which is felt about the theatre museum should have come already within the first three speeches from three different quarters of the House. Your Lordships might expect me to declare an interest on behalf of the GLC because I work for it, and recreation and the arts in London is my concern within it. But curiously enough I have no concern at all personally with the theatre museum. Hitherto it has been only a matter of a property deal; that is to say, it is dealt with by the valuer on behalf of the planning committee and the Covent Garden Panel which serves it. Nevertheless, being in the GLC I cannot be ignorant of what has been going on and therefore perhaps I might be allowed to say that I think the deal which was arranged and which so nearly went through was indeed a very sensible and a very favourable one.
That site had been empty since 1975 and for almost that length of time has been earmarked for the theatre museum. I can think of no better use for it. As the noble Lord said in moving the Motion, Covent Garden is an ideal place for a theatre museum and in fact I think daily it becomes a better place for a theatre museum. The original restoration of the market has not only been a great success in itself, but it seems to have created ripples right round that area. I begin to see that particular part of London as becoming even more special than it was one or two years ago when it first opened. So it seems to be an ideal place.
I do not think that I shall be giving any secrets away when I reveal to the House that the deal that was very nearly in operation was in fact very favourable for the museum. For a start it gave it five years rent-free. It gave it the next five years at a rent of only a quarter of the market value and that eventually rose only to half the market value. I hope I shall not be pre-empting any future discussions on that site if the Government will let it go free: but I think it is only fair to say that that was a very good deal for the theatre museum and amounts to a very, considerable support on the part of the GLC, even though I cannot claim the credit for it myself on behalf of my own department.
Having said that, let me emphasise just how dramatic the withdrawal of Government funds has been. As I said, the site has been empty since 1975 and negotiations for the theatre museum have been going on for many years now. The latest round were actually complete. The leases between the Department of the Environment and the Greater London Council were signed but not exchanged. It was actually at a meeting of lawyers called to do the exchange that the news came that the Government had decided to withdraw their funds. That is like the plot of a very bad opera.
I should like to join with the noble Lord, Lord Strabolgi, in welcoming the noble Earl the Minister to the Benches as Minister for the Arts. We are all pleased to see him here and we have great hopes for him; and it seems sad to welcome him with one voice—which I do most warmly—and then take him to task exactly 30 seconds later, but that is what we must do this evening, because this decision is a bad stroke for the arts.

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A friend of mine—admittedly one in the museum service—on hearing what had happened said to me cynically that he believed that the Government had changed the name of this post to the Minister Against the Arts, and the only reason that the public did not know it was because there was not enough money in the revenue reserves to change the writing paper. That may have been a cynical comment, and I was able to say to him that I realised, if he did not, that the position of Minister for the Arts is never a particularly easy one. An exciting job it may be, as the noble Earl is no doubt aware, but I suspect always something of a piggy in the middle between the demands of the Treasury forever for economy and of course the demands of the arts world for funds.
I have always suspected that the Treasury mistrusted the arts world not only because it is exceedingly demanding in terms of money but also—much worse—because it is dangerously articulate. That is something which is always suspect in the mind of the public purse. Those who speak most persuasively sometimes get the least, it seems to me. I have to say that I think that is the case in the record of this Government with the arts.
I recognise that the position of the Minister is very difficult indeed, and I was able to say that to my friend when he made these cynical remarks. But my heart was only half in it because, frankly, what a dismal start to this Parliament for the arts to have a great project like this withdrawn at a moment's notice. I very much hope that the noble Earl the Minister will be able to throw these accusations hack in my teeth and reassure me utterly, and I shall be very happy to be penitent about it. If he will only say that this is merely a hiccup in the career of the theatre museum, a temporary and slight delay, then he will no doubt be praised, the Government will be forgiven and we shall all be happy.
However, what with the lease and the collections themselves, and the people who have donated them who may not he patient enough to go on much longer—I should not be surprised if they did not before long ask for them back—if this delay is long enough to lead to the collapse of the theatre museum and the collapse of this worthy project, I predict that the decision will live to haunt this Government, and indeed worse—to haunt this city and the nation.
7.23 p.m.
Lord Jenkins of Putney: My Lords, I wish that I could follow my noble friend, as I think I may call him, Lord Birkett, in his optimistic belief that this is only a hiccup, and that it was through some little error that the exchange of contracts failed to take place. Hope springs eternal in the human breast—not only in Lord Birkett's but even in mine—and I hope against hope that we are going to hear tonight from the noble Earl, Lord Gowrie, that it was all a mistake, and that in fact the theatre museum is going ahead as planned. Make no mistake about it, unless it goes ahead as planned it will not go ahead at all. If, as The Times said, this delay which has taken place is not denied tonight, the theatre museum delay may be final. In other words, there may be no theatre museum unless we go ahead with it on the terms currently under offer.
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The Times said:
"A statement from the Office of Arts and Libraries yesterday said that the £5 million scheme will not go ahead for the time being, but it is feared that the postponement will he a long if not a final one".
Therefore, I thought that we had better see what the statement actually said, but I have been unable to find any statement. Apparently no formal statement was in fact made. I do not know where The Times got the information from or where anybody else got it from, but, according to my information, the Office of Arts and Libraries said that there was no formal statement concerning the theatre museum but that a statement will be made tonight by the Minister. Well, of course it will, because he will be replying to this Question. But what sort of a statement is he going to make? Is he going to confirm what The Times said yesterday or is he going to deny it? This is the 64,000 dollar question.
I congratulate my noble friend Lord Strabolgi on raising this question tonight, because it is urgent and important, but I cannot follow him in congratulating the Minister upon his appointment. I hope, like the noble Lord, Lord Birkett, that I shall be able to do so at the end of the debate. If so, I shall ask him before he sits down to accept my congratulations, though at the moment I can see nothing to congratulate him upon. I am very ready to utter those words if by the time he sits down he has given me something to congratulate him upon. But at the moment what have I got to congratulate him upon? The destruction of something which, when the last debate took place on this subject, was replied to in a very different way?
In an Unstarred Question which I asked last July in this Chamber, I asked the Government to reject the Rayner recommendation that the theatre museum be abandoned. I enjoyed the unusual experience of having every subsequent speaker agree with me. The noble Lord, Lord Cottesloe, was wholehearted; the noble Viscount, Lord Norwich, was trenchant; the noble Earl, Lord Bessborough, pointed out that the West Germans, whose theatrical history certainly is not more important than ours, were on the point of spending £17 million on a theatre museum in Cologne against our £4 million. The noble Viscount, Lord Chandos, spoke for Lord Donaldson as well when he said that this betrayal—this betrayal, he called it, and I think rightly—must not be allowed to occur. The noble Lord, Lord Gibson, said that to abandon the theatre museum would be a breach of faith. The noble Baroness, Lady Elliot, who has spoken equally trenchantly tonight, and the noble Viscount, Lord Mersey, said—and I am sure that they were right then and that the noble Baroness is right tonight—that they spoke for many Conservative Peers in saying that the theatre museum must not go.
The noble Earl, Lord Avon, welcomed these speeches, and it was an open secret at the time that the then Minister, Mr. Channon, who sat on the steps of the Throne for much of that debate, warmly welcomed the unanimous support given in this House for the struggle he was having to persuade the Government, and in particular the Treasury, to throw out the Rayner recommendation. Indeed, the noble Earl, Lord Avon, said, recalling the history of the theatre museum:
"The process took a new turn following the decision announced by Lord Jenkins when he was Minister of State for the Arts on 5th

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September 1975 that the museum should go to the premises of the former flower market in, Covent Garden. We all pay tribute to him, everybody has done so in this evening for that decision.".
I do not want tributes. What I want is a theatre museum, and it looks tonight as though we are not going to get one. I have had the tributes, but of what use are they to the reputation of this country about this museum?
This is quite important. It is not a slight thing. As my noble friend has said, contributions had been made to this theatre museum on the understanding that they would be displayed, and displayed properly in a museum built for the purpose. It is a breach of faith—and this is not a term used by me, it is a term used on the other side of the House.
There can be little doubt about that, because, as recently as 18th October last, the then Minister for the Arts said:
"I announced on 11th August"—
that was after our debate of last year—
"the Government's conclusion that the proposed theatre museum project in the old flower market in London's Covent Garden should go ahead".
He added:
"I am grateful to the honourable Member"—
a Member who had intervened—
"for his kind remarks, and I assure him that we are determined that the project shall go ahead".
There could not have been anything more certain, more straightforward, more positive. So we all thought that Rayner had been rejected and the museum was established. This news, as the noble Lord, Lord Birkett, has said, has come as a very great shock. There is still hope that this might not occur.
The director of the Victoria and Albert Museum, Sir Roy Strong, expressed himself trenchantly according to the Standard. He said that the future of the theatre museum had reached the make or break stage. He said:
"We cannot go on like this. Unless there is a specific pledge to make the money available I will go to my board of trustees and recommend that everything that has been collected for the Theatre Museum should be retumed to its owners.
"We are acting under false pretences if we retain artefacts that have been given to the nation and do not place them on display".
That statement was made by Sir Roy Strong today and it contrasts with a statement he has alleged to have made yesterday when he appeared in the first instance almost to accept the decision which had been made. It is clear that having thought it over Sir Roy does not accept this decision. He is not alone in that. Mr. Shouvaloff, the director of the theatre museum under Sir Roy, is quite unwilling to accept this decision.
As a Minister I personally welcomed the objections which were raised from time to time when any doubt was cast upon the future of the theatre museum, just as the right honourable gentleman, Mr. Channon, welcomed our debate here last year. I hope that the present Minister is welcoming this debate as a means of reminding the Prime Minister that the loss of the theatre museum is one of those candle-end economies she promised not to inflict upon us. If the Minister does not change his mind he will make a very poor start. No matter with what good intentions he paves
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his path, he will finish in obloquy. I am sure that the Minister does not want that, but I warn him that if the theatre museum is not to go ahead—if this is not merely a postponement—if the Minister is unable to give us an assurance that the theatre museum will go ahead at a stated time within the immediate future, then the statements we have heard here tonight are not the end of the rumpus but only the beginning.
7.34 p.m.
The Earl of Gowrie: My Lords, I intend to make a rather brief response to the debate. This is precisely because the subject is such an important one, because the issues are so clear and because I do not want to be accused of any obfuscation whatsoever of them. Praise has been bestowed on the concept of the national theatre museum and on the many individuals who have expended time, money and energy on bringing it to fruition. I am glad to endorse what has been said and to praise all concerned most warmly. I fully understand the disappointment and anxiety occasioned by my decision not to authorise signature last Thursday of the lease with the GLC for the Covent Garden building. As a resident of Covent Garden, as well as a Minister, I share in the disappointment and I very well understand the anxiety.
I am glad to be able to say that there is no change of policy over the theatre museum. This project has been endorsed by the Government and we very much hope to see its realisation. Like the noble Lord, Lord Birkett, I hope that my speech is a hiccup rather than an elegy. I could not allow the signing of the lease for a very simple reason. The very simple reason was that signature would have committed me to nearly £1 million of spending in this financial year.
I would say to the noble Lord, Lord Strabolgi, who questioned me about the technicalities of this, that the lease agreement alone could not have been signed last Thursday as an act of commitment and good faith because it contained a stipulation which was put in at the GLC's request on the timetable of building work. Therefore, the building contracts became operative more or less simultaneously. The signing was due to take place, not as the noble Lord, Lord Strabolgi, suggested, on Friday, but on Thursday at the very moment that the Chancellor of the Exchequer was announcing his plans for correcting a substantial threatended overspend on the public accounts. The Chancellor has to live within his means and, therefore, so do I. I would say to the noble Lord, Lord Jenkins of Putney, that I am quite determined, during my tenure of office as Arts Minister, to give no false signals to the world of the arts, about which we all care so much. The world of the arts has its fate intimately wound up with the overall improvement of the economy, to which, as an Administration, we are committed.
It would have been quite inequitable to the many other calls on my budget for the arts and museums if I had, by authorising signature of the lease, effectively pre-empted any reduction whatsoever on the theatre museum in this fiscal year. Protection of the theatre museum would have had to be paid for, so to speak, by other arts bodies, and the House will appreciate that much of my programme has already been committed in financial terms. It seemed to me better to defer this project—thoroughly worthy though I believe it to

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be—while I looked closely at all those projects which were already under way. I needed time to look at my budget in general and to discover where my own contribution to the correctiion of the overspend could most equitably and reasonably be made.
Due to the coincidence of the signing of the lease with the Chancellor's statement, it was only fair to all my clients as Arts Minister that I should have time to weigh up all the corrections that might have to be made. I acknowledge that that was not the fault of the many admirable people concerned with the theatre museum or of the GLC; but nor was it my right honourable friend's fault or mine. It is never convenient to lose money or to discover that one does not have the money that one thought one had or to be faced with the predictable, damaging reaction of one's creditors, if one fails to cut one's clothes according to one's cloth. I say to my noble friend Lady Elliot of Harwood—I was extremely impressed by the eloquence of her speech and agreed with nearly everything she said—that no distinction, unfortunately, is made by money markets between spending for investment and spending for current liabilities. The money always costs the same amount.
Government spending is based not on need but on the resources which are available to fulfil needs. In an era of nil or low rates of growth, these resources are threatened by an excess of borrowing or taxation over planned limits. So too is economic recovery with all its implications for greater growth and a greater pool or resources. I can assure the House that on behalf of the arts and on behalf of the theatre museum itself I am as anxious as anyone that the pool should grow bigger and that I should be able to draw from it. But the House will appreciate that I cannot reasonably expect the arts and libraries programe overall to be exempted from their contribution to reducting the risk of there having to be increased borrowing or taxation, neither of which would do any good to the arts or to their patrons.
I appreciate that people outside the House as well as inside it want to know where they stand on this project. I should like to make it clear by repeating that Government policy towards the theatre museum remains unchanged. It is my intention that the project should go ahead on the basis to have been agreed last Thursday, provided that the resources allowed it are available, without excessive damage to the continuing commitments elsewhere. When the project starts depends upon the outcome of the 1983–84 cash limit reductions now under detailed consideration and on whether my expenditure programme for future years remains broadly at its currently planned level and does not have to accommodate substantial new burdens.
Meanwhile it is only prudent to assume that the theatre museum project will not now be able to start before the end of the fiscal year 1983–84; that is to say, before 1st April next year. Let me repeat that I need no convincing regarding the value of this project. There has not been a change of policy. There is unfortunately at the present time a change in the resources available to put that policy into effect.
Lord Strabolgi: My Lords, before the noble Earl sits down—and we are grateful to him for what he has said; although it is disappointing but it might have been
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worse—would he please answer my question about the lease? Is he going to ensure that the building is not lost?
The Earl of Gowrie: My Lords, I said in my statement that there is no change of policy on the basis which was agreed last Thursday. I rest on that.

Dartford Tunnel Bill [H.L.]
Reported from the Unopposed Bill Committee with amendments.
House adjourned at eighteen minutes before eight o'clock.